Federal Register / Vol. 89, No. 199 / Tuesday, October 15, 2024 / Proposed Rules 82957 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

In addition, the SIP is not approved 

to apply on any Indian reservation land 

or in any other area where EPA or an 

Indian Tribe has demonstrated that a 

Tribe has jurisdiction. In those areas of 

Indian country, the proposed rule does 

not have Tribal implications and will 

not impose substantial direct costs on 

Tribal governments or preempt Tribal 

law as specified by Executive Order 

13175 (65 FR 67249, November 9, 2000). 

Executive Order 12898 (Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, 59 FR 7629, 

Feb. 16, 1994) directs Federal agencies 

to identify and address 

‘‘disproportionately high and adverse 

human health or environmental effects’’ 

of their actions on minority populations 

and low-income populations to the 

greatest extent practicable and 

permitted by law. EPA defines 

environmental justice (EJ) as ‘‘the fair 

treatment and meaningful involvement 

of all people regardless of race, color, 

national origin, or income with respect 

to the development, implementation, 

and enforcement of environmental laws, 

regulations, and policies.’’ EPA further 

defines the term fair treatment to mean 

that ‘‘no group of people should bear a 

disproportionate burden of 

environmental harms and risks, 

including those resulting from the 

negative environmental consequences of 

industrial, governmental, and 

commercial operations or programs and 

policies.’’ The Montana Department of 

Environmental Quality (MDEQ) did not 

evaluate EJ considerations as part of its 

SIP submittal; the CAA and applicable 

implementing regulations neither 

prohibit nor require such an evaluation. 

EPA did not perform an EJ analysis and 

did not consider EJ in this action. Due 

to the nature of the action being taken 

here, this action is expected to have 

neutral impacts on the air quality of the 

affected area. Consideration of EJ is not 

required as part of this action, and there 

is no information in the record 

inconsistent with the stated goal of E.O. 

12898 of achieving EJ for people of 

color, low-income populations, and 

Indigenous peoples. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Greenhouse gases, Incorporation by 

reference, Intergovernmental relations, 

Lead, Nitrogen dioxide, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: September 19, 2024. 

KC Becker, 

Regional Administrator, Region 8. 

[FR Doc. 2024–23589 Filed 10–11–24; 8:45 am] 

BILLING CODE 6560–50–P 

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 DOTregulated 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; ODAPCwebmail@dot.gov. 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 


khammond on DSKJM1Z7X2PROD with PROPOSALS
82958 Federal Register / Vol. 89, No. 199 / Tuesday, October 15, 2024 / Proposed Rules 

1 Division C, title XVII (sec. 1701–1710) of Public 

Law 105–277, 112 Stat. 2681–749, enacted on 

October 21, 1998. 

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 81⁄2 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-systemrecords-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. 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 89, No. 199 / Tuesday, October 15, 2024 / Proposed Rules 82959 

2Public Law 106–229, 114 Stat. 464, enacted on 

June 30, 2000. 

3 68 FR 43946 (July 25, 2003). 

4 80 FR 19551 (Apr. 13, 2015). 

5https://www.whitehouse.gov/wp-content/ 

uploads/2017/11/2000-M-00-15-OMB-Guidance-onImplementing-the-Electronic-Signatures-in-Globaland-National-Commerce-Act.pdf. 

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 paperbased 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)). 

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. 

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. 

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 DOTregulated 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 


khammond on DSKJM1Z7X2PROD with PROPOSALS
82960 Federal Register / Vol. 89, No. 199 / Tuesday, October 15, 2024 / Proposed Rules 

6As 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. 

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 FMCSAregulated 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 technologyspecific 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. 

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 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 89, No. 199 / Tuesday, October 15, 2024 / Proposed Rules 82961 

7The 2015 revisions amended then § 40.45(c)(5), 

which was redesignated as § 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). 

form. The same general requirements 

were added to the current § 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. 

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 

§ 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 § 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 DOTregulated 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, §§ 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 DOTmandated 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 DOTregulated 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 


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8The 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. 

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. 

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 

§§ 199.3, 199.117, and 199.227 and to 

add § 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 §§ 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 § 40.4 that 

would prescribe the requirements 

pertaining to electronic documents and 

signatures throughout part 40. 

Paragraph (a) would specify that 

§ 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 § 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 

§ 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, accuracy, and accessibility. In 

other words, the electronic documents 

or signatures need to accurately and 

reliably reflect the information in the 

record. They must remain accessible in 

a form that could be accurately viewed 

or reproduced according to Agency 

rules. As with any documents, paper or 

electronic, documents that are not 

legible—for any reason—do not satisfy 

the Department’s requirements. 

Electronic documents are not to be 

considered the legal equivalent of 

traditional paper documents if they (1) 

are not capable of being retained, (2) are 

not used for the purpose for which they 

were created, or (3) cannot be accurately 

reproduced for reference by any entity 

entitled to access by law, for the period 

of time required by the Department’s 

recordkeeping requirements. 

Paragraph (d) would also require that 

any electronically signed documents 

must incorporate or otherwise include 

evidence that both parties to the 

document have consented to the use of 

electronic signatures, as required by the 

E–SIGN Act (15 U.S.C. 7001(c)). 

