# Electronic Signatures, Forms and Storage for Drug and Alcohol Testing Records

- **operation:** document
- **citation:** 89 FR 82957
- **title:** Electronic Signatures, Forms and Storage for Drug and Alcohol Testing Records
- **source type:** rulemaking
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** proposed
- **official:** true
- **published on:** 2024-10-15
- **effective on:** Not available
- **summary:** The Department of Transportation (DOT or Department) proposes to amend its regulations for conducting workplace drug and alcohol testing for the federally regulated transportation industry to allow, but not require, electronic signatures on documents required to be created and utilized under the regulations, the use of electronic versions of forms, and the electronic storage of forms and data. The regulatory changes would apply to DOT-regulated employers and their contractors ("service agents") who administer their DOT-regulated drug and alcohol testing programs. Currently, employers and their service agents must use, sign and store paper documents exclusively, unless the employer is utilizing a laboratory's electronic Federal Drug Testing Custody and Control Form (electronic CCF) system that has been approved by the Department of Health and Human Services (HHS). DOT is required by statute to amend its regulations to authorize, to the extent practicable, the use of electronic signatures or digital signatures executed to electronic forms instead of traditional handwritten signatures executed on paper forms. This rulemaking also responds to an April 2, 2020, petition for rulemaking from DISA Global Solutions, Inc. (DISA), requesting that DOT regulations be amended to allow the use of an electronic version of the alcohol testing form (ATF) for DOT-authorized alcohol testing. The proposed regulatory amendments are expected to provide additional flexibility and reduced costs for the industry while maintaining the integrity and confidentiality requirements of the drug and alcohol testing regulations. In addition, DOT proposes to amend the Pipeline and Hazardous Materials Safety Administration (PHMSA) regulation for conformity and to make other miscellaneous technical changes and corrections.
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Federal Register, Volume 89 Issue 199 (Tuesday, October 15, 2024) [Federal Register Volume 89, Number 199 (Tuesday, October 15, 2024)] [Proposed Rules] [Pages 82957-82968] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2024-23427] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Office of the Secretary 49 CFR Part 40 Pipeline and Hazardous Materials Safety Administration 49 CFR Part 199 [Docket DOT-OST-2022-0027] RIN 2105-AF01 Electronic Signatures, Forms and Storage for Drug and Alcohol Testing Records AGENCY: Office of the Secretary, Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). ----------------------------------------------------------------------- SUMMARY: The Department of Transportation (DOT or Department) proposes to amend its regulations for conducting workplace drug and alcohol testing for the federally regulated transportation industry to allow, but not require, electronic signatures on documents required to be created and utilized under the regulations, the use of electronic versions of forms, and the electronic storage of forms and data. The regulatory changes would apply to DOT-regulated employers and their contractors (``service agents'') who administer their DOT-regulated drug and alcohol testing programs. Currently, employers and their service agents must use, sign and store paper documents exclusively, unless the employer is utilizing a laboratory's electronic Federal Drug Testing Custody and Control Form (electronic CCF) system that has been approved by the Department of Health and Human Services (HHS). DOT is required by statute to amend its regulations to authorize, to the extent practicable, the use of electronic signatures or digital signatures executed to electronic forms instead of traditional handwritten signatures executed on paper forms. This rulemaking also responds to an April 2, 2020, petition for rulemaking from DISA Global Solutions, Inc. (DISA), requesting that DOT regulations be amended to allow the use of an electronic version of the alcohol testing form (ATF) for DOT-authorized alcohol testing. The proposed regulatory amendments are expected to provide additional flexibility and reduced costs for the industry while maintaining the integrity and confidentiality requirements of the drug and alcohol testing regulations. In addition, DOT proposes to amend the Pipeline and Hazardous Materials Safety Administration (PHMSA) regulation for conformity and to make other miscellaneous technical changes and corrections. DATES: Comments on this NPRM must be received on or before December 16, 2024. ADDRESSES: You may submit comments identified by Docket Number DOT-OST- 2022-0027 using any of the following methods: Federal eRulemaking Portal: Go to https://www.regulations.gov/docket/DOT-OST-2022-0027/document . Follow the online instructions for submitting comments. Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, Room W12-140, Washington, DC 20590-0001. Hand Delivery or Courier: West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations. Fax: 202-493-2251. To avoid duplication, please use only one of these methods. See the ``Public Participation and Request for Comments'' portion of the SUPPLEMENTARY INFORMATION section for instructions on submitting comments, including collection of information comments for the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB). FOR FURTHER INFORMATION CONTACT: Mike Huntley, Office of Drug and Alcohol Policy and Compliance, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone number 202-366-3784; [email protected] . If you have questions on viewing or submitting material to the docket, contact Docket Services, telephone (202) 366-9826. SUPPLEMENTARY INFORMATION: This NPRM is organized as follows: I. Executive Summary II. Public Participation and Request for Comments [[Page 82958]] A. Submitting Comments B. Viewing Comments and Documents C. Privacy Act III. Legal Basis for the Rulemaking IV. Background V. Advance Notice of Proposed Rulemaking (ANPRM) Overview VI. Federal Motor Carrier Safety Administration (FMCSA) Rulemaking on Electronic Documents and Signatures VII. Amending Part 40 To Permit Electronic Documents and Signatures VIII. Electronic ATF IX. Section-by-Section Analysis X. Regulatory Analyses and Notices I. Executive Summary Purpose and Summary of the Major Provisions This proposed rule would establish parity between paper and electronic documents and signatures and expand businesses' and individuals' ability to use electronic methods to comply with the Department's drug and alcohol testing regulation, 49 CFR part 40, ``Procedures for Transportation Workplace Drug and Alcohol Testing Programs'' (part 40). Businesses and individuals subject to part 40 would continue to have the choice to use paper documents and traditional ``wet'' signatures. This proposed rule would also modify references to recordkeeping and reporting methods throughout part 40 to make them technologically neutral. This proposed rulemaking responds to a statutory mandate set forth in section 8108 of the Fighting Opioid Abuse in Transportation Act, part of the SUPPORT for Patients and Communities Act, Public Law 115- 271 (see 49 U.S.C. 322 note). The proposed rulemaking would take action consistent with the Government Paperwork Elimination Act (GPEA) (division C, title XVII, secs. 1701-1710, Pub. L. 105-277) and the Electronic Signatures in Global and National Commerce Act (E-SIGN) (Pub. L. 106-229) with regard to DOT's part 40 regulations. II. Public Participation and Request for Comments A. Submitting Comments If you submit a comment, please include the docket number for this NPRM (Docket No. DOT-OST-2022-0027), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. The Office of the Secretary (OST) recommends that you include your name and a mailing address, an email address, or a phone number in a cover letter or an email so that OST can contact you if there are questions regarding your submission. To submit your comment online, go to https://www.regulations.gov/docket/DOT-OST-2022-0027/document , click on this NPRM, click ``Comment,'' and type your comment into the text box on the following screen. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope. OST will consider all comments and material received during the comment period in determining how to proceed with any final rule. B. Viewing Comments and Documents To view comments, as well as any documents mentioned in this preamble as available in the docket, go to https://www.regulations.gov . Insert the docket number, DOT-OST-2022-0027, in the keyword box, and click ``Search.'' Next, click the ``Open Docket Folder'' button and choose the document to review. If you do not have access to the internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting the Docket Management Facility. C. Privacy Act In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov , as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices under the heading of ``Department-Wide System of Records Notices''. III. Legal Basis for the Rulemaking This rulemaking is promulgated under the authority enacted in the Omnibus Transportation Employee Testing Act of 1991 (OTETA) (Pub. L. 102-143, tit. V, 105 Stat. 952) and codified at 49 U.S.C. 45102 (aviation), 49 U.S.C. 20140 (rail), 49 U.S.C. 31306 (motor carrier), and 49 U.S.C. 5331 (public transportation), as well as the Department's authority in 49 U.S.C. 322 and the PHMSA authorities specified in the proposed regulatory text for this action. According to Public Law 115-271, the Secretary of Transportation is required to ``issue a final rule revising part 40 of title 49, Code of Federal Regulations, to authorize, to the extent practicable, the use of electronic signatures or digital signatures executed to electronic forms instead of traditional handwritten signatures executed on paper forms.'' (49 