Safety Performance History of New Drivers

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 390 and 391

[Docket No. FMCSA-97-2277]

RIN 2126-AA17

Safety Performance History of New Drivers

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Final rule.

SUMMARY:

The Federal Motor Carrier Safety Administration amends the Federal Motor Carrier Safety Regulations (FMCSRs) to specify: The minimum driver safety performance history data that new or prospective employers are required to seek for applicants under consideration for employment as a commercial motor vehicle (CMV) driver; where, and from whom, that information must be sought; and that previous employers must provide the minimum driver safety performance history information. This action will enable prospective motor carrier employers to make more sound hiring decisions of drivers to improve CMV safety on our nation's highways.

EFFECTIVE DATE:

April 29, 2004.

FOR FURTHER INFORMATION CONTACT:

Mr. David Goettee, (202) 366-4097, Office of Policy, Plans and Regulation, FMCSA, 400 Seventh Street, SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Outline

Background

Summary of the NPRM

Summary of the SNPRM

Discussion of Comments to the SNPRM

General Support and Opposition

Timetable To Obtain Safety Performance History for New Drivers

Prospective Employer Responsibilities

Previous Employer Responsibilities

Applicants—Driver Rights

Access to Data

Rejection Rate and Cost/Benefits

Fees

Miscellaneous

Rulemaking Analyses and Notices

Regulatory Evaluation: Summary of Benefits and Costs

Background

Current § 391.23 of Title 49 of the Code of Federal Regulations (CFR), “Investigations and Inquiries,” sets forth each motor carrier's responsibilities to inquire into the driving record and investigate the employment history of each prospective new driver. The investigations are to obtain the driver's employment history from the driver's previous employers

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during the preceding three years. The inquiries are to obtain the driver's driving records from each State in which the driver held a motor vehicle operator's license or permit during the preceding three years.

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As noted below, FMCSA's definition for the term “previous employer” includes a current employer of the driver applicant.

These investigations and inquiries must be completed within 30 days of hiring the new employee, or the employer must have documentation of a good faith effort to complete them. Currently, there is no specification in the FMCSRs for what minimum information must be investigated, nor is there a requirement for previous employers to provide that information to prospective motor carrier employers when requested. Consequently, many former employers decline to respond to employment investigations, while others—for fear of litigation—merely verify that the driver worked for the carrier and provide the driver's dates of employment.

The Hazardous Materials Transportation Authorization Act of 1994 was signed into law on August 26, 1994 (Pub. L. 103-311, 108 Stat. 1677) (HazMat Act), partly codified at 49 U.S.C. 5101 through 5127. Section 114 of the HazMat Act directed the Secretary of Transportation (Secretary) to amend § 391.23 to specify the minimum safety information to be investigated from previous employers as part of performing the required safety background investigations on driver applicants. Section 114 of the HazMat Act requires a motor carrier at minimum to investigate a driver's accident record and alcohol and controlled substances history from all employers the driver worked for within the previous three years. All previous employers are required to respond to the investigating employer within thirty days of receiving the investigation request.

The agency published a Notice of Proposed Rulemaking (NPRM) for implementing driver safety performance history regulations in the

Federal Register

on March 14, 1996 (61 FR 10548) and a Supplemental Notice of Proposed Rulemaking (SNPRM) on July, 17, 2003 (68 FR 42339).

Summary of the NPRM

In response to the requirement at section 114 of the HazMat Act of 1994, the agency (then the Federal Highway Administration (FHWA), FMCSA's predecessor agency) issued an NPRM on March 14, 1996. It proposed changes to 49 CFR part 391 (Qualification of Drivers), with proposed conforming amendments to parts 382 (Controlled Substances and Alcohol Use and Testing), 383 (Commercial Driver's License Standards; Requirements and Penalties), and 390 (Federal Motor Carrier Safety Regulations; General). The agency proposed under § 391.23 that motor carriers investigate the following minimum safety information for the previous 3-year period from all employers who employed the driver during that time: (1) Hours-of-service violations that resulted in an out-of service order; (2) accidents as defined under § 390.5; (3) failure to undertake or complete a rehabilitation program recommended by a substances abuse professional (SAP) under § 382.605; and (4) any “misuse” of alcohol or use of a controlled substance by the driver after he/she had completed a § 382.605 SAP referral.

The existing § 391.23(b) requirement to make an inquiry for a driver's driving record(s) from the State(s) was retained. In addition, to harmonize the proposed § 391.23(e) with then current alcohol and controlled substances regulations under § 382.413, the agency proposed the conforming amendment that the motor carrier must obtain the driver's written authorization to investigate the required alcohol and controlled substances information. Current and former employers will be required to respond to an investigating employer within 30 days of receiving an investigation request. The investigating motor carrier would have to afford the driver a reasonable opportunity to review and comment on any information obtained during the employment investigation, and would have to inform the driver of his/her right to review the investigation information received at the time of application for employment. Conforming changes were also proposed to §§ 383.35(f) and 391.21(d) to reinforce the driver notification requirement.

Further, the agency proposed under § 390.15 to change the required retention period for the accident register maintained by motor carriers from one year to three years, and to begin requiring motor carriers to provide information from the accident register in response to all prospective employer investigations pursuant to § 391.23. These provisions would facilitate the required investigation of accident information by prospective employers by expanding a source of accident data that was already being collected and maintained by motor carriers for other purposes.

When the NPRM was published in 1996, FMCSA's alcohol and controlled

substances regulations (codified at 49 CFR part 382) required employers to investigate: (1) Alcohol tests with a result of 0.04 or greater alcohol concentration, (2) verified positive controlled substances test results, and (3) refusals to be tested. Section 382.413(a)(2) then allowed a previous employer to pass along alcohol and controlled substances test information received from other previous employers (as long as the information covered actions occurring within the previous two-year period). Under then § 382.413(b), if an employer found that it was not feasible to obtain the alcohol and controlled substances information prior to the first time a driver performed a safety-sensitive function for the employer, that employer could only continue to use the driver in a safety sensitive function for up to 14 calendar days. After that time period, the employer could not use the driver in a safety-sensitive function unless the requisite information was obtained, or the employer documented having made a good faith effort to obtain it.

In its 1996 NPRM, the agency also proposed numerous conforming amendments to expand the type of alcohol and controlled substances information that should be sought under § 382.413(a). Employers would be required to investigate whether, in the past 3 years, a driver had: (1) Violated the prohibitions in subpart B of part 382 or the alcohol or controlled substances rules of another DOT agency, and (2) failed to undertake or complete a SAP's rehabilitation referral pursuant to § 382.605 or pursuant to the alcohol or controlled substances regulations of another DOT agency.

Beyond incorporating the HazMat Act requirements into part 382, the violations enumerated in § 382.413 would also have been included in the alcohol and controlled substances regulations of “all DOT agencies.” The FHWA believed that some drivers might apply for positions that require driving a CMV after having violated the alcohol or drug use prohibitions of another DOT agency. Therefore, the agency included a requirement for an employer to investigate information from all past employers for which a driver had worked in a position covered by the alcohol and/or drug prohibitions and testing requirements of another DOT agency. That could ensure that persons applying for positions that involved operating a CMV would have all of their relevant records of violations investigated. It would also have ensured that a SAP evaluated persons who test positive, and that violators completed a recommended rehabilitation program before returning to perform safety-sensitive functions.

The proposed revision to § 382.413(a)(2) making it a requirement to pass along alcohol and controlled substances information received from other previous employers, when responding to a prospective employer's investigation required by then § 382.413(a)(1), was previously incorporated into the FMCSRs by a technical amendment published in the

Federal Register

on March 8, 1996 (61 FR 9546). However, because it was later determined that change to § 382.413(a)(2) constituted a substantive change, which should have been subject to public notice and comment before becoming a final rule, the agency included it in the March 14, 1996 NPRM. It was also subsequently included in the notice and comment that led to revision of part 40 in 2000.

In a related conforming amendment proposed to then § 382.405, disclosure of the information pursuant to then § 382.413(a) would have required the driver's written authorization, and responding employers would have been required to reply within 30 days of receiving the investigation request. Under § 382.413(b), the agency proposed extending the time period a new employer would be allowed to use a driver in a safety-sensitive function without having received the requisite alcohol and controlled substances information from 14 days to 30 days. After 30 days, the employer would have been prohibited from continuing to use the driver to perform safety sensitive functions without having received, or documented a good faith effort to obtain, the driver's alcohol and controlled substances history.

Summary of the SNPRM

Comments received on the NPRM were summarized in the SNPRM. One significant issue was concern on the part of motor carriers that they would be subjected to considerable costs through litigation if they furnished background information and it was used to deny employment to drivers. In section 4014 of the Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 105-178, 112 Stat. 107, 409, (June 9, 1998)), Congress created a limitation on liability to protect motor carriers, their agents and insurers from being found liable because they supplied and used driver safety performance history records in the hiring decision process, but also established restrictions intended to protect the rights of drivers and their privacy from misuse of such investigative information.