Paragraph (e) would require that 

when using electronic documents and 

signatures, adequate confidentiality and 

security measures must be established 

to ensure that confidential employee 

records cannot be accessed by 

unauthorized persons. This includes 

protecting the physical security of 

records, access controls, and computer 

security measures to safeguard 

confidential data in electronic form. The 

proposed requirements are analogous to 

those established in the current 

§ 40.40(c)(5) when we approved use of 

the electronic CCF in part 40. 

Section 40.25 Must an employer check 

on the drug and alcohol testing record 

of employees it is intending to use to 

perform safety-sensitive duties? 

Currently, paragraph (g) makes it clear 

that the release of information under 

this section must be in any written form, 

and the parenthetical clarifies that this 

can be paper-based (written, fax) or 

electronic (email). Under the proposed 

definition of ‘‘written or in writing,’’ 

there is no distinction between paperbased and electronic communications. 


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Because ‘‘written or in writing’’ would 

mean either paper or electronic 

communications, we propose to remove 

parenthetical reference to ‘‘fax, email, 

letter’’ to eliminate redundancy and 

confusion. All parties can conduct their 

business using either paper or electronic 

means of documentation and 

communication. 

Section 40.79 How is the collection 

process completed? 

Currently, paragraph (a)(9) of this 

section requires the collector to ‘‘fax or 

otherwise transmit’’ Copy 2 of the CCF 

to the MRO and Copy 4 to the DER 

within 24 hours or during the next 

business day. We propose to amend this 

section by removing reference to the 

methods of transmitting receipts, so 

parties can choose their own medium of 

communication. 

Section 40.97 What do laboratories 

report and how do they report it? 

For the same reasons explained in the 

discussion of § 40.79, we propose to 

remove the references to the methods of 

transmitting Copy 1 of the CCF from the 

laboratory to the MRO in paragraphs 

(c)(1) and (2) of this section. 

Section 40.111 When and how must a 

laboratory disclose statistical 

summaries and other information it 

maintains? 

For the same reasons explained in the 

discussion of § 40.79, we propose to 

amend paragraph (b) of this section to 

remove the references to the methods of 

transmitting the summary or report 

required by this section. Because the 

summary or report can be transmitted 

via hard copy or electronically, there is 

no need to specify how it must be 

transmitted. As such, we propose to 

amend the title of this section 

accordingly. 

Section 40.127 What are the MRO’s 

functions in reviewing negative test 

results? 

For the same reasons explained in the 

discussion of § 40.25, we propose to 

delete the parenthetical references to 

‘‘fax, photocopy, image’’ for Copy 1 of 

the CCF in paragraph (c)(2) of this 

section. 

Section 40.129 What are the MRO’s 

functions in reviewing laboratory 

confirmed non-negative test results? 

For the same reasons explained in the 

discussion of § 40.25, we propose to 

delete the parenthetical references to 

‘‘fax, photocopy, image’’ for Copy 1 of 

the CCF in paragraph (b)(2) of this 

section. 

Section 40.163 How does the MRO 

report drug test results? 

For the same reasons explained in the 

discussion of § 40.25, we propose to 

remove the reference to a ‘‘letter’’ in 

paragraph (c) of this section. In 

paragraph (e) of this section, we propose 

to replace the term ‘‘letter’’ with 

‘‘written report’’ for consistency with 

paragraph (c). 

Section 40.167 How are MRO reports 

of drug results transmitted to the 

employer? 

For the same reasons explained in the 

discussion of § 40.25, we propose to 

delete the references to ‘‘fax, courier, 

mail, or electronically’’ in paragraph 

(c)(1) of this section. 

Section 40.185 Through what methods 

and to whom must a laboratory report 

split specimen results? 

For the same reasons explained in the 

discussion of § 40.25, we propose to 

delete the references to ‘‘fax, courier, 

mail, or electronically’’ in paragraph (b) 

of this section. In addition, because 

Copy 1 of the CCF can be transmitted in 

writing or electronically, there is no 

need to specify the methods through 

which it must be transmitted. As such, 

we propose to amend the title of this 

section accordingly. 

Section 40.187 What does the MRO do 

with split specimen laboratory results? 

For the same reasons explained in the 

discussion of § 40.79, we propose to 

remove the references to the methods of 

transmitting Copy 1 of the CCF from the 

laboratory to the MRO in paragraph 

(c)(2)(iv)(C) of this section. 

Section 40.191 What is a refusal to 

take a DOT drug test, and what are the 

consequences? 

For the same reasons explained in the 

discussion of § 40.25, we propose to 

delete the parenthetical references to 

‘‘telephone or secure fax machine’’ in 

paragraph (d) of this section as means of 

transmitting notification that an 

employee has refused to participate in 

part of the testing process from the 

collector or MRO to the DER. 

Section 40.193 What happens when an 

employee does not provide a sufficient 

amount of urine for a drug test? 

For the same reasons explained in the 

discussion of § 40.25, we propose to 

delete the references to ‘‘send or fax’’ as 

the means for the collector to transmit 

copies of the CCF to the MRO and the 

DER in paragraph (b)(3) of this section. 