U.S.C. 322 note) The statute set the deadline for this action as not later than 18 months after HHS establishes a deadline for a certified laboratory to request approval for fully electronic CCFs (Id.) On April 7, 2022, HHS set that deadline as August 31, 2023 (87 FR 20528). HHS has extended the deadline to August 31, 2026, to enable sufficient time for all HHS-certified laboratories to identify and contract with an electronic CCF supplier or to develop an electronic CCF. The deadline for DOT's regulatory amendments would therefore be February 29, 2028. There are two additional Federal statutes relevant to the implementation of electronic document and signature requirements. The Government Paperwork Elimination Act (GPEA), codified at 44 U.S.C. 3504 note,\1\ was enacted to improve customer service and governmental efficiency through the use of information technology. The GPEA defines an electronic signature as a method of signing an electronic communication that: (a) identifies and authenticates a particular person as the source of the electronic communication; and (b) indicates such person's approval of the information contained in the electronic communication. Id. It also requires OMB to ensure Federal agencies provide for: (a) the option of maintaining, submitting; or disclosing information electronically, when practicable; and (b) the use and acceptance of electronic signatures when practicable. The GPEA states that electronic records submitted pursuant to procedures developed under title XVII for the submission of records to Federal agencies and electronic signatures used in accordance with those procedures shall not be denied legal effect, validity, or enforceability merely because they are in electronic form. Id. --------------------------------------------------------------------------- \1\ Division C, title XVII (sec. 1701-1710) of Public Law 105- 277, 112 Stat. 2681-749, enacted on October 21, 1998. --------------------------------------------------------------------------- [[Page 82959]] The Electronic Signatures in Global and National Commerce Act (E- SIGN), codified at 15 U.S.C. 7001-7031,\2\ was designed to promote the use of electronic contract formation, signatures, and recordkeeping in private commerce by establishing legal equivalence between traditional paper-based methods and electronic methods. The E-SIGN Act allows the use of electronic records to satisfy any statute, regulation, or rule of law requiring that such information be provided in writing if the consumer has affirmatively consented to such use and has not withdrawn consent. Specifically, the statute establishes the legal equivalence of the following types of documents with respect to any transaction in or affecting interstate or foreign commerce, whether in traditional paper or electronic form: (a) contracts, (b) signatures, and (c) other records (15 U.S.C. 7001(a)(1)). --------------------------------------------------------------------------- \2\ Public Law 106-229, 114 Stat. 464, enacted on June 30, 2000. --------------------------------------------------------------------------- IV. Background The Department's drug and alcohol testing regulations were promulgated at a time when the ability to sign and retain official records electronically--now commonplace in many business segments--was not available. Over the course of several years, we have adopted measures that have reduced the paper documentation associated with the drug and alcohol testing program without compromising the integrity and confidentiality requirements of the program. In 2003, we standardized the form for employers to report their Management Information System (MIS) aggregate drug and alcohol testing data, as well as the specific data collected.\3\ When creating a ONE-DOT MIS Form, we then authorized employers to submit a single standardized form via a web portal. In 2015, we issued a final rule to allow employers, collectors, laboratories, and medical review officers (MROs) to use the electronic version of the Federal Drug Testing CCF in the DOT-regulated drug testing program.\4\ That final rule also incorporated into the regulations the requirement to establish adequate confidentiality and security measures to ensure that confidential employee records are not available to unauthorized persons when using the electronic CCF. We also included language protecting the physical security of records, access controls, and computer security measures to safeguard confidential data in electronic form when using the electronic CCF. --------------------------------------------------------------------------- \3\ 68 FR 43946 (July 25, 2003). \4\ 80 FR 19551 (Apr. 13, 2015). --------------------------------------------------------------------------- Consistent with the statutory mandate in 49 U.S.C. 322 note, we propose amendments to part 40 to permit the use of electronic signatures, forms, and records storage for drug and alcohol testing records throughout the regulation, including the use of an electronic ATF for DOT-authorized alcohol testing. We emphasize that