Another significant concern was that the proposal would impose significant new recordkeeping and reporting burdens on previous motor carriers, especially small entities. Commenters, including the Small Business Administration (SBA), requested that the agency include considerably more discussion of possible burdens to foster more informed comments from the public.

FMCSA responded to the requirements of section 4014 of TEA-21, now codified at 49 U.S.C. 508, and the requests to provide more discussion of the possible burdens on previous employers. The agency published an SNPRM on July 17, 2003 (68 FR 42339). The FMCSA revised the proposals through the SNPRM to include the new employer liability limitation and driver protections mandated by section 4014 of TEA-21. It also refined the safety performance history data list of items prospective employers must request for new applicants in response to comments to the NPRM, and related changes to agency alcohol and controlled substances regulations made by rulemakings since the 1996 NPRM. In addition, an enhanced regulatory flexibility analysis, Paperwork Reduction Act analysis, and a detailed regulatory evaluation required by the new designation as a significant rulemaking, were added addressing comments to the docket from the SBA and others.

The SNPRM specified minimum safety performance history data that a motor carrier must investigate from previous employers under the proposed § 391.23(d) and (e). It differed from the NPRM by: (1) Refining the list of what information is to be investigated from previous employers, (2) establishing employer liability limitation for providing and using the driver safety performance history information, (3) clarifying drivers' rights to review, correct, or rebut information provided, (4) providing enhanced Regulatory Flexibility Act and Paperwork Reduction Act analyses, (5) providing a detailed Regulatory Evaluation, and (6) dropping conforming amendments to part 382 because they were previously addressed under separate rulemakings. The SNPRM provided 45 days for public comment, which closed on September 2, 2003.

Discussion of Comments to the SNPRM

As of October 1, 2003, the FMCSA had received 38 written comments on the SNPRM. Commenters include motor carriers, corporations, associations, individuals, an insurance company, a

union, and a public interest organization.

General Support and Opposition

Fifteen commenters including motor carriers, associations, public interest groups, and a union generally support the SNPRM and state that the proposed rule is a long overdue step in the right direction.

Many of those same commenters, and others, criticize various proposals in the SNPRM. For example, American Trucking Associations, Inc. (ATA) writes—

Generally, there is consensus [among their membership] that the proposal to amend the Federal Motor Carrier Safety Regulations (FMCSRs) to require previous employers to respond to employment and safety history inquiries will be beneficial and will enhance the ability of motor carriers to obtain specific, objective information on important aspects of prior safety performance of driver applicants beyond what is now generally furnished. * * * Despite our general support, the intended safety gains will not be realized unless several fundamental changes are made in the proposed rule.

The opposition to the proposals set forth in the SNPRM generally center around the process for obtaining driver safety performance history information, the limited liability of employers, the burden placed on motor carriers to provide and obtain the employee information, and FMCSA's cost/benefit analysis. For example, Con-Way Transportation Services (Con-Way) comments that the rule would “delay the hiring of drivers, increase paperwork and [administrative burdens] with little or no benefit” and “[t]he cost assumptions made by the FMCSA are insufficient.” In addition, one individual writes that the burden should not be on the motor carriers to enforce alcohol and controlled substances rules, but rather on the State to suspend a driver's license.

Owner Operator Independent Drivers Association, Inc. (OOIDA) also states that “The requirements for motor carriers to investigate the safety background of truck drivers as part of the hiring process has always been a good idea in theory but a dubious practice under the FMCSA rules.” OOIDA continues, “Beyond a carrier's duty to determine whether a driver is qualified under the rules to drive a truck, the existing rule does not require a carrier to take any particular action or make any particular decisions based on the driver information it receives.”

OOIDA also expresses a unique concern to this proposed rule. OOIDA comments that—

It is important for the FMCSA to create rules that are fair on their face and comport with the legal rights and responsibilities of the parties under the law. But FMCSA should also keep in mind that professional drivers have little or no bargaining power with motor carriers. Carriers set the driver's agenda through every step of the hiring process and during the length of their relationship. Drivers who do not accede to a carrier's demands, no matter what they are, usually face one result, termination. Drivers who try to assert their rights, including the kind of rights proposed in this rule, are told to be quiet if they want to keep their job.

FMCSA Response:

The FMCSA appreciates the thoughtful comments and many specific suggestions received from commenters on both the NPRM and SNPRM. As discussed under the following topics, the FMCSA has carefully considered these comments and has incorporated many of the suggestions into the final rule.

Timetable To Obtain Safety Performance History for New Drivers

Several commenters discuss the timetable for prospective employers to obtain safety performance histories for driver applicants outlined in the proposed rule. Those commenting from the perspective of being a prospective hiring motor carrier commonly suggested reducing the allotted time. Those commenting from the perspective of being a previous employer providing driver safety performance history information, commonly suggested increasing the allotted time.

Several commenters are opposed to the overall length of time the proposed rule, in their view, would permit for obtaining, providing, and refuting employee history information. Under the proposed rule, past employers would have 30 days to respond to prospective employers' investigation requests. There are up to two additional days for providing copies of the investigations to a driver wanting to review his or her record, and possibly another 30 days for the rebuttal process. Truckload Carriers Association (TCA) states that “assuming that FMCSA intends for the prospective employer to delay its hiring decision pending the running of the appeal time, it would be possible under the proposed rule for carrier hiring decisions to be forced to be delayed for as long as sixty (60) days.”

The length of time, write other commenters, forces motor carriers to hire drivers conditionally. As Con-way writes, “most carriers, would not want to hire someone until the investigation is complete. Hiring a driver and then terminating his employment after receiving information from previous employers is not an acceptable practice.” Another general concern with the time allowed to obtain a driver's safety performance history is that such a delay in the hiring decision process will compel drivers to look for jobs outside the industry.

Con-Way recommends an alternative timetable. Con-Way suggests a 5/5/2/5 business day structure where: (1) The prospective employer has five business days to request the driver safety performance history investigation data, (2) the previous employer has five business days to respond to the request for information, (3) the applicant must send corrections to the previous employer within two business days, and (4) the previous employer must respond to the request for corrections within five business days.

FMCSA Response:

Because this is a rather complex process with numerous possibilities, each component of the time line is discussed below in detail as a separate topic. FMCSA has carefully considered these comments and has incorporated many of the suggestions into the final rule, while balancing the need for large truck and bus safety on our nation's highways.

30-Day Investigation Period (§ 390.15 and § 391.23 (g))

Seven commenters answered from the perspective of a hiring motor carrier and recommend reducing the time period allowed for previous employers to respond to requests for new driver safety performance history information. One of those commenters proposes that the response time period be ten days. Most of those seven commenters suggest reducing the time period allowed for the investigation from 30 days to five days.

Commenters cite various reasons for recommending the reduction in response time. For example, the TCA explains from the perspective of the truckload sector, “the trucking industry has been experiencing a driver shortage for years and this shortage is not expected to end any time soon. Because of the shortage, carriers have a critical need to be able to screen prospective drivers in the shortest time possible.” Commenters express concern that the length of time would force some drivers to look for employment outside the motor carrier industry. In addition, Consumer Energy remarks, a lesser amount of time “should be ample time to gather information that would already be assembled in order to not delay a potential employer's hiring decision.” Finally, commenters express concern that the length of time will force conditional hiring of drivers while the process is completed. As TCA explains,

A major safety drawback of the 30-day time frame proposed is that many carriers will find themselves being forced to hire drivers on a conditional basis instead of waiting as long as thirty days to receive and review the required information beforehand, only to later find out that one or more of the drivers they hired should not have been hired because of the safety risk they pose. Clearly, such an outcome unnecessarily puts the public at risk and could easily be prevented if the 30-days were reduced to five.

The International Brotherhood of Teamsters (IBT) offers no objection to reducing the time period as long as employers can provide accurate information in compliance with the regulations in that time frame.

Two commenters answered from the perspective of a previous employer providing information. One recommends increasing the time period for a previous employer to respond. This commenter suggests increasing the time period to 60 days in order to reduce the burden on small businesses. Another commenter proposes a 15-day hardship extension if the prospective employer agrees.

FMCSA Response:

The length of time allowed for previous employers to respond to an investigation is specified in the HazMat Act as within 30 days. Although FMCSA could specify a shorter response time, the agency is cognizant that the majority of motor carriers that will now be required to provide this information for the first time are small businesses. FMCSA believes that the implied 30 days in the existing regulation for provision of this data continues to be the most considerate for the majority of impacted entities. The regulation at § 391.23 (b) and (c) has for many years said “* * * must be made within 30 days of the date the driver's employment begins.” The text proposed in the SNPRM for § 391.23(c) was slightly revised to conform to the language set forth in 49 CFR 40.25(d) as “* * * must be completed within 30 days of the date the driver's employment begins.”