Section 40.205 How are drug test 

problems corrected? 

For the same reasons explained in the 

discussion of § 40.25, we propose to 

delete the references to ‘‘by fax or 

courier’’ as the means for a collector, 

laboratory, MRO, employer, or other 

person to supply signed statements 

regarding correctable problems in a drug 

test in paragraphs (b)(1) and (2) of this 

section. 

Section 40.225 What form is used for 

an alcohol test? 

We propose to amend this section to 

permit, but not require, the use of an 

electronic version of the DOT ATF that 

is identical in form and content to the 

form provided in appendix I to part 40. 

The electronic ATF must be capable of 

capturing the electronic signatures of 

the employee and the BAT and/or STT, 

and if an EBT provides a separate 

printout of confirmation test results 

pursuant to § 40.253(g), the electronic 

ATF must include that separate 

printout. This section would also be 

amended to specify the same general 

confidentiality and security measures in 

§ 40.45 relating to electronic CCFs to 

ensure that confidential employee 

records cannot be accessed by 

unauthorized persons. 

Section 40.255 What happens next 

after the alcohol confirmation test 

result? 

For the same reasons explained in the 

discussion of § 40.25, we propose to 

delete the parenthetical references to 

‘‘telephone or secure fax machine’’ in 

paragraph (a)(5)(i) of this section as 

means of transmitting results of the 

alcohol confirmation test from the BAT 

to the DER. Similarly, there is no need 

to specify that Copy 1 of the ATF may 

be transmitted ‘‘in person, by telephone, 

or by electronic means.’’ 

Section 40.261 What is a refusal to 

take an alcohol test, and what are the 

consequences? 

For the same reasons explained in the 

discussion of § 40.25, we propose to 

delete the parenthetical references to 

‘‘telephone or secure fax machine’’ in 

paragraph (c) of this section as means of 

transmitting a refusal notification from 

a BAT, STT, or referral physician to the 

DER. 

Section 40.271 How are alcohol testing 

problems corrected? 

For the same reasons explained in the 

discussion of § 40.25, we propose to 

delete the references to ‘‘by fax or 

courier’’ as the means for a STT, BAT, 

employer, or other service agent to 

supply a signed statement regarding 


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correctable flaws in an alcohol test in 

paragraph (b)(2) of this section. 

Section 40.365 What is the 

Department’s policy concerning starting 

a PIE proceeding? 

We propose to amend this section by 

adding a new paragraph (b)(15) that 

would identify the failure of a service 

agent to provide or maintain a secure/ 

confidential electronic system as 

appropriate grounds for starting a PIE 

proceeding. 

X. Regulatory Analyses and Notices 

Executive Orders 12866, 13563, and 

14094 (Regulatory Planning and Review) 

The Secretary has examined the 

impact of the proposed part 40 

amendments under Executive Order 

12866 (‘‘Regulatory Planning and 

Review’’), as supplemented by 

Executive Order 13563 (‘‘Improving 

Regulation and Regulatory Review’’) 

and amended by Executive Order 14094 

(‘‘Modernizing Regulatory Review’’), 

which directs Federal agencies to assess 

all costs and benefits of available 

regulatory alternatives and, when 

regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety, and other advantages; 

distributive impacts; and equity). 

According to these Executive orders, 

a regulatory action is ‘‘significant’’ if it 

meets any one of a number of specified 

conditions, including having an annual 

effect on the economy of $200 million 

or more, as adjusted every three years by 

the Office of Information and Regulatory 

Affairs (OIRA); adversely affecting in a 

material way a sector of the economy, 

competition, or jobs; or if it raises novel 

legal or policy issues. The proposed 

amendments, which would allow the 

use of electronic documents and 

signatures, do not meet the Executive 

order’s criteria for being a significant 

rule. Consequently, OMB has 

determined that the rulemaking action 

is not significant under the Executive 

order. 

The proposed rule responds to the 

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. The proposed 

rule would not impose new 

requirements on the industry; rather, it 

would simply permit—but not require— 

regulated entities to use electronic 

signatures, forms, and recordkeeping, 

and remove outdated and obsolete 

references in the regulatory text. The 

proposed rule would not impose new 

costs on the industry because regulated 

entities would be allowed to choose to 

continue to use paper-based documents 

as they had before. The benefits of the 

rule would stem from savings in paper 

and printing expense and other 

efficiency gains. Examples of documents 

affected by this rule include, but are not 

limited to, records of a prospective 

employee’s drug and alcohol testing 

history that employers must obtain prior 

to permitting that employee to perform 

safety-sensitive duties, MRO records 

and reports, SAP records and reports, 

and ATFs. While there is no way to 

estimate how many entities or 

individuals would change their 

practices given the new options, or how 

many documents would be affected, 

several commenters to the ANPRM 

stated that they have been using 

electronic documents and signatures in 

their non-DOT drug and alcohol testing 

programs for many years. While neither 

the benefits nor the costs of this rule can 

be reliably estimated, we expect this 

proposed rule to provide flexibility to 

the industry. Under this proposed rule, 

regulated entities would have the 

flexibility to conduct business using 

either electronic or traditional paperbased methods. We also expect 

regulated entities to choose technologies 

that would maximize benefits in 

accordance with their individual needs 

and circumstances. 

