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USDOT contemplates electronic recordkeeping for drug & alcohol documents

The United States Department of Transportation (USDOT) is seeking comments on how its regulations for conducting workplace drug and alcohol testing for federally-regulated transportation companies should be amended to allow the use of electronic signatures and the electronic storage of forms and data.

In an Advanced Notice of Proposed Rulemaking (ANPRM) published on August 5, 2022, the USDOT said "the use of electronic forms and signatures . . . will help DOT- regulated employers and their service agents improve their workflow efficiency through faster turnaround times for required documents." It also proffered possible mitigation of "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" as a rationale for the rule change.

This rulemaking comes a few years after the Federal Motor Carrier Safety Administration (FMCSA)--a division of the USDOT--published its own electronic recordkeeping rule permitting regulated motor carriers to generate and store most categories of regulated documents electronically. The FMCSA took care to explain in its 2018 rulemaking that "the DOT Office of Drug and Alcohol Policy and Compliance (ODAPC) has not approved the use of electronic signatures or documents to satisfy the requirements of the DOT-wide drug and alcohol testing regulations, which are found at 49 CFR part 40." As a result, motor carriers--like other modal companies--have had to store drug/alcohol-related documents in paper form, causing significant inefficiencies.

As justification for its ANPRM, the USDOT further explained "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 sought ways to reduce the paper documentation associated with the drug and alcohol testing program without compromising the integrity and confidentiality requirements of the program." In addition, the U.S. Congress has recently directed the USDOT to move ahead with rulemaking that would "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.

The USDOT envisions rulemaking that would allow but not necessarily require regulated employers to use electronic means for drug/alcohol-related signatures, records, and record retention. The purpose of the ANPRM is to gather public comments from 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." Specifically, the USDOT is asking the public to weigh in on the following questions:

  1. What are the practical impacts of authorizing a fully or partially electronic system?

  2. What are the economic impacts of authorizing a fully or partially electronic system?

  3. How would confidentiality and system security be maintained to prevent against data breach and data loss?

  4. How many levels of authentication should be utilized to ensure the reliability and security of the signatures of program participants?

  5. How is the non-repudiation of a system ensured?

  6. Are there any lessons learned or shared best practices available related to paperless non-DOT regulated testing?

  7. Are there any limitations in either a paperless or electronic environment that impact program efficiency?

  8. Would moving to a paperless system involve the creation of more labels and bar codes and use of additional packaging, etc., not required in a paper-based system. If so, are there any cost and/or efficiency impacts as a result?

  9. What additional definitions would need to be added to part 40 to accommodate any electronic capabilities or a fully electronic system?

  10. What measures need to be established to ensure that, when documents are transmitted to multiple parties, each party is able to properly access and use the electronic system?

  11. Part 40 requires urine collectors and breath alcohol technicians (BAT) to prepare a memorandum for the record (MFR) when certain problems are encountered during the conduct of a drug or alcohol test under part 40. How would the MFR be created and transmitted to MROs, laboratories, and employers electronically?

  12. Part 40 requires communication between MROs and the employee’s physician regarding shy bladder situations, certain safety concerns, and opioids evaluations. Could these communications be handled electronically? If so, how?

  13. Should third parties (i.e., IT and security consultants, data management firms, etc.) play a role in maintaining electronic systems and transmitting data for employers? If so, to what degree?

  14. If records are kept electronically, and the business relationship ends, how would employers ensure that they have access to their electronic records if switching recordkeeping services, or if the service agent maintaining their electronic records goes out of business? Relatedly, how can employers ensure that records are not deleted, potentially leaving the DOT program participant without the records they are required to maintain under part 40?

Comments will be accepted through October 4, 2022 and can be submitted online at in docket number DOT-OST-2022-0027.

If you have questions about how this rulemaking may impact your operations, or if you need assistance preparing comments, please contact us.

About Trucksafe Consulting, LLC: Trucksafe Consulting is a full-service DOT regulatory compliance consulting and training service. We help carriers develop, implement, and improve their safety programs, through personalized services, industry-leading training, and a library of educational content. Trucksafe also hosts a monthly live show on its various social media channels called Trucksafe LIVE! to discuss hot-button issues impacting highway transportation. Trucksafe is owned and operated by Brandon Wiseman and Jerad Childress, transportation attorneys who have assisted some of the nation’s leading fleets to develop and maintain cutting-edge safety programs. You can learn more about Trucksafe online at and by following Trucksafe on LinkedIn, Facebook, Twitter, and YouTube.



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