FMCSA notes that it has always been up to the motor carrier whether to immediately employ an applicant and have that person operate a commercial motor vehicle for that motor carrier during the 30-days allowed for the motor carrier to obtain the required inquiry and investigation information. This final rule still leaves that decision to the motor carrier and its insurer.

Two-Day Response to Driver (§ 391.23(i)(2))

The SNPRM proposed that the prospective employer be required to provide the driver with his or her previous employer-provided records within two days of the driver's written request, or within two days of having received the information if the driver request is presented before the investigation information arrives. Five commenters recommend increasing the time that a prospective employer has to respond to a driver's request for copies of the information received from previous employers. Recommendations were for five, seven, or ten days. Commenters cite the proposed 2-day requirement as an unreasonable burden especially during concentrated hiring periods, stating that the time to retrieve records, especially if records are kept off site, and limited staff resources are reasons to increase the time period. Most commenters mention that an increase in this time period should not unduly disrupt prospective employer hiring operations.

One commenter agrees with FMCSA's proposal of two business days for the prospective employer to provide a copy of the investigative data to the driver.

FMCSA Response:

FMCSA asked whether a longer time period should be allowed, and suggested 5, 7 and 10 days. Comments to the docket, especially in regard to small business concerns, appear to generally favor lengthening the time allowed for a prospective motor carrier to provide previous employer information to a driver who requests a copy of that investigation information. Therefore in the final rule FMCSA has increased the proposed 2 days for that function to 5 days. The agency believes this will provide carriers a greater degree of flexibility without detrimentally impacting driver rights.

30-Day Driver Correction and Rebuttal Period (§ 391.23(j)(3))

Almost no commenters directly addressed this issue. Two commenters recommend reducing the time the previous employer has to send the corrected or rebutted information to the prospective employer from 30 days to 20 days. Another recommends 5 days. The commenters suggest this change in order to significantly reduce the time both the applicant and the prospective employer are awaiting a decision on the applicant's employment.

OOIDA is concerned that drivers have no leverage to get previous employers to correct driver safety performance history, and a disgruntled previous employer might deliberately delay responding as long as allowed, thus leaving the driver unemployed for that period of time. Both TCA and National School Transportation Association (NSTA) are concerned about the total time that could elapse before a hiring decision could be made.

FMCSA Response:

The few commenters who addressed this question are in favor of shortening the time period allowed for the driver and a previous employer to resolve differences, or include a rebuttal from the driver in the previous employer's information. There was no opposition to shortening the time allowed from any of the commenters to the docket in response to this question in the SNPRM. After reviewing these comments, FMCSA believes a shorter response period is warranted.

Therefore, the final rule is revised to reduce the proposed 30 days for a previous employer to respond to a request for correction to 15 days. This still allows the previous employer the time and opportunity to review the driver's record to determine if the previous employer agrees the correction is warranted.

The final rule further clarifies that if the driver chooses to submit a rebuttal, the previous employer has 5 days to forward the rebuttal to the prospective motor carrier employer and to append a copy of the rebuttal to any other information in the driver's safety performance history record. The agency believes that drivers will have somewhat of a disincentive to submit a rebuttal first, if a correction is possible. This is because a rebuttal presents a conflicting story to a prospective motor carrier employer, whereas a correction represents agreement between the parties involved. Upon receiving a rebuttal, the previous employer must forward a copy of it to the prospective motor carrier employer and append it to the driver's safety performance history record.

There are two scenarios that could occur when the driver applicant receives a copy of the previous employers' safety performance history information. Under the first scenario, the driver could first request a correction. The previous employer could agree to the correction and forward the corrected information to the prospective motor carrier employer within 15 days. However, if the previous employer disagrees with the driver that a correction is warranted, the previous employer could decline to correct and notify the driver within 15 days of its decision not to do so. The driver could then submit a rebuttal, and the previous employer would have five (5) days to forward the rebuttal to the prospective motor carrier employer, and include the rebuttal in the driver's safety performance history record.

Under the second scenario, the driver could simply submit a rebuttal as a first step, with no request for correction of

the data. The previous employer would then have five days to forward a copy of the rebuttal to the prospective motor carrier employer.

Thus, the 30 day time period is reduced to a minimum of 5 days and a maximum of 20 days. FMCSA believes this responds to commenters concerns, while not detrimentally impacting the drivers or employers involved.

Review Time

Under the proposed rule at § 391.23(i)(2), a driver may submit a written request to the prospective employer to review his or her safety performance histories received by that motor carrier. OOIDA suggests that, rather than the driver needing to request his or her previous employer information to review, the prospective employer should automatically give the driver a copy of any background information it receives. OOIDA supports the driver's right to access his or her record, and believes this recommendation will lead to quicker corrections, streamline the investigation process, and eliminate unnecessary burden on the driver to submit a request.

American Truck Dealers Division of the National Automobile Dealers Association (ATD) states that as proposed, employers would have two days to provide an employee access to information upon request, and prior employers would have 30 days to respond to a driver's concerns. They point out that the rule does not appear to set a time limit for the driver's review itself. ATD recommends that we allow drivers 3 days after receipt of requested information to request corrections.

FMCSA Response:

In response to OOIDA's point, FMCSA believes it is important to minimize the cost of regulations. However, it is also necessary that a reasonable opportunity be provided drivers to review, correct and rebut previous employer safety performance history information. Thus, any driver must be able to request that prospective motor carrier employers provide information received from previous employers. To minimize the potential for such requests to be frivolous actions taken by some drivers, FMCSA requires this request to be in writing. FMCSA believes that it would be overly burdensome for prospective employers to provide information not requested or frivolously requested by the driver.

FMCSA can not address ATD's recommendation in this final rule on setting a limit on how long a driver has to respond to a previous employer seeking correction or rebuttal, since this is not addressed in the SNPRM. Moreover, the agency believes this is likely to be self-regulating, since it is in the driver's interest to request correction or rebuttal as quickly as possible.

Prospective Employer Responsibilities

3-Year Requirement (§ 390.15(a); § 391.23(d))

Under the proposed rule, motor carriers must contact all the previous DOT regulated employers of the applicant driver from the last three years. Seven commenters address this requirement. Several commenters mention the ineffectiveness and paperwork burden of this requirement. Two commenters state that with the high level of driver turnover involved in their sector of the industry [truckload], requesting information from prior employers in the last three years could involve numerous inquiries. Also, the potential for gaps in employment history poses problems in complying with this requirement. Another commenter mentions the paperwork burden on small businesses and that this requirement forces motor carriers to keep employment records longer than the six months now required for hours-of-service record of duty status logs.

A few commenters discuss more specifically the requirement that three years of employment history must be investigated. One commenter recommends that all DOT modes be consistent in the time period required for the background investigations. For example, the length of background investigations is specified as 2-years in part 40, and 3-years in part 391. Another commenter submits that no requirement in the rules should create longer retention periods than those currently applicable. For example, records relating to the collection process for alcohol and controlled substances testing programs must be retained for two years (§ 382.401(b)(2)), whereas records of negative and cancelled controlled substances test results must be maintained for a minimum of one year (§ 382.401(b)(3)). Finally, commenters suggest that only the immediate former employer needs to be contacted or that a valid commercial driver's license should be sufficient evidence of a prospective employee's driving record.

OOIDA expresses concern that if “FMCSA requires former carriers to turn over all safety employment history in the carrier's possession, then in many instances it will be requiring more than three years of records to be transmitted.” OOIDA continues by saying that “FMCSA does not give guidance in the SNPRM as to whether the previous carrier should be required to delete any information older than three years from its own records or from the records it received from other carriers.” OOIDA is concerned that older information would be less reliable and less accurate.

AT&T observed that driving is a minor part of at least some of their jobs. They asked whether the inquiries and investigations must be made for every job applicant or only for candidates who are actually being extended a job offer, and when must they be made?

FMCSA Response:

The requirement to investigate all former employers of the past 3 years is specified in the HazMat Act. FMCSA therefore has no latitude, and must specify in the final rule that the background investigation cover the prior three years. The problem with possible gaps in employment history based on this process is well known. It includes former employers that have gone out of business, as well as those not listed by the driver applicant when applying for a job. The alcohol and controlled substances regulations at 49 CFR 40.25(c) and 40.333(a)(2) attempt to mitigate such possible gaps in previous employer information by requiring an employer to retain for 3 years any § 40.25(b) specified information that any previous employer furnished and to pass the most recent 2-years of it along to prospective employers performing an investigation of the driver applicant.

The retention period specified for data in the driver qualification file in § 391.51(d) has been 3-years since at least 1971. The data retention period specified for hours-of-service records of duty status logs in § 395.8(k) has been 6-months since 1982. No changes to these retention periods were proposed in the SNPRM, and therefore none are being made in this final rule.