electronic signatures, forms, and records would not be required; we would continue to allow paper, or hard-copy use with traditional ``wet signatures.'' These proposed amendments would establish parity between paper and electronic collection and submission of information required under our regulations (and remain compatible with applicable OMB guidance on implementing electronic signatures \5\) by allowing further use of electronic means and methods to comply with part 40 requirements. Many employers and their service agents have already instituted the use of electronic signatures, forms, and records storage for the non-DOT regulated testing that they conduct. DOT supports this transition to a paperless system and is committed to ensuring that the movement to a partially or fully electronic part 40 is done to maximize program efficiencies and reduce costs, while maintaining the integrity and confidentiality requirements of the program. --------------------------------------------------------------------------- \5\ https://www.whitehouse.gov/wp-content/uploads/2017/11/2000-M-00-15-OMB-Guidance-on-Implementing-the-Electronic-Signatures-in-Global-and-National-Commerce-Act.pdf . --------------------------------------------------------------------------- Electronic documents would have a high degree of forensic defensibility as long as any changes made to the document are in the document's electronic footprint, which shows when the document or signature, as applicable, was created; when, and if, changes were made; who made the changes; and when, as applicable, a document was transmitted to and received by the receiving entity. The use of electronic forms and signatures in part 40 would help DOT-regulated employers and their service agents improve their workflow efficiency through faster turnaround times for required documents. Cost savings would result through reduced printing and delivery/shipping costs, and expedited transmission of information allowing for more timely decisions. We believe this proposed rule, if adopted, would also mitigate the longstanding problems (e.g., delays in processing times of test results, cancelling of test results, etc.) associated with illegible and lost copies of paper documents. V. Advance Notice of Proposed Rulemaking (ANPRM) Overview On August 5, 2022, we published an ANPRM requesting public comment on how part 40 could be amended, as required by the statute, to allow electronic signatures, forms, and recordkeeping (87 FR 47951). We requested information from DOT-regulated employers and their service agents regarding if and how they are already handling electronic signatures, records transmission, and records storage in their non-DOT testing programs. In addition, we requested comments and information on appropriate performance standards, and on whether particular methods or performance standards have been successful or unsuccessful. We also asked a number of general questions on the potential advantages, risks, ramifications, and required safeguards associated with the use of electronic signatures, forms, and records in the DOT drug and alcohol testing program. We asked questions about specific sections of part 40 that we anticipated would be affected by prospective changes to implement electronic signatures, forms, and records. Finally, we asked a number of questions regarding the use of an electronic ATF for DOT- regulated alcohol tests. We received 72 comments in response to the ANPRM, including comments from individuals, testing laboratories, MROs, and MRO organizations, substance abuse professionals (SAP) and SAP organizations, and various associations representing DOT-regulated transportation workers subject to mandatory drug and alcohol testing under part 40. A few individuals expressed opposition to the adoption of electronic signatures, forms, and recordkeeping, citing concerns about the need for the rulemaking, risk to personal information from hackers or mismanaged electronic processes and procedures, and misuse of electronic forms and signatures. To meet our statutory mandate and in consideration of concerns about safeguarding personal information and appropriate use of the information in developing the NPRM, DOT proposes to require security measures for electronic forms and signatures used under part 40 that are the same as those currently in place for the electronic CCF specified in 49 CFR 40.40(c)(5). Most commenters were supportive of changes to amend part 40 that would permit, but not require, the use of electronic signatures, forms, and [[Page 82960]] recordkeeping. Commenters supporting revisions to part 40 noted that electronic signatures, forms, and recordkeeping are used in virtually every industry today--including but not limited to the banking, insurance, medical, and legal industries. Commenters supported the use of performance standards instead of technology-specific standards to ensure that, once established, standards do not become obsolete given the rapidly evolving nature of information technology standards and practices. Commenters