Regulatory Flexibility Act and Small 

Business Regulatory Enforcement 

Fairness Act (SBREFA) 

The Regulatory Flexibility Act of 1980 

(5 U.S.C. 601 et seq.) requires Federal 

agencies to consider the effects of their 

regulatory actions on small businesses 

and other small entities and minimize 

any significant economic impact. The 

term ‘‘small entities’’ comprises small 

businesses and not-for-profit 

organizations that are independently 

owned and operated and are not 

dominant in their fields, and 

governmental jurisdictions with a 

population of less than 50,000. For this 

rulemaking, potentially affected small 

entities include drug testing companies 

(U.S. Small Business Administration 

(SBA) North American Industry 

Classification System (NAICS) Sector 54 

(Professional, Scientific and Technical 

Services), Code 541380 (Testing 

Laboratories and Services)) as well as 

DOT-regulated entities (SBA NAICS 

Sectors 48–49 (Transportation and 

Warehousing)). 

The Department does not expect that 

the proposed rule would have a 

significant economic impact on a 

substantial number of small entities. 

The proposed rule, if adopted, would 

increase flexibility for all small-entity 

transportation employers and their 

service agents by allowing them to use 

electronic documents, signatures, and 

recordkeeping to meet part 40 

requirements. Use of electronic 

documents, electronic signatures, and 

electronic recordkeeping would be 

voluntary for affected small entities, 

which will provide added flexibility to 

these entities in meeting the part 40 

requirements. For these reasons, and as 

explained in more detail in the 

preamble to this proposed rule, the 

Secretary certifies that the proposed rule 

would not have a significant economic 

impact on a substantial number of small 

entities within the meaning of the 

Regulatory Flexibility Act. 

Consequently, an initial regulatory 

flexibility analysis is not required for 

this proposed rule. 

Unfunded Mandates 

The Secretary has examined the 

impact of the final rule under the 

Unfunded Mandates Reform Act 

(UMRA) of 1995 (Pub. L. 104–4). This 

NPRM does not trigger the requirement 

for a written statement under sec. 202(a) 

of the UMRA because this rulemaking 

does not impose a mandate that results 

in an expenditure of $100 million 

(adjusted annually for inflation) or more 

by either State, local, and tribal 

governments in the aggregate or by the 

private sector in any one year. In fact, 

by providing an alternative to 

traditional paper-based records, the 

proposed rule would be expected to 

reduce costs to regulated parties, 

including State and local entities (e.g., 

public transit authorities, and public 

works departments) whose employees 

are subject to testing and that choose to 

use electronic documents as opposed to 

paper-based documents. 

Environmental Impact 

The DOT has analyzed the 

environmental impacts of this 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, October 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). This proposed 

rule would amend the transportation 

industry drug testing program 

procedures regulation to permit the use 


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of electronic documents, signatures, and 

recordkeeping. This action is covered by 

the categorical exclusion listed at 23 

CFR 771.118(c)(4), ‘‘[p]lanning and 

administrative activities that do not 

involve or lead directly to construction, 

such as: . . . promulgation of rules, 

regulations, directives . . .’’ The 

Department does not anticipate any 

environmental impacts, and there are no 

extraordinary circumstances present in 

connection with this rulemaking. 

Executive Order 13132: Federalism 

The Secretary has analyzed the final 

rule in accordance with Executive Order 

13132: Federalism. Executive Order 

13132 requires Federal agencies to 

carefully examine actions to determine 

if they contain policies that have 

federalism implications or that preempt 

State law. As defined in the order, 

‘‘policies that have federalism 

implications’’ refer to regulations, 

legislative comments or proposed 

legislation, and other policy statements 

or actions that have substantial direct 

effects on the States, on the relationship 

between the National Government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. 

Most of the regulated parties under 

the Department’s drug testing program 

are private entities. Some regulated 

entities are public entities (e.g., transit 

authorities and public works 

departments); however, as noted above, 

this proposal would reduce costs of the 

Department’s drug testing program and 

provide additional flexibility for 

regulated parties. Accordingly, the 

Secretary has determined that the 

proposed rule, which would allow but 

not require use of electronic signatures 

and recordkeeping, does not contain 

policies that have federalism 

implications. 

Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175 (65 FR 67249, 

November 6, 2000) requires Federal 

agencies to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by tribal officials in the 

development of regulatory policies that 

have tribal implications.’’ ‘‘Policies that 

have tribal implications’’ as defined in 

the Executive order, include regulations 

that have ‘‘substantial direct effects on 

one or more Indian tribes, on the 

relationship between the Federal 

government and the Indian tribes, or on 

the distribution of power and 

responsibilities between the Federal 

government and Indian tribes.’’ This 

proposed rule does not have tribal 

implications. The proposed rule will 

also not have substantial direct effects 

on tribal governments, on the 

relationship between the Federal 

Government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

Government and Indian tribes, as 

specified in Executive Order 13175. 

Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(44 U.S.C. 3501–3520) (PRA) requires 

that DOT consider the impact of 

paperwork and other information 

collection burdens imposed on the 

public. This proposed rule would call 

for no new collection of information 

under the PRA. Instead, there would 

likely be a significant reduction in the 

burden hours required for information 

collection 2105–0529, Procedures for 

Transportation Drug and Alcohol 

Testing Program, due to the ability to 

use electronic signatures and forms, and 

largely due to the ability to use an 

electronic ATF for DOT-regulated 

alcohol testing under part 40. We 

request comments on this issue. 

Notwithstanding any other provision of 

law, no person shall be subject to any 

penalty for failing to comply with a 

collection of information subject to the 

PRA that does not display a currently 

valid OMB control number. 

Privacy Act 

Anyone is able to search the 

electronic form of all comments 

received in any of our dockets by the 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.) For 

information on DOT’s compliance with 

the Privacy Act, please visit https://

www.transportation.gov/privacy. 

5 U.S.C. 553(b)(4) 

As required by 5 U.S.C. 553(b)(4), a 

summary of this proposed rule can be 

found at the entry for RIN 2105–AF01 

in the Department’s Portion of the 

Unified Agenda of Regulatory and 

Deregulatory Affairs, available at 

https://www.reginfo.gov/public/do/ 

eAgendaViewRule?pubId

=202404&RIN=2105-AF01. 

Pay-As-You-Go Act of 2023 

In accordance with Compliance with 

Pay-As-You-Go Act of 2023 (Fiscal 

Responsibility Act of 2023, Pub. L. 118– 

5, div. B, title III) and OMB 

Memorandum (M–23–21) dated 

September 1, 2023, the Department has 

determined that this proposed rule is 

not subject to the Pay-As-You-Go Act of 

2023 because it will not increase direct 

spending beyond specified thresholds. 

List of Subjects 

49 CFR Part 40 

Administrative practice and 

procedures, Alcohol abuse, Alcohol 

testing, Drug abuse, Drug testing, 

Laboratories, Reporting and 

recordkeeping requirements, Safety, 

Transportation. 

49 CFR Part 199 

Alcohol testing, Drug testing, Pipeline 

safety, Reporting and recordkeeping 

requirements, Safety, Transportation. 

For the reasons stated in the 

preamble, the Department proposes to 

amend 49 CFR parts 40 and 199 as 

follows: 

PART 40—PROCEDURES FOR 

TRANSPORTATION WORKPLACE 

DRUG AND ALCOHOL TESTING 

PROGRAMS 

■ 1. The authority for part 40 continues 

to read as follows: 

Authority: 49 U.S.C. 102, 301, 322, 5331, 

20140, 31306, and 54101 et seq. 

■ 2. In § 40.3, add the definitions of 

‘‘Electronic signature’’ and ‘‘Written or 

in writing’’ in alphabetical order to read 

as follows: 

§ 40.3 What do the terms used in this part 

mean? 

* * * * * 

Electronic signature. 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, 112 Stat. 2681–749, 44 U.S.C. 

3504 note). 

* * * * * 

Written or in writing. Printed, 

handwritten, or typewritten either on 

paper or other tangible medium, or by 

any method of electronic documentation 

that meets the requirements of § 40.4. 

■ 3. Add § 40.4 to read as follows: 

§ 40.4 May electronic documents and 

signatures be used? 

(a) Applicability. This section applies 

to all documents required by this part, 

except for the CCF. An electronic CCF 

may be used only if it has been 

approved for use by the Department of 

Health and Human Services and is used 

in compliance with § 40.40(c)(5). 

(b) Electronic records or documents. 

Any person or entity required to 


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generate, maintain, or exchange and/or 

transmit documents to satisfy 

requirements in this part may use 

electronic methods to satisfy those 

requirements. 

(c) Electronic signatures. (1) Any 

person or entity required to sign or 

certify a document to satisfy the 

requirements of this part may use an 

electronic signature, as defined in 

§ 40.3. 

(2) Any available technology may be 

used that satisfies the requirements of 

an electronic signature as defined in 

§ 40.3. 

(d) Electronic document requirements. 

Any person or entity may use 

documents signed, certified, generated, 

maintained, or exchanged using 

electronic methods, as long as the 

documents accurately reflect the 

information otherwise required to be 

contained in them. 

(1) Records, documents, or signatures 

generated, maintained, or exchanged 

using electronic methods satisfy the 

requirements of this section if they are 

capable of being retained, are used for 

the purpose for which they were 

created, and can be accurately 

reproduced within required timeframes 

for reference by any party entitled to 

access. 

(2) Records or documents generated 

electronically satisfy the requirements 

of this section if they include proof of 

consent to use electronically generated 

records or documents, as required by 15 

U.S.C. 7001(c). 

(e) Confidentiality and security. When 

using electronic documents and 

signatures, adequate confidentiality and 

security measures must be established 

to ensure that confidential employee 

records are not available to 

unauthorized persons. This includes 

protecting the physical security of 

records, access controls, and computer 

security measures to safeguard 

confidential data in electronic form to 

include protecting against destruction, 

deterioration, and data corruption. 