Parts 40 and 382 currently specify making investigations to previous employers for a minimum of 2-years regarding alcohol and controlled substances data. However, the HazMat Act requires all safety performance history investigations, including those for alcohol and controlled substances information, to be made to all employers of the driver for the previous three years, which is what was proposed in the SNPRM. A motor carrier that is in compliance with the new 3-year investigation requirement in § 391.23 will automatically be in compliance with the 2-year background investigation requirements of parts 40 and 382.

The 2-year requirement for data retention found at § 382.401(b)(2) refers to information about the processes used

by the employer to collect the alcohol and controlled substances information, not the actual results that are considered driver safety performance history information. The correct reference for data retention about positive driver test results would be § 382.401(b)(1), and it specifies 5 years as the minimum retention time. The one year requirement for data retention found at § 382.401(b)(3) refers to negative test results and canceled tests.

However, FMCSA believes the thrust of the comments is focused on the background time period that must be investigated. They are correct that § 40.25(b) specifies investigating employers from the previous 2-years. Since the HazMat Act specifies this investigation must be for 3-years, motor carriers will now be required to investigate one additional year of alcohol and controlled substances background driver safety performance history information than entities regulated by other DOT modes.

In order to clarify when the 3-year time period begins, text for the final rule is modified for § 391.23(e) to define that the three years to be investigated and reported on begins from the date of the employment application. This is the point of reference used in parts 40 and 382, and such text already exists in the proposed text at § 391.23(d) for accident data. In regard to OOIDA's concern about more than 3-years of background data being provided by previous employers, FMCSA believes most employers where allowed will choose not to retain or provide data older than the 3-year minimum requirement as a means of reducing their costs.

The requirements in parts 40 and 382 encourage the prospective employer to complete the investigations before allowing the driver to perform safety sensitive functions for that employer. However, just as in part 391, they do not require the employer to complete the investigations until 30 days from the date the driver's employment begins. Thus, an employer would be free to screen and test the driver in any way the employer chooses prior to performing the investigations required by this rulemaking, including hiring the driver. However, after 30 days from beginning employment, the employee may not be used to operate a CMV unless the responses to the investigation requests are received and placed in the appropriate file, or documentation of a good faith effort to obtain such data is placed in that file.

In regard to the question by AT&T, FMCSA is aware there are different screening processes used by different employers covered by the FMCSRs. As pointed out by AT&T, some employers physically see and screen the driver before deciding to perform the background inquiries and investigations required by § 391.23 under this final rulemaking. Some begin the § 391.23 inquiry and investigation process immediately for all records available based on phone applications for each applicant before seeing them.

Companies absolutely may perform substantial screening of potential employees on their own company job criteria that forms the major portion of the job responsibilities. The requirement contained in this final rule merely requires the company to complete the inquiries and investigations required by § 391.23 on all drivers that will operate a CMV within 30 days of that employee being hired. Such drivers have invested considerably in acquiring skills sufficient to qualify to work for companies. A similar pattern applies to a number of employers covered by the FMCSRs, but whose primary business requires the employee to have skills in addition to being a driver, plumber, electrician, etc. All such employees have much more at stake to preserve their professions, and may be less likely to have used alcohol or controlled substances or been involved in numerous accidents. It would be good business sense for such companies to only perform inquiries and investigations required by § 391.23 after they have determined the applicant passes all their other company screening requirements.

Accident Information (§ 391.23(d)(2))

The HazMat Act requires prospective motor carrier employers to investigate accident data for the prior three years, and for previous motor carrier employers to provide all accident data for that driver for the previous three years from the date of the application. As pointed out in the SNPRM, some process is needed to enable a smooth transition from the current regulation's one year retention requirement to the three year retention period required by the HazMat Act.

The SNPRM proposed a phased process whereby beginning on the effective date of the final rule, motor carriers would be required to retain all accident information then retained in their accident registers, plus all new accident information, for three years. This adds a requirement of two additional years of retention to the current one year retention requirement. Thus, the retained accident data will grow from the current one year of retained data to three years over time.

No comments were received on that phased approach to data retention. Therefore, the proposal as presented in the SNPRM is included in the final rule.

TCA states that the proposed § 391.23(d)(2) would require past employers to report and prospective employers to review the specific data related to a driver's accident record, as specified at § 390.15, for the preceding three years, and include it in the driver's investigation history file. TCA believes that, while such accident information may be relevant to FMCSA and clearly should be maintained by carriers, such information is not at all relevant to a hiring decision and should therefore not be required.

OOIDA is concerned about the definition of “accidents.” OOIDA states, “It is the experience of OOIDA members that the term “accident” is sometimes used loosely in the trucking industry. * * * This casual use of the word ‘accident’ leaves drivers’ safety histories vulnerable to interpretations that are inaccurate and could unreasonably damage their job prospects.” OOIDA suggests referring to the definition of “accident” as defined in § 390.5 to help avoid this problem.

Other commenters express concern about the accident data itself. Current § 390.15(b)(1) lists six items that must appear on the accident register. ATA believes that two items from the accident register, driver's name and date of accident, along with two data elements that are not in the accident register, (1) any traffic citation(s) related to each accident and (2), if available, whether each accident was determined to be “preventable” or “non-preventable.”, are necessary to make an informed hiring decision.

In contrast, J.B. Hunt expresses considerable concern about the amount of effort that would be required to deal with driver protests about carrier attribution of “preventability.” It says “We deal with requests daily to change our attribution of preventability of accidents on driver's records. The burden to maintain all of the rebuttals and explanations on why every accident should be non-preventable would, in and of itself, be extremely burdensome.”

FMCSA Response:

The HazMat Act requires previous employers to report 3-years of accident information to prospective employers. The NPRM, SNPRM and this final rule all use the existing definition of accident as contained at 49 CFR 390.5. The only changes proposed in the SNPRM and finalized in this rule to § 390.15 are for accident data retention to allow a phase-in period from the current one year to the required three years of accident data

retention and provision. If employers choose to share information about minor accidents not included in the definition at § 390.5, there is no prohibition on them doing so. However, for purposes of making the minimum requirement clear, the phrase “as defined by § 390.5 of this chapter” is added to § 391.23(d)(2) in the final rule.

Regarding ATA's comments to change the data items/elements recorded in the existing accident register and reported in response to requests for information, FMCSA believes this would represent a substantial change in the existing definition of accident data, and is outside the scope of this rulemaking. Comments to the docket, very explicitly by J.B.Hunt, point out that attribution of “preventable” and “non-preventable” contributes to drivers contesting the carrier's accident information. Thus, FMCSA has decided not to make revision to the definition of accident as part of this final rule.

Standardized Forms and Instructions (§ 391.23(f))

The SNPRM proposed a conforming amendment in § 391.23(f) that the prospective employer provide the previous employer with the driver's written authorization to obtain his or her safety performance history information, often via a release form. Online Employment Verification Services (OEVS) states that the problem of releasing alcohol and controlled substances information is magnified because prospective employers do not know the proper verbiage to include on the driver authorization release. According to OEVS, at least 10% of the requests do not meet the requirements of DOT for driver authorization. In addition, up to 75% are vague or difficult to interpret as to whether they comply, resulting in slower turn around time for the prospective employer to receive the requested information. OEVS suggests that DOT provide standard verbiage for requestors to include in the driver authorization form they use. This would allow 3rd party providers, such as OEVS and previous employers, to process such requests without hesitation, eliminating the time and cost required to scrutinize and analyze whether the correct details are contained within the document, thus increasing the percentage of successful requests and shortening the response times.

Also, commenters suggest that the FMCSA provide outreach and standard instructions along with standardized forms. For example, Petroleum Marketers Association of America (PMAA) “believes that the way FMCSA issued its new hours-of-service regulation is an appropriate model of how to publicize any new regulations on conducting safety background checks. The brochures, pocket cards,

etc.,

explaining the hours-of-service rule were very beneficial to PMAA members.”

FMCSA Response:

The defining procedures for what must be investigated and what must be reported for alcohol and controlled substances are spelled out in parts 40 and 382. This rule merely adds conforming amendments for that requirement to part 391. The specification of what must be included in the driver's authorization for the previous employer to release the alcohol and controlled substances data is found at § 40.321(b). In order to clarify what authorization information must be provided, a reference to § 40.321(b) is added in this final rule at § 391.23(f). FMCSA notes that entities like OEVS are free to provide their clients with a form meeting the requirements of § 40.321(b).

Record of Compliance

The proposed rule would require employers, both prospective and previous, to maintain certain employee records. Petroleum Transportation & Storage Association (PTSA) urges the FMCSA to drop the 1-year record retention requirement for non-hired drivers. PTSA believes that this provision would make prospective employers a depository of information that is completely unrelated to their responsibility for maintaining and providing employee records under the FMCSRs. In addition, PTSA argues that there is no need for a prospective employer to keep such records, since the very same information is already on file with the driver's previous employer, and that the potential liability involved with the management of non-hire driver information is far too great when weighed against any discernable regulatory benefit that may result. Finally, PTSA stresses the burden for small businesses of maintaining records. Reusable Industrial Packaging Association (RIPA) agrees with PTSA's arguments and also does not believe it serves any purpose to require employers, who decide against hiring a driver applicant, to maintain for a year any information received from previous employers.