stated that allowing electronic signatures, forms, and recordkeeping would make the drug testing process much more efficient and would result in cost savings. Commenters also stated that it would be safer to store records electronically since records could be backed-up, secured, and protected from tampering and unauthorized access and use. VI. Federal Motor Carrier Safety Administration (FMCSA) Rulemaking on Electronic Documents and Signatures In developing this NPRM, we looked to a rule promulgated by DOT's FMCSA that permits the use of electronic methods to generate, certify, sign, maintain, or exchange records so long as the documents accurately reflect the required information and can be used for their intended purpose. (83 FR 16210, Apr. 16, 2018) The rule applies to documents that FMCSA requires entities or individuals to retain. FMCSA permits, but does not require, anyone to satisfy FMCSA requirements by using electronic methods to generate, maintain, or exchange documents. The substance of the document must otherwise comply with applicable Federal laws and FMCSA rules. FMCSA also permits, but does not require, anyone required to sign or certify a document to do so using electronic signatures, defined, as in the GPEA, as a method of signing an electronic communication that: (1) identifies and authenticates a particular person as the source of the electronic communication; and (2) indicates such person's approval of the information contained in the electronic communication. FMCSA allows for the use any available technology for electronic signatures, so long as the signature otherwise complies with FMCSA's requirements. FMCSA adopted broad performance standards for electronic documents and signatures--as specified in GPEA and E-SIGN--rather than detailed, technology specific standards that would likely become obsolete with inevitable changes in information technology standards and practices. FMCSA's April 2018 rule has been in effect for more than five years, and the definitions and requirements established in that rule have stood the test of time despite the many changes that have occurred with respect to electronic documents and signatures. We are unaware of any FMCSA-regulated entities that have reported issues to FMCSA regarding the use of electronic documents or signatures to meet the requirements of the FMCSRs since the rule became effective in 2018. VII. Amending Part 40 To Permit Electronic Documents and Signatures In this NPRM, we propose to permit but not require electronic documents, signatures, and recordkeeping in part 40. Additionally, we propose a performance standard approach as opposed to establishing technology-specific standards. Where it is possible to do so, establishing the same or substantively similar regulatory requirements for common issues across DOT modal agencies--such as the use of electronic documents and signatures--helps the Department maintain a consistent regulatory approach for those common issues. There are currently more than 60 references to the term ``written'' in part 40, and more than 20 additional references to the term ``in writing.'' We propose to add a definition of ``written or in writing'' in part 40, to eliminate any distinction between paper and electronic documentation and establish technological neutrality throughout the entirety of part 40. FMCSA's rule does not apply to documents that individuals or entities are required to file directly with FMCSA. In its April 2018 final rule, FMCSA explained that while industry could use electronic signatures and submit information directly to the FMCSA in certain situations,\6\ adapting all FMCSA systems to allow for use of electronic signatures and submissions would significantly delay the implementation of the rule for use by third parties as it would require FMCSA to develop and implement technology systems to allow for direct submission to FMCSA from regulated parties. FMCSA noted that development of such systems could take several years, and therefore saw no reason to make private parties' use of electronic signatures and records retention contingent upon FMCSA's ability to receive submissions electronically because doing so would delay potential benefits to be gained by third parties. --------------------------------------------------------------------------- \6\ As an example, Certified Medical Examiners may use electronic signatures, if they choose to do so, to sign medical forms, certificates, and a new driver medication report. If FMCSA requests these forms, they are uploaded in portable document format (PDF) to the Medical Examiner's account associated with the National Registry of Certified Medical Examiners for FMCSA to access. --------------------------------------------------------------------------- In contrast to FMCSA's regulations, part 40 does not require entities or individuals to submit documents directly to the Department except for MIS aggregate drug and alcohol testing data that employers subject to DOT or U.S. Coast Guard (USCG) drug and alcohol testing regulations must submit