■ 4. In § 40.25, revise paragraph (g) to 

read as follows: 

§ 40.25 Must an employer check on the 

drug and alcohol testing record of 

employees it is intending to use to perform 

safety-sensitive duties? 

* * * * * 

(g) The release of information under 

this section must be in any written form 

that ensures confidentiality. As the 

previous employer, you must maintain 

a written record of the information 

released, including the date, the party to 

whom it was released, and a summary 

of the information provided. 

* * * * * 

■ 5. In § 40.79, revise paragraph (a)(9) to 

read as follows: 

§ 40.79 How is the collection process 

completed? 

(a) * * * 

(9) Send Copy 2 of the CCF to the 

MRO and Copy 4 to the DER. You must 

transmit these copies to the MRO and 

DER within 24 hours or during the next 

business day. Keep Copy 3 for at least 

30 days, unless otherwise specified by 

applicable DOT agency regulations. 

* * * * * 

■ 6. In § 40.97, revise paragraphs (c) 

introductory text, (c)(1) introductory 

text, and (c)(2) to read as follows: 

§ 40. 97 What do laboratories report and 

how do they report it? 

* * * * * 

(c) As a laboratory, you must report 

laboratory results directly, and only, to 

the MRO at his or her place of business. 

You must not report results to or 

through the DER or a service agent (e.g., 

C/TPA). 

(1) Negative results. You must 

transmit a legible image or copy of the 

fully-completed Copy 1 of the CCF 

which has been signed by the certifying 

scientist, or you may provide the 

laboratory results report electronically. 

* * * * * 

(2) Non-negative and rejected for 

testing results. You must transmit a 

legible image or copy of the fullycompleted Copy 1 of the CCF that has 

been signed by the certifying scientist. 

In addition, you may provide the 

laboratory results report following the 

format and procedures set forth in 

paragraphs (c)(1)(i) and (ii) of this 

section. 

* * * * * 

■ 7. In § 40.111, revise the section 

heading and paragraph (b) to read as 

follows: 

§ 40.111 When must a laboratory disclose 

statistical summaries and other information 

it maintains? 

* * * * * 

(b) When the employer requests a 

summary in response to an inspection, 

audit, or review by a DOT agency, you 

must provide it unless the employer had 

fewer than five aggregate test results. In 

that case, you must send the employer 

a report indicating that not enough 

testing was conducted to warrant a 

summary. 

* * * * * 

■ 8. In § 40.127, revise paragraph (c)(2) 

to read as follows: 

§ 40.127 What are the MRO’s functions in 

reviewing negative test results? 

* * * * * 

(c) * * * 

(2) A legible copy of Copy 1 of the 

CCF or the electronic laboratory results 

report that conveys the negative 

laboratory test result. 

* * * * * 

■ 9. In § 40.129, revise paragraphs (b) 

introductory text and (b)(2) to read as 

follows: 

§ 40.129 What are the MRO’s functions in 

reviewing laboratory confirmed nonnegative drug test results? 

* * * * * 

(b) Before you report a verified 

negative, positive, test cancelled, refusal 

to test because of adulteration or 

substitution, you must have in your 

possession the following documents: 

* * * * * 

(2) A legible copy of Copy 1 of the 

CCF, containing the certifying scientist’s 

signature. 

* * * * * 

■ 10. In § 40.163, revise paragraphs (c) 

introductory text and (e) to read as 

follows: 

§ 40.163 How does the MRO report drug 

test results? 

* * * * * 

(c) If you do not report test results 

using Copy 2 of the CCF for the 

purposes of this section, you must 

provide a written report for each test 

result. This report must, as a minimum, 

include the following information: 

* * * * * 

(e) You must retain a signed or 

stamped and dated copy of Copy 2 of 

the CCF in your records. If you do not 

use Copy 2 for reporting results, you 

must maintain a copy of the signed or 

stamped and dated written report in 

addition to the signed or stamped and 

dated Copy 2. If you use the electronic 

data file to report negatives, you must 

maintain a retrievable copy of that 

report in a format suitable for inspection 

and auditing by a DOT representative. 

* * * * * 

■ 11. In § 40.167, revise paragraph (c)(1) 

to read as follows: 

§ 40.167 How are MRO reports of drug test 

results transmitted to the employer? 

* * * * * 

(c) * * * 

(1) You must transmit a legible image 

or copy of either the signed or stamped 

and dated Copy 2 or the written report 

(see § 40.163(b) and (c)). 

* * * * * 

■ 12. In § 40.185, revise the section 

heading and paragraph (b) to read as 

follows: 


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§ 40.185 What and to whom must a 

laboratory report split specimen results? 

* * * * * 

(b) You must transmit a legible image 

or copy of the fully-completed Copy 1 

of the CCF, which has been signed by 

the certifying scientist. 

* * * * * 

■ 13. In § 40.187, revise paragraph 

(c)(2)(iv)(C) to read as follows: 

§ 40.187 What does the MRO do with split 

specimen laboratory results? 