Two commenters specifically discuss the documentation requirement at § 391.53(b)(2) for the prospective employer to show that a “good faith” effort was made to contact previous employers. National Ready Mixed Concrete Association (NRMCA) explains that good faith “is a vague term, open to many interpretations.” It asks for specific examples of “good faith” efforts to help eliminate any question about being in compliance. The other commenter states that the “current system of “good faith” checks is absolutely abysmal” and that any system of contacting former employers should be administered by a pseudo-governmental agency or contractor.

FMCSA Response:

FMCSA proposed the one year retention of background investigation information for all drivers as part of its desire to establish an enhanced capability for enforcement of these requirements. However, we are persuaded that eliminating this requirement would do no harm. If the driver is not hired, it is not relevant to safety concerns whether the prospective employer performed the investigations and inquiries required by § 391.23. Further, if the driver applies and is hired by another motor carrier, that employer is required to have performed the required investigations and inquiries and to have placed the information received in the appropriate file, or documented a good faith effort to have done so. Any additional data that may have been gained regarding previous employers who are failing to provide the required information can be gained via the complaint process, as recommended in §§ 391.23(g)(3) and 391.23(j)(4).

With regard to NRMCA's request for examples of good faith efforts, FMCSA notes that this term has been used in the FMCSRs for a number of years. The agency believes that the most appropriate guidance it can give in the context of this rule is that employers document in the driver investigation history file their efforts to comply with the requirements to obtain the background investigation information. This could also include documentation of having reported previous employers to FMCSA using the procedures at § 386.12 that failed to provide the required safety performance history information.

Further, FMCSA believes the environment for verifying the “good faith” requirement will be substantially changed by this rule. There is no current requirement for previous employers to respond to investigations. Establishment of this requirement by this final rule requires previous employers to furnish the information and keep records of having done so. This will make it possible to corroborate whether a motor carrier has contacted a previous employer. Thus, the substantial change in the reporting and recordkeeping requirements of previous employers will in turn create the ability to verify

whether there was a good faith effort made by prospective motor carriers to obtain this data.

In regard to assigning the responsibility for administering driver safety background checks to a separate entity, the HazMat Act specifically requires the prospective employer, or perhaps their agent, to make the investigations to the previous employers, or their agent.

Previous Employer Responsibilities

Requirement To Respond

Several commenters express concern that the proposed rule does not impose a requirement on the previous employer to respond to the prospective employer's request. Most commenters on this issue state that there is no burden of compliance placed on the previous employer. Coach USA explains that in their experience, “many previous employers fail to respond because they are not required to keep a record as such and do not fear enforcement.” In contrast, DAC Services recommends that—

The record keeping requirements should be consistent between Parts 40.25 and 391.23. If the FMCSA has found part 40.25(g) useful, it might prove useful under the requirements of 391.23. On the other hand, if 40.25(g) has not been beneficial, it should not be required under 391.23 and the 40.25(g) requirement should be revisited, as it requires considerable record keeping efforts on the part of motor carriers.

Although the proposed rule provides previous employers with liability “limitation” regarding their response to investigations, Coach USA points out that it does not allow for any means to enforce non-compliance by previous employers that choose to ignore such requests. Coach USA believes that this rule will be ineffective unless it includes an unequivocal requirement to respond for previous employers and to maintain corresponding records.

Two commenters are specifically concerned that the rule does not place liability with former employers that do not respond to a prospective employer's request for information within 30 days. In addition to issuing the rule, one commenter suggests that FMCSA educate employers, provide standard forms (possibly via the internet), and otherwise eliminate every possible reason for not supplying a valid response.

Five commenters sought clarification of the rule's enforcement mechanism. For example, Consumer Energy states, “The SNPRM suggests taking enforcement action, but does not provide details of the action, when an employer does not provide the required information in the allotted time.” Advocates for Highway and Auto Safety (AHAS)

* * * strongly supports this rulemaking action, but we are concerned that the agency does not plan any targeted oversight actions to ensure that prospective employers are requesting safety performance information on applicant drivers or that current or previous employers are complying with requests for the appropriate information.

AHAS states that the agency needs to emphasize, with specific action items, how it intends to publicize and educate the motor carrier community about its new responsibilities under this proposed regulation, exactly what oversight actions it will carry out to ensure very high rates of compliance, and specifically what enforcement actions will be brought against non-complying motor carriers.

Dart Transit Company (Dart) comments that the enforcement procedures, if a carrier does not respond, are unclear. Dart asks, “What penalty or penalties will be imposed and how will enforcement be achieved and by whom?” OOIDA agrees that “if FMCSA expects carriers to comply with these rules, it needs to consider adopting some kind of enforcement mechanism, including monetary penalties.” In addition, Dart believes some direction should be adopted in terms of the inquiring carrier. For example, Dart asks, “What is an inquiring carrier obligated to do if a response is not received?” OOIDA also remarks that whereas a driver who does not authorize release of his or her alcohol and controlled substances data cannot be hired, there are no penalties or consequences for carriers that fail to abide by this proposed rule. Finally, these commenters identify enforcement as an important issue and obstacle to the success of this rule.

Also, two commenters state that there is no requirement for previous employers to document or even maintain a log of to whom information about a previous employee was furnished. The commenters believe that, without this requirement, many previous employers may fail to respond because they are not required to keep a record as such and do not fear enforcement.

However, one commenter, concerned with the additional administrative burden, disagrees with the other commenters. It prefers that the FMCSA allow the industry some flexibility in responding to inquiries about the performance of past employees without mandating completion and retention of additional forms, especially if the driver retires, leaves the industry, or otherwise does not seek further employment.

FMCSA Response:

The conforming requirement in this rule for providing the required information to the prospective motor carrier employer and keeping a record of having done so, especially for alcohol and controlled substances, is based on the provisions found at § 40.25(g). That provision states that a previous employer 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. Thus, this previous employer recordkeeping provision is already contained in the proposed driver safety performance history requirements. Nonetheless, as clarification to avoid any possible confusion in the future, the language contained at § 40.25(g) is also added to the conforming language in the final rule at § 391.23(g)(1).

As with all violations of our regulations, FMCSA may cite and take enforcement action against carriers that do not comply with our regulatory requirements. Carriers who fail to maintain the records required by this rule may be cited and are subject to the fines and penalties prescribed in Appendix B paragraph (a)(1) to Part 386, Penalty Schedule; Violations and Maximum Monetary Penalties; Recordkeeping, which says “a person or entity that fails to prepare or maintain a record required by parts 385 and 390-399 of this subchapter, or prepares or maintains a required record that is incomplete, inaccurate, or false, is subject to a maximum civil penalty of $550 for each day the violation continues, up to $5,500.”

FMCSA is aware a number of previous employers covered by requirements in parts 40 and 382 are currently failing to provide the information specified at § 40.25(b) and required by § 40.25(h). Carriers that fail to provide the information required by §§ 391.23(g)(1) and 391.23(j) are subject to the fines and penalties prescribed in Appendix B paragraph (a)(3) to Part 386, Penalty Schedule; Violations and Maximum Monetary Penalties; Non-recordkeeping violations, which says “a person or entity who violates parts 385 or 390-399 * * * is subject to a civil penalty not to exceed $11,000 for each violation.”

FMCSA has a formal process in place for drivers and carriers that wish to file a complaint against a person or entity that fails to comply with the FMCSRs. FMCSA intends for drivers and prospective motor carriers to inform the agency using the existing complaint process specified at § 386.12, entitled

“Complaint.” This includes previous motor carriers that either fail to correct their records or include the driver's rebuttal, or who fail to provide the required information to prospective motor carriers. To make this clear, the FMCSA has added language to the final rule in §§ 391.23(g) and 391.23(j) pointing out that drivers and prospective employers should report information about such failures to comply with these requirements. Complaints about failures to comply will be investigated and carriers failing to comply will be cited, and in addition may be subject to civil penalties for other violations found during a carrier compliance review.

The agency believes inclusion in this rule of the requirement to record and provide the alcohol and controlled substances data, as well as accident data, may additionally create a legal liability for previous employers who fail to provide this data. Previous employers who fail to provide the required driver safety performance history information may ultimately be found liable if the requesting motor carrier hires an unsafe driver without receiving the requested history and the driver is involved in an accident.

Additionally, FMCSA believes the motor carriers who will choose to pay little attention to safety performance history information received and hire drivers with substantial adverse safety performance histories, likely are the same ones already doing this with driving behavior traffic conviction information received on the MVR from the licensing State or such predecessor States. FMCSA is in the process of analyzing a capability to enable SafeStat to better identify motor carriers who are systematically hiring drivers with poor driving records, and target them for a carrier compliance review. This is expected to also help with identifying motor carriers who continue to hire drivers with poor safety performance history. A copy of a current updated report on that analysis is included in the docket as document 85.