annually. Each of the various documents required and used as part of the DOT drug and alcohol testing program under part 40 (e.g., employee drug and alcohol testing records, MRO reports and records, SAP reports and records) are documents that are created by, exchanged between, and maintained by a person or entity involved in the testing process--but are not required to be submitted directly to DOT. As noted earlier, and specifically with respect to the required MIS data, we standardized the form for employers to report their aggregate drug and alcohol testing data, as well as the specific data collected, more than 20 years ago. At that time, we authorized employers to submit the ONE-DOT MIS form via a web portal. Today, the Federal Aviation Administration, FMCSA, Federal Railroad Administration, and Federal Transit Administration permit employers to submit that same drug and alcohol testing data via the internet, and PHMSA requires that the data be submitted electronically. If employers submit the data electronically via the internet, they are not required to submit a hard copy. DOT recommends that employers have a copy of their data available (either hard copy or in electronic format) in the event an auditor or inspector requests a copy. From the above, and because the only documents that part 40 requires to be submitted directly to the Department are already permitted to be, and in some cases required to be, submitted electronically, there is no need for us to limit the applicability of our proposal as FMCSA did in its 2018 final rule. Several commenters noted that they already use electronic signatures and documents for their non-DOT drug and alcohol testing program, and in some cases, have done so for many years. In doing so, these commenters have had to establish appropriate confidentiality and security measures to ensure that confidential employee records cannot be accessed by unauthorized persons, including protecting the physical security of records, access controls, and computer security measures to safeguard confidential data in electronic [[Page 82961]] form. The same general requirements were added to the current Sec. 40.40(c)(5) when we approved the use of the electronic CCF for use in DOT drug testing in 2015,\7\ and we propose the same requirements in this NPRM for the use of electronic signatures, documents, and recordkeeping throughout the entirety of part 40. --------------------------------------------------------------------------- \7\ The 2015 revisions amended then Sec. 40.45(c)(5), which was redesignated as Sec. 40.40(c)(5) in the May 2023 final rule to include oral fluid testing in the DOT drug testing program (88 FR 27596, May 2, 2023). --------------------------------------------------------------------------- Ensuring that confidential employee records are not available to unauthorized persons is an important element of part 40's protections for employees that are subject to DOT's drug and alcohol testing rules. We believe that the failure of a service agent to provide or maintain a secure/confidential electronic system should constitute the basis for the Department to start a public interest exclusion (PIE) proceeding, and propose to add this to the list of examples provided in Sec. 40.365(b). Throughout part 40, information and documents are required to be transmitted and/or communicated between service agents (e.g., collectors, screening test technicians (STTs) and breath alcohol technicians (BATs), laboratories, MROs, SAPs, and consortium/third party administrators (C/TPAs)), employers, and employees). Although part 40 does not currently require the party receiving these communications and/or documents to affirmatively confirm receipt of such from the sender, in some instances, regardless of whether the document is electronic or a hard copy, we believe that it may be important for the receiving party to verify that those required communications and/or documents were received. For example, under Sec. 40.25, an employer intending to use an employee to perform safety-sensitive functions must, after obtaining an employee's written consent, request information about the employee's drug and alcohol testing record from previous DOT-regulated employers. After receiving a copy of the employee's written consent, the previous employer must immediately provide the requested information to the employer making the inquiry. If an employer is subsequently investigated/audited by the appropriate DOT mode, it may be beneficial for both the gaining employer and the previous employer to be able to affirmatively demonstrate that the employee's written consent and previous testing record were sent and received as required. Sections 40.191(d) and 40.261(c)(1) require a collector or MRO (for drug tests) or a BAT, STT, or a physician evaluating a ``shy lung'' situation (for alcohol tests), respectively, to--when an employee refuses to participate in a part of the testing process--terminate the testing process, document the refusal, and immediately and directly notify the employer's designated