* * * * * 

(c) * * * 

(2) * * * 

(iv) * * * 

(C) As the laboratory that tests the 

primary specimen to reconfirm the 

presence of the adulterant found in the 

split specimen and/or to determine that 

the primary specimen meets appropriate 

substitution criteria, report your result 

to the MRO using a copy of Copy 1 of 

the CCF. 

* * * * * 

■ 14. In § 40.191, revise paragraph (d) 

introductory text to read as follows: 

§ 40.191 What is a refusal to take a DOT 

drug test, and what are the consequences? 

* * * * * 

(d) As a collector or an MRO, when 

an employee refuses to participate in the 

part of the testing process in which you 

are involved, you must terminate the 

portion of the testing process in which 

you are involved, document the refusal 

on the CCF (including, in the case of the 

collector, printing the employee’s name 

on Copy 2 of the CCF), immediately 

notify the DER by any means that 

ensures that the refusal notification is 

immediately received. As a referral 

physician (e.g., physician evaluating a 

‘‘shy bladder’’ condition or a claim of a 

legitimate medical explanation in a 

validity testing situation), you must 

notify the MRO, who in turn will notify 

the DER. 

* * * * * 

■ 15. In § 40.193, revise paragraph (b)(3) 

to read as follows: 

§ 40.193 What happens when an employee 

does not provide a sufficient amount of 

specimen for a drug test? 

* * * * * 

(b) * * * 

(3) As the collector, you must send 

Copy 2 of the CCF to the MRO and Copy 

4 to the DER. You must transmit these 

copies to the MRO and DER within 24 

hours or the next business day. 

* * * * * 

■ 16. In § 40.205, revise paragraphs 

(b)(1) and (2) to read as follows: 

§ 40.205 How are drug test problems 

corrected? 

* * * * * 

(b) * * * 

(1) If the problem resulted from the 

omission of required information, you 

must, as the person responsible for 

providing that information, supply in 

writing the missing information and a 

statement that it is true and accurate. 

For example, suppose you are a 

collector, and you forgot to make a 

notation on the ‘‘Remarks’’ line of the 

CCF that the employee did not sign the 

certification. You would, when the 

problem is called to your attention, 

supply a signed statement that the 

employee failed or refused to sign the 

certification and that your statement is 

true and accurate. You must supply this 

information on the same business day 

on which you are notified of the 

problem. 

(2) If the problem is the use of a nonFederal form or an expired Federal 

form, you must provide a signed 

statement (i.e., a memorandum for the 

record). It must state that the incorrect 

form contains all the information 

needed for a valid DOT drug test, and 

that the incorrect form was used 

inadvertently or as the only means of 

conducting a test, in circumstances 

beyond your control. The statement 

must also list the steps you have taken 

to prevent future use of non-Federal 

forms or expired Federal forms for DOT 

tests. For this flaw to be corrected, the 

test of the specimen must have occurred 

at an HHS-certified laboratory where it 

was tested consistent with the 

requirements of this part. You must 

supply this information on the same 

business day on which you are notified 

of the problem. 

* * * * * 

■ 17. In § 40.225, revise paragraph (a) 

and add paragraphs (d) and (e) to read 

as follows: 

§ 40.225 What form is used for an alcohol 

test? 

(a) The DOT Alcohol Testing Form 

(ATF) must be used for every DOT 

alcohol test. The ATF must be a threepart carbonless manifold form or an 

electronic ATF that meets the 

requirements of paragraph (d) of this 

section. The ATF is found in appendix 

G to this part. You may view this form 

on the ODAPC website (https://

www.transportation.gov/odapc). 

* * * * * 

(d) As an employer, you may use an 

electronic ATF that meets the following 

requirements: 

(1) The electronic ATF must be 

identical in form and content to the ATF 

found in appendix G to this part. 

(2) The electronic ATF must meet the 

requirements of § 40.4(d). 

(3) The electronic ATF must be 

capable of capturing the electronic 

signatures of the employee and the BAT 

and/or STT. 

(4) If an EBT provides a separate 

printout of confirmation test results (see 

§ 40.253(g)), the electronic ATF must 

include that separate printout. 

(e) As an employer, BAT, or STT 

using an electronic ATF, you must 

establish adequate confidentiality and 

security measures to ensure that 

confidential employee records are not 

available to unauthorized persons. This 

includes protecting the physical 

security of records, access controls, and 

computer security measures to 

safeguard confidential data in electronic 

form. 

■ 18. In § 40.255, revise paragraph 

(a)(5)(i) to read as follows: 

§ 40.255 What happens next after the 

alcohol confirmation test result? 

(a) * * * 

(5) * * * 

(i) You may transmit the results using 

Copy 1 of the ATF, in person, by 

telephone, or by electronic means. In 

any case, you must immediately notify 

the DER of any result of 0.02 or greater 

by any means that ensures the result is 

immediately received by the DER. You 

must not transmit these results through 

C/TPAs or other service agents. 

* * * * * 

■ 19. In § 40.261, revise paragraph (c)(1) 

to read as follows: 

§ 40.261 What is a refusal to take an 

alcohol test, and what are the 

consequences? 