To ensure the effectiveness of this rule, FMCSA will undertake a number of activities, including: (1) Preparing guidance materials for enforcement of these new requirements; (2) monitoring the level of complaints received for non-compliance; (3) removing the previously issued interpretation Question and Answer 1 under § 391.23; (4) encouraging use of the FMCSA safety violation and commercial complaint hotline (1-800-DOT-SAFT) and Web site (

www.1-888-dot-saft.com

) for filing complaints; and (5) assembling a team to develop recommendations for continued improvements to the program.

With regard to the commenter concerned about recordkeeping regarding drivers that retire, leave the industry, or otherwise do not seek further employment as a driver after leaving a previous employer, there would be no requirement placed on any employer to report additional information.

Use of Third Party Providers

Two commenters ask FMCSA to add appropriate language to the final rule to specifically allow third-party providers to obtain driver safety performance history information for motor carriers. These commenters believe that third-party providers perform valuable services for motor carriers, especially during the driver-applicant screening and hiring process. The commenters state that, as written, the rule seems to imply that a motor carrier may use a third-party to perform the required investigations. The commenters believe that the rule should explicitly allow third parties to obtain information for prospective employers.

FMCSA Response:

The language in the proposed rule does not address how the prospective motor carrier may obtain information from previous employers. FMCSA does not believe it is appropriate for it to specifically endorse commercial companies.

The agency has existing guidance in the form of Question and Answer 2 under §391.23, indicating that a motor carrier may use a third party provider to obtain information to meet the inquiry requirements of § 391.23. Question 2 under § 391.23 says: “May motor carriers use third parties to ask State agencies for copies of the driving record of driver-applicants?” The answer is: “Yes. Driver information services or companies acting as the motor carrier's agent may be used to contact State agencies. However, the motor carrier is responsible for ensuring the information obtained is accurate.” There is similar guidance under § 391.25. FMCSA is aware that many motor carriers use third parties to obtain this information for them rather than directly dealing with many different State driver-licensing agencies.

The preamble to the SNPRM pointed out that if such a third-party party is the agent of the motor carrier, it would be covered by the limited liability implemented by this rule. If the third party is not the agent of the motor carrier, then it is not covered by these regulations, but is still operating under the provisions of the Fair Credit Reporting Act (FCRA) (15 U.S.C. 1681

et seq.

) for performing this function.

The provision by Congress of granting limited liability to agents of the motor carriers in carrying out the requirements of the HazMat Act is an opportunity for motor carriers and their agents to take advantage of such services, but it is not a requirement. The discussion about whether previous employers may charge fees for providing the required data, talks in terms of FMCSA encouraging a competitive, open, free, efficient, market economy approach to management of the fee issue.

Driver Information To Be Reported (§ 391.23(d)(1) and (2))

Several commenters urge FMCSA to clarify and to add details on what needs to be included in the information investigated about a driver's safety performance history, and what must be provided. For example, Qwest Communications International, Inc. (Qwest) recommends that additional language be added to § 391.23(d)(1) describing the general information about a driver's employment record that should be investigated. Qwest proposes that the general information further identify employment and job responsibilities.

OOIDA agrees and asks FMCSA to revise the description of employee background information in two ways. First, the rule should limit the investigation to information directly related to a driver's qualifications under Federal or State law. Second, the rule should require that the information reported in safety background investigations be made with sufficient detail so that an accurate safety assessment of the driver can be made. OOIDA is concerned that the broad language of proposed § 391.23(d)(1) could invite the dissemination of a wide range of non-safety information. In that section FMCSA would require that a prospective employer investigate “General information about a driver's employment record.” OOIDA believes that this requirement invites any and all information to be transmitted as part of a driver's safety background. OOIDA asks that FMCSA be much more specific, by listing the “facts” that make up the general background history that FMCSA proposes be transmitted, such as date of hire, safety information, and final date of employment.

FMCSA Response:

FMCSA agrees that the wording contained in § 391.23(d)(1) of the SNPRM for information the prospective employer is to request of the previous employer is general in nature. What was intended for this category is for the prospective motor carrier to

provide the driver identifying data, such as name, date-of-birth, and social security number for the driver on whom it is requesting safety performance history information, and for the previous employer to provide information about that same driver, such as starting and ending employment dates and job responsibilities. However, the agency is not specifying that information in the regulatory text of this final rule, so that employers have some degree of flexibility in providing such basic information. FMCSA does not believe that this type of information will detrimentally impact drivers. All of the information requested in § 391.23 is in the context of driver safety performance history.

How To Respond Absent Any Data (§ 391.23(g))

Section 391.21(g) requires all previous employers to respond to each request for a driver's record as outlined in the rule. Safe Fleet, Inc. comments that the proposed rule does not require a response unless the previous employer has derogatory information to report; however, the new employer must have a response within 30 days from every previous employer. Safe Fleet believes the previous employers should be required to respond in every case.

FMCSA Response:

All previous employing motor carriers must respond to each investigation within 30 days as specified in the HazMat Act. Responses are required even in the absence of data on accidents, or alcohol and controlled substances abuse. Accordingly, FMCSA has made this more explicit in § 391.23(g) of the final rule by adding words clarifying that a response is required even when there is no accident or alcohol or controlled substances data, by stating that no such data is on file.

Designated Contact Persons

Qwest requests that FMCSA include a provision indicating that employers must designate a person to receive requests for information from prospective employers and former employees, and clarify when the proposed time frames for required actions start. Qwest states that it is a large, national company, which routinely receives correspondence that is incorrectly or inadequately addressed, thus delaying delivery to the responsible party by up to several days. Qwest believes that compliance with time frames for required actions in the rule should be based on start times that begin when the designated responsible person within the organization receives the request for action, rather than when the request may be received by the organization.

FMCSA Response:

Each employer is free to provide their contact information in any way they desire to facilitate this process, such as on its Website, or perhaps designating an agent.

FMCSA has added requirements in the final rule language at § 391.23(d) for each prospective employer to include information on a point of contact when requesting this investigative background information, and for the previous employer to provide similar contact information on its response for use by a driver who may wish to contact that previous employer.

FMCSA intends for the previous employer's 30-day response period to begin when the prospective motor carrier submits the investigation request to the previous employer or its agent.

Applicability to Current Employer

Three commenters state that the term “previous employer” does not include the current employer. If an individual is currently employed and is seeking a new position, his or her current employer should be required to provide the accident history. FMCSA has clearly stated that previous employers must respond to requests for information under the new regulations. Unaddressed however, is the issue of whether a company currently employing a driver must respond to a request from a company that may be recruiting its driver. Two commenters want the FMCSA to clarify whether a carrier that currently employs a driver must respond to a request for information from a prospective employer. A third commenter recommends that FMCSA require both previous and current employers to respond to new or prospective employer inquiries.

FMCSA Response:

The HazMat Act defines previous employer as any employer that employed the driver in the preceding 3 years. From the prospective employer's point of view, a current employer is a previous employer. In accordance with the HazMat Act definition, FMCSA has added a definition for previous employer to § 390.5 in the final rule to clarify that it includes a current employer.

Appending Rebuttal (§ 391.23(j)(3))

Under proposed § 391.23(j)(3), if a driver refutes information from a previous employer, that rebuttal must be appended to, and provided with, the driver safety performance history information to each subsequent prospective employer that requests it. Commenters state that requiring previous employers to maintain rebuttals adds a significant and unnecessary burden to previous employers. For example, Coach USA requests that proposed § 391.23(j)(3) be amended to exclude the last sentence, which requires the previous employer to append the driver's rebuttal to its file information and to provide the complete file in any future requests. Coach USA believes that this specific requirement will place an undue burden on previous employers, and prejudice any response they may give to prospective investigating employers. Coach USA considers the fact that the rule allows for an applicant's rebuttal as sufficient to ensure that previous employers provide accurate information, should they choose to respond.

J.B. Hunt states that it has a concern with

* * * the provision for requiring motor carriers to maintain and provide to prospective employers the rebuttals of former drivers when the information provided by the motor carrier is correct, complete, and factual. J.B. Hunt terminates many drivers whose only purpose in life after termination is to make anyone associated with the carrier miserable. These drivers would likely submit rebuttals of several hundred pages, just to increase the carrier's costs.

J.B. Hunt further says “It should not be the previous motor carrier's responsibility to provide the rebuttal to prospective employers.”

Two commenters suggest that, in order to keep the process manageable and to be consistent with the Fair Credit Reporting Act, the rebuttal should be limited to not more than 100 words.