employer representative (DER) by any means that ensures the refusal notification is immediately received. Because this notification of a refusal to an employer is of an urgent nature, it may be advisable to require the DER to affirmatively confirm receipt of the required notification from the collector, MRO, BAT, STT, or physician. For example, Sec. Sec. 40.191(d) and 40.261(c)(1) could be amended to read ``. . . immediately notify the DER by any means and ensure that the refusal notification is immediately received''. While we are not proposing new requirements in this NPRM regarding confirmation of receipt in the sections discussed above (or in other part 40 requirements), we seek comment regarding whether it may be beneficial or advisable to do so, and if so, for which specific sections of part 40. VIII. Electronic ATF The ATF has been in use in the DOT alcohol testing program since 1994 (see 59 FR 7349, Feb. 15, 1994). The ATF must be used to document every DOT alcohol test. DOT regulations at 49 CFR 40.225 set forth the requirements for use of the form, and 49 CFR part 40, appendix G, contains a facsimile (reference copy) of the form. The ATF is a three- part carbonless manifold form used by DOT-regulated employers to document the testing event when testing employees subject to DOT alcohol testing. When the employee is tested, both the employee and the STT and/or the BAT will complete the ATF in various sections. The STT/ BAT documents the result(s) by either writing in the screening result or attaching the screening and/or confirmation result printed by the evidential breath testing devices (EBT) onto the ATF, and then sends Copy 1 to the employer, provides Copy 2 to the employee, and retains Copy 3 for their records. On April 2, 2020, DISA petitioned the Department to amend part 40 to allow for the use of an electronic version of the ATF for DOT mandated alcohol testing. In support of its petition, DISA stated that ``The requested amendment to 49 CFR part 40 will enable a parallel process for the documentation of DOT-mandated alcohol tests aligned with the similarly situated amendment previously approved for drug testing.'' DISA believes that allowing the use of an electronic ATF will result in several benefits to the industry, including ``increased efficiency, security and accuracy in documentation of DOT alcohol tests; paperwork reduction; improved process for conducting a DOT alcohol test in conjunction with a DOT drug test when an electronic version of the federal CCF is used for the drug test; reduction of errors and omissions in the completion of the ATF; and improved efficiency and efficacy in the transmission and record retention of alcohol test results.'' DISA noted that non-DOT workplace breath alcohol testing has been conducted using electronic versions of an alcohol testing form that mirrors the DOT ATF for more than five years. Based on experience using those electronic forms for non-DOT testing, DISA cites improved efficiency and accuracy of documentation because: (1) employer and employee information is entered via computer and thus not dependent on reading and deciphering hand-written entries, (2) date time stamps of the testing are automated and not subject to fluctuation or error, (3) transmission of documentation on completed tests is more secure using databases accessed only via protected password and personal identification number (PIN) to authorized employers or their designated agents, and (4) transmission of test result information is faster and more secure than existing transmission options of scanning and emailing attachments or facsimile. DISA also noted that permitting use of an electronic ATF for DOT- regulated alcohol testing ``will substantially reduce cost, by eliminating the requirement for the printing and distribution of carbonless three-ply paper ATFs. The proposed electronic ATF option would still provide for printed paper images to be made available to the employee, the employer, and the alcohol technician, [but] eliminates the requirement for the more expensive carbonless 3 ply paper ATF.'' For the reasons described by DISA in its petition, and recognizing that significant benefits and cost reductions have resulted from use of the electronic CCF for drug testing, we believe that it is likewise appropriate to permit the use of electronic ATFs in part 40 for DOT- regulated testing. Permitting but not requiring the use of an electronic ATF would be consistent with our proposal to permit, but not require, the use of electronic documents and signatures throughout the entirety of part 40 as discussed above. As several commenters [[Page 82962]] noted, the use of an electronic ATF has been used in non-DOT testing for 5-10 years, and the same developers of the electronic CCFs have developed the electronic ATFs. Any electronic ATF used under part 40 for DOT-regulated employees would have to be identical in form and content to the DOT ATF in appendix I to part 40.