* * * * * 

(c)(1) As a BAT or an STT, or as the 

physician evaluating a ‘‘shy lung’’ 

situation, when an employee refuses to 

test as provided in paragraph (a) of this 

section, you must terminate the portion 

of the testing process in which you are 

involved, document the refusal on the 

ATF (or in a separate document which 

you cause to be attached to the form), 

immediately notify the DER by any 

means that ensures the refusal 

notification is immediately received. 

You must make this notification directly 

to the DER (not using a C/TPA as an 

intermediary). 

* * * * * 

■ 20. In § 40.271, revise paragraph (b)(2) 

to read as follows: 

§ 40.271 How are alcohol testing problems 

corrected? 

* * * * * 

(b) * * * 

(2) If the problem is the use of a nonDOT form, you must, as the person 


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responsible for the use of the incorrect 

form, certify in writing that the incorrect 

form contains all the information 

needed for a valid DOT alcohol test. 

You must also provide a signed 

statement that the incorrect form was 

used inadvertently or as the only means 

of conducting a test, in circumstances 

beyond your control, and the steps you 

have taken to prevent future use of nonDOT forms for DOT tests. You must 

supply this information on the same 

business day on which you are notified 

of the problem. 

* * * * * 

■ 21. In § 40.365, revise paragraphs 

(b)(13) and (14) and add paragraph 

(b)(15) to read as follows: 

§ 40.365 What is the Department’s policy 

concerning starting a PIE proceeding? 

* * * * * 

(b) * * * 

(13) For any service agent, directing or 

recommending that an employer fail or 

refuse to implement any provision of 

this part; 

(14) With respect to noncompliance 

with a DOT agency regulation, conduct 

that affects important provisions of 

Department-wide concern (e.g., failure 

to properly conduct the selection 

process for random testing); or 

(15) For a service agent, failing to 

provide or maintain a secure/ 

confidential electronic system. 

PART 199—DRUG AND ALCOHOL 

TESTING 

■ 22. The authority citation for part 199 

continues to read as follows: 

Authority: 49 U.S.C. 5103, 60102, 60104, 

60108, 60117, and 60118; 49 CFR 1.53. 

■ 23. In § 199.3: 

■ a. Designate the introductory text as 

paragraph (b); and 

■ b. Add paragraph (a). 

The addition reads as follows: 

§ 199.3 Definitions. 

(a) Terms used in this part have the 

same meaning as in 49 CFR 40.3. 

* * * * * 

■ 24. Add § 199.4 to read as follows: 

§ 199.4 Electronic documents, records, 

and signatures. 

Electronic documents, records, and 

signatures may be used to comply with 

this part provided they meet the 

requirements specified in 49 CFR part 

40. 

■ 25. In § 199.117, revise paragraph (a) 

introductory text to read as follows: 

§ 199.117 Recordkeeping. 

(a) Each operator shall keep the 

records in paragraphs (a)(1) through (5) 

of this section for the periods specified 

by this section or for the periods 

specified by 49 CFR part 40, whichever 

is greater; and will permit access to the 

records as provided by § 190.203. 

* * * * * 

■ 26. In § 199.119, revise paragraph (a) 

to read as follows: 

§ 199.119 Reporting of anti-drug testing 

results. 

(a) Each large operator (having more 

than 50 covered employees) must 

submit an annual Management 

Information System (MIS) report to 

PHMSA of its anti-drug testing using the 

MIS form and instructions as required 

by 49 CFR part 40 (at § 40.26 and 

appendix J to part 40), not later than 

March 15 of each year for the prior 

calendar year (January 1 through 

December 31). The Administrator may 

require by notice in the PHMSA Portal 

(https://portal.phmsa.dot.gov/phmsa

portallanding) that small operators (50 

or fewer covered employees), not 

otherwise required to submit annual 

MIS reports, to prepare and submit such 

reports to PHMSA. 

* * * * * 

■ 27. In § 199.227, revise paragraph (b) 

introductory text to read as follows: 

§ 199.227 Retention of records. 

* * * * * 

(b) Period of retention. Each operator 

shall maintain the records in accordance 

with the following schedule or for the 

periods specified by 49 CFR part 40, 

whichever is greater: 

* * * * * 

■ 28. In § 199.229, revise paragraph (a) 

to read as follows: 

§ 199.229 Reporting of alcohol testing 

results. 

(a) Each large operator (having more 

than 50 covered employees) must 

submit an annual MIS report to PHMSA 

of its alcohol testing results using the 

MIS form and instructions as required 

by 49 CFR part 40 (at § 40.26 and 

appendix J to part 40), not later than 

March 15 of each year for the prior 

calendar year (January 1 through 

December 31). The Administrator may 

require by notice in the PHMSA Portal 

(https://portal.phmsa.dot.gov/phmsa

portallanding) that small operators (50 

or fewer covered employees), not 

otherwise required to submit annual 

MIS reports, to prepare and submit such 

reports to PHMSA. 

* * * * * 

Signed on: Thursday, October 3, 2024. 

Pete Buttigieg, 

Secretary of Transportation. 

[FR Doc. 2024–23427 Filed 10–11–24; 8:45 am] 

BILLING CODE 4910–9X–P 


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