FMCSA Response:

The HazMat Act specifies that the safety performance history data be requested from the previous employer. The TEA-21 limitation on liability requires the driver to have an opportunity to correct the data or rebut it. If the driver determines a rebuttal is needed, it is necessary for that rebuttal to be provided each time, along with the data to which the driver does not agree. Since the data is coming from the previous employer or its agent, it is necessary for the driver rebuttal information to also come from the previous employer or its agent. Without this mechanism in place, future prospective employers would not receive the driver's rebuttal as part of the information furnished.

FMCSA has not specified a limit for the length of the driver rebuttal. The agency believes it is important for drivers to have the opportunity to adequately respond to what they believe is inaccurate information. Further, the agency has no evidence demonstrating

that this would be widely abused by drivers.

Applicants—Driver Rights

Applicants Rights (§ 391.23 (i), (j), (k) and (h))

Under the proposed rule, the prospective employer must inform the driver in writing of his or her review, correction and rebuttal rights in the hiring process. DAC Services recommends that the rule explicitly state that this written notification may be given to the driver subsequent to initiating the hiring application and initial screening processes to obtain driver safety performance history data, other than alcohol and controlled substances. This clarification would allow motor carriers to accept driver applications for employment over the phone or via the Internet without written notification of due process slowing or hindering such methods of quickly obtaining information.

Similarly, PTSA wants clarification of the rule that requires prospective employers to notify driver applicants of their rights regarding previous employers' records before an application is submitted. The rule only specifies that the prospective employer must “inform” the driver of the procedures for the use and collection of safety performance records. PTSA asks, “Does the FMCSA intend that this notification, like the notice of due process rights under 49 CFR 391.23(i), be in writing?'

PTSA also wants guidance on the requirement that the previous employer “take all precautions reasonably necessary to ensure the accuracy of the records.” PTSA requests that this language (and similar language contained in §§ 391.23(h) and (k)(2)) be clarified to specify the type of precautions the FMCSA has in mind.

FMCSA Response:

FMCSA has added a clarifying statement to the final rule language for § 391.23(i) that says the required notification in writing of driver rights may occur anytime prior to a hiring decision being made, but it must be made in writing to all applicants, including those not hired. The SNPRM pointed out that if a motor carrier is in compliance with § 391.21(b) this could be done as part of the employment application the driver signs.

The intent is to make it clear that provisions of the Fair Credit Reporting Act can apply as part of the job application process. The FCRA allows notification of the driver by telephone (or other electronic communication) that the prospective employer will obtain the inquiry and investigation information required by § 391.23 based on that application communication. FMCSA also notes that if the driver makes the application over the Internet, the required notification in writing about the driver's due process rights to review, correct and rebut could be provided by the prospective employer as part of the application process as well.

The request by PTSA for guidance regarding how previous employers can be in compliance with the requirement to “take all precautions reasonably necessary to ensure the accuracy of the records” cannot be addressed by FMCSA. To qualify for limited liability protection set forth in the HazMat Act, Congress intends for the previous employer to furnish accurate safety performance history information. As part of that limited liability concept, Congress also established the requirement for drivers to be able to review, correct and rebut the information furnished. The test of whether an employer has taken reasonable precautions to ensure accuracy would be addressed within the context of a driver taking a previous employer to court trying to prove the information furnished is false. With this as the test, employers should have sufficient records to substantiate that any information they reported is accurate to the best of their knowledge.

Employee Access and Rebuttal

The proposed rule allows the driver to submit a written rebuttal to the previous employer when agreement cannot be reached on whether information provided to the prospective employer is erroneous. According to commenters, while the SNPRM is clear on the responsibilities of the driver and the previous employer with regard to the rebuttal, the proposal is silent on the prospective employer's responsibility when faced with conflicting information. PTSA requests “that this provision be clarified so that prospective employers fully understand their responsibilities (if in fact there are any) when faced with conflicting information relating to driver safety performance history.”

Two commenters disagree with the requirement of allowing a prospective driver an opportunity to refute investigative information, citing a large burden on small businesses and slowing the hiring process with no significant benefit. Several commenters think that the driver should only be allowed to access the information if employment is denied. For example, Qwest—

* * * proposes that access to this information be provided only if employment is denied by the prospective employer based solely on the investigative information. This will allow drivers who have been denied employment an opportunity to rebut potentially inaccurate information. It will also decrease the administrative burden on employers.

Further, ATA states that an applicant's right to review information provided by previous employers should only address those persons who are rejected for employment because of the information received. Hired drivers have the ability to review and access their personnel files, making a regulation for such drivers unnecessary. TCA agrees and states,

The costs that such an across-the-board requirement would impose on carriers would be significant and, in the absence of a dispute over the accuracy of the information, seems entirely unnecessary and unjustified. FMCSA's final rule should only extend the right of a driver to receive the information from the prospective employer in the event that the driver is denied employment based, in whole or in part, on the information provided by a past employer.

The IBT, however, agrees with the provision that the driver should be allowed, upon request, to see his or her records obtained from previous employers. In addition, the IBT questions the other commenters' assertion that the cost of providing records to drivers would be burdensome. The IBT claims “that allowing drivers to view the information provided whether they are denied employment or not may be more efficient and result in saved costs as it will allow drivers to correct or rebut information sooner, without having to wait until they are denied jobs based on the information.”

Finally, OOIDA believes that the rebuttal process leaves the driver in a distinct disadvantage because a driver can only correct his or her record during the hiring process while the carrier can make changes to the driver's record at any time. OOIDA suggests that a driver have a right of rebuttal or correction any time a carrier makes a change to the driver's record.

FMCSA Response:

Congress, in the HazMat Act, requires that the previous employer provide driver safety performance history information to the prospective motor carrier employer. TEA-21 requires that all drivers have the right to a rebuttal, and that the previous employers' information may be made available to the prospective motor carrier's insurance provider. TEA-21 also requires that provisions implementing these requirements be added to § 391.23 dealing with investigations and inquiries required as part of the hiring process.

There are no requirements in the HazMat Act, TEA-21, or existing regulations regarding what a prospective employer is required to do with previous employer information. They are similarly silent regarding what to do with driver rebuttals that presumably will conflict with the previous employer information.

TEA-21, however, provides the insurer of the motor carrier requesting the data with the same limited liability as the prospective motor carrier requesting the data. FMCSA believes that by also granting insurers limited liability to gain access to the information (the final rule excludes the alcohol and controlled substances information), Congress intended for business decisions between the prospective motor carrier and the insurance provider to function as a mechanism by which this data will be evaluated. FMCSA believes there is motivation for the carrier and insurer to make good sound judgments of the relative risk of prospective drivers. Those judgments will now be based on better documentation about the driver's past safety performance history.

FMCSA believes the final rule must allow all drivers the right to submit a rebuttal, as specified in TEA-21. The request by OOIDA to allow the driver a rebuttal right at any time a motor carrier makes an entry to the driver's record is not required by the HazMat Act or TEA-21, and would be intrusive on the operating practices of motor carriers.

Appeal Process (§ 391.23(i) and (j))

Commenters express concern that the appeal process would inhibit prospective employers from hiring a driver. For example, TCA opposes FMCSA's proposed appeal process. A driver's dispute over information provided by a past employer, would require the prospective employer to delay making its hiring decision until the dispute has been resolved or the driver provides his or her rebuttal. TCA believes the impact that such a mandatory requirement would have on carriers [in the truckload sector of the industry] would be extremely impractical from an operational standpoint and also unduly burdensome and costly. TCA states, on the other hand, “* * * FMCSA's decision not to mandate such a delay in hiring decisions would have a minimal impact on drivers, since the dispute resolution process should enable the driver to cure the inaccuracy in a reasonably timely fashion and thereby limit any denial of work based on the disputed information * * *”

The IBT, however, disagrees with TCA's position. The IBT does not think it would be proper for the FMCSA to issue a regulation explicitly permitting a prospective employer to make a decision not to hire a driver before the process is complete.

FMCSA Response:

There is no requirement for the motor carrier to delay putting the driver to work pending the appeal process. The proposal in the SNPRM was that the investigations “ * * * must be completed within 30 days of the date the driver's employment begins.” FMCSA has modified § 391.23(c) in the final rule to make it clearer that the employer is allowed to put the driver to work for up to 30 days without having completed the required safety performance history background investigation.

FMCSA desires to keep the new requirement for safety performance history § 391.23 as close as possible to current requirements so that the provisions of this rule are consistent with existing requirements. The requirement is that the inquiries and investigations must be performed and information received within 30 days or the motor carrier must not allow the driver to continue operating a CMV. In order to keep that requirement as it is, the additional new times added by this rule for completing the driver appeal process are defined as being outside of the 30 days allowed for obtaining the initial safety background information. For example, a motor carrier hires a driver and on the 29th day from the start of employment, the hiring motor carrier receives a response from a previous employer that contains accident data. If the driver requests a copy of that report from the prospective (hiring) employer, and then decides to request correction or to rebut it, the hiring motor carrier is not required by these regulations to prevent the driver from operating a CMV for the new (prospective) employer while the driver is exercising his or her rights to review, correct or rebut the information provided.