\8\ Just as we imposed general confidentiality and security requirements when electronic CCFs were permitted to be used under part 40, we believe that it is necessary to include the same general requirements relating to the use of electronic ATFs to ensure that confidential employee records cannot be accessed by unauthorized persons. --------------------------------------------------------------------------- \8\ The ATF form was redesignated from appendix G to appendix I as part of the rulemaking process culminating in the May 2023 final rule. During that process, the form was reviewed by the public and DOT received no comment on the form. --------------------------------------------------------------------------- Manufacturers of EBTs and alcohol screening devices (ASD) used in DOT alcohol tests must obtain approval from the National Highway Traffic Safety Administration (NHTSA) and then be listed on the Office of Drug and Alcohol Policy and Compliance's (ODAPC) website before those devices may be used in DOT alcohol testing. IX. PHMSA Proposed Changes PHMSA is proposing to amend Sec. Sec. 199.3, 199.117, and 199.227 and to add Sec. 199.4 to conform to the proposed changes in part 40 and to clarify that the proposed changes in part 40 apply to part 199. These changes will help the readers of part 199 find the applicable regulations in part 40 with regards to the definition of terms and record keeping requirements. We also propose to amend Sec. Sec. 199.119 and 199.229 by changing the reference of ``appendix H'' to ``appendix J'' to conform to the amendment of part 40 published on May 2, 2023. X. Section-by-Section Analysis Section 40.3 What do the terms used in this regulation mean? We propose to add a definition of ``electronic signature.'' The rule would define an electronic signature as a method of signing an electronic communication that identifies and authenticates a particular person as the source of the electronic communication and indicates such person's approval of the information contained in the electronic communication, in accordance with the Government Paperwork Elimination Act (Pub. L. 105-277, title XVII, secs. 1701-1710, 44 U.S.C. 3504 note, 112 Stat. 2681-749). Including the specific cross reference to GPEA would ensure that regulated entities know that we are using GPEA's performance standard for allowing use of electronic signatures. We propose to add a definition of ``written or in writing.'' The rule would define written or in writing as printed, handwritten, or typewritten either on paper or other tangible medium, or by any method of electronic documentation that meets the requirements of 49 CFR 40.4. This definition would eliminate any distinction between paper and electronic methods of communication/documentation. Section 40.4 May electronic documents and signatures be used? We propose to add a new Sec. 40.4 that would prescribe the requirements pertaining to electronic documents and signatures throughout part 40. Paragraph (a) would specify that Sec. 40.4 would apply to all documents required by part 40, except for the CCF, as an electronic CCF may only be used when approved by HHS and in compliance with Sec. 40.40(c)(5). As background, before an HHS-certified laboratory can use a Federal electronic CCF for regulated specimens, the test facility must submit a detailed plan and proposed standard operating procedures for the electronic CCF system for HHS review and approval through the National Laboratory Certification Program. At the current time, several HHS-certified laboratories have received approval to use a combination electronic/paper CCF, while four laboratories have received approval to use a fully electronic CCF. As noted earlier, and in a separate section of the SUPPORT Act, HHS was required to set a deadline for certified laboratories to request approval for use of fully electronic CCFs. That deadline is now August 31, 2026. Paragraph (b) would permit, but not require, any person or entity to use electronic methods to comply with any provision in part 40 that requires a document to be signed, certified, generated, maintained, or transmitted between parties. It would apply to all forms of written documentation, including forms, records, notations, and other documents. The substance of the document would otherwise have to comply with part 40 requirements. This would establish parity between paper and electronic documents and signatures, greatly expanding interested parties' ability to use electronic methods to comply with the requirements of part 40. Paragraph (c) would permit, but not require, any entity required to sign or certify a document to do so using electronic signatures as defined in Sec. 40.3. The rule specifies that a person may use any available technology so long as the signature otherwise complies with the requirements of part 40. Paragraph (d) would establish the minimum requirements for electronic documents and signatures. Any electronic document or signature would be considered the legal equivalent of a paper document or signature if it is the functional equivalent with respect to integrity, ac
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