Access to Data

Insurer Access to Data (§§ 391.23 (h) and 391.53(a)(1))

The Daily Underwriters of America thinks that the regulation should be expanded to include insurers of commercial autos. It argues that “Allowing the insurance company access to the same information would enhance the decision making process and offer another professional opinion on the safety risk presented by each driver.”

The TCA and ATA are opposed to allowing insurers of motor carriers access to safety performance history information. TCA argues that the provision will effectively give insurers the implicit right to direct the hiring decisions of motor carriers and may expose carriers to liability for adverse hiring decisions.

ATA points out that part 40 allows the release of alcohol and controlled substance information to anyone named on the driver's release authorization. ATA states that “ * * * § 391.53(a)(1), as proposed, would be inconsistent with § 40.25.”

FMCSA Response:

In regard to the Daily Underwriters of America request to expand this rule to include commercial autos, the FMCSA notes it only has authority to regulate commercial motor vehicles as defined in § 390.5. Unless the autos are carrying placardable amounts of hazardous materials (thus requiring a commercial driver license (CDL) to operate them) they are not CMVs. Additionally, in part 391 FMCSA only has authority over motor carriers operating in interstate commerce. Thus, unless the commercial autos are being operated by a motor carrier in interstate commerce carrying placardable amounts of hazardous materials, FMCSA has no jurisdiction over such autos even if used commercially, such as in sales fleets.

In regard to TCA and ATA not wanting to release accident data to their insurers, FMCSA notes that Congress specified in TEA-21 that the motor carrier's insurer could have access to the safety performance history. This is one of the mechanisms by which the safety performance history data is made part of the hiring decision process.

In regard to ATA's question about whether the proposed § 391.53(a)(1) is inconsistent with § 40.25, FMCSA believes the reference should more accurately be to § 40.321. FMCSA further notes that the regulations in § 391.23 apply to what a motor carrier can do. Section 391.53(a)(1) says the prospective motor carrier cannot give the alcohol and controlled substances information to its insurer. Departmental policy in part 40 seeks to protect the privacy rights of drivers, and does not want alcohol and controlled substances information released for purposes other than intended, namely to keep drivers with positive tests from operating CMVs until they have completed the process of return-to-duty status. There is no need for insurers to have access to this data, because prospective employers are prohibited from allowing such drivers to operate CMVs.

However, as ATA points out, if a driver wishes to give authorization for their alcohol and controlled substance data to be released by the previous employer to the insurer of the prospective motor carrier, they are free to do so. However, there is no regulatory requirement for them to do so.

Access to and Use of Driver Investigation History File (§ 391.53(a))

The SNPRM contained a provision that restricts access to the Driver Investigation History file to the hiring decision process and to those persons involved. Con-Way and the ATA oppose this provision. Both commenters cite the burden of maintaining two files—a Driver Investigation History file, which can only be accessed by those involved in the hiring process, and a second Driver Qualification file with the rest of an employee's information. Both commenters recommend that the provision be amended to permit storage of all of an employee's information in one file. ATA also argues that management personnel of a motor carrier should have the right to review the information in a driver's file for any valid reason whether or not they were involved in the hiring process.

RIPA seeks guidance with regard to the agency's interpretation of the term “controlled access” as it is used in § 391.53. In this section, the proposed rule states that the Driver Investigation History file “must be maintained in a secure location with controlled access.”

FMCSA Response:

FMCSA does not believe it has any latitude to permit the investigation records required by the rule to be mingled with the inquiry records, nor to allow the investigation information to be used for any other purpose, even for FMCSA required reviews, such as the annual review required by § 391.25.

TEA-21, as codified at 49 U.S.C. 508(b)(1)(B), requires the prospective motor carrier to “* * * protect the records from disclosure to any person not directly involved in deciding whether to hire that individual.” In addition, 49 U.S.C. 508(b)(1)(C) requires that “the motor carrier has used those records only to assess the safety performance of the individual who is the subject of those records in deciding whether to hire that individual.”

In addition to the Congressional requirement at 49 U.S.C. 508(b)(1)(C), as it relates to Con-Way's and ATA's concern about the burden of maintaining an extra file, FMCSA notes that this file is customarily maintained separately for alcohol and controlled substance results. The proposal at § 391.53 was developed based on this common practice of motor carriers maintaining such files separately in order to be able to withstand driver court challenges when asked how they can prove they met the requirements of part 40 for secure and controlled access. Thus, FMCSA proposed that the Driver Investigation History file could be combined with the already separately maintained alcohol and controlled substances response file in order to minimize any additional costs imposed on motor carriers.

The terms secure and controlled-access are adopted as a conforming amendment from part 40, which has used these terms for some time.

National Database or Access to FMCSA Data Files

Instead of requesting driver information from previous employers, nine commenters advocate a national or centralized database to include information, such as driver accidents, alcohol and controlled substances test results, safety related medical conditions, citations, and out of service inspections. The arguments presented for such a database include better tracking of drivers, less expensive and easier access to the information, and less burden on the motor carriers. For example, Consumer Energy explains that a database system could eliminate the paperwork burden, limit the possibility of a driver's falsification of employment, failure to provide documentation of previous employers, and speed up the hiring process. Consumer Energy recommends modeling a database after the Nuclear Regulatory Commission's Personnel Access Data System (PADS).

J.B Hunt concurs that a database would lessen the burden to motor carriers from the thousands of requests for information gathered in the hiring process. This commenter suggests adopting a national program similar to the California Pull-Notice Program where motor carriers register new drivers in a database of safety performance indicators, such as accidents, alcohol and controlled substances test failures, and traffic convictions. The administrator of the database notifies employing motor carriers when a driver's record changes, and drivers would have access to their records to make rebuttals. The American Bus Association agrees that such a database “would solve the problem that occurs when a driver applicant ‘forgets’ to list a previous employer to avoid scrutiny.”

TCA, ATA, and DAC Services all urge FMCSA to allow motor carriers access to driver information in the Motor Carrier Management Information System (MCMIS) database. These commenters argue that by giving access to this data, motor carriers would gain access to more information about a driver than under this rule. ATA urges FMCSA

to immediately take the necessary action to allow prospective motor carriers to access the MCMIS database, on a real-time basis, for the purpose of obtaining driver-applicants accident data, as well as other important roadside inspection safety compliance and performance data.

Similarly, the Commercial Vehicle Safety Alliance (CVSA) states that roadside safety inspection reports include information that would allow prospective employers the opportunity to analyze the driving habits of prospective employees by reviewing their FMCSR violation histories and that of the vehicles they operated. Access to this information might be accomplished by providing access to driver specific information via SAFER [Safety And Fitness Electronic Records] and/or other databases. Access to this driver information would provide motor carriers a more comprehensive rendering on which to base their hiring decisions. While the CVSA strongly recommends motor carrier access to driver specific roadside safety inspection information, it also recognizes the fiscal implication at both the Federal and State levels. For this reason the CVSA requests that FMCSA be cognizant and sensitive to the limited resources available in regard to proposed upgrades to information systems.

The IBT strongly opposes making individual driver records publicly available via MCMIS. IBT is concerned about maintaining the confidentiality of the information and believes the rule as proposed implements the necessary precautions to protect the confidentiality of this information by making it only available to individuals involved in the hiring process.

FMCSA Response:

The FMCSA recognizes the interests demonstrated by the suggestions to provide the safety performance history for new drivers using national databases rather than investigations to previous employers. For the benefit of those interested, FMCSA provides this summary of related activities in each of the suggested areas.

FMCSA has been building the MCMIS database of motor carrier information for many years. However, the agency is also aware that there are accompanying cost and individual privacy issues. As the commenters indicate, the MCMIS contains information on accidents and out-of-service orders, and is used by

FMCSA for various purposes, including prioritizing motor carriers to receive carrier compliance reviews. In any event, access to that MCMIS database or the development of another database was not proposed in the SNPRM, and is outside the scope of this rulemaking.

Regarding an alcohol and controlled substances database, section 226 of the Motor Carrier Safety Improvement Act of 1999 (MCSIA) (Pub. L. 106-159, 13 Stat. 1748 (December 9, 1999)) requires a report to Congress on the feasibility and merits of an alcohol and controlled substance database capability. Work on that report is progressing. When the report is released to the public after being sent to Congress, it will be placed in docket FMCSA-2001-9664. The long title of the report is “A Report to Congress On the Feasibility and Merits of Reporting Verified Positive Federal Controlled Substance Test Results to the States and Requiring FMCSA-Regulated Employers to Query the State Databases Before Hiring a Commercial Driver's License (CDL) Holder.”

Regarding medical certification information as part of the CDL process, section 215 of MCSIA requires a rulemaking to provide medical certification information as part of the CDL licensing process. Work on that rulemaking effort is progressing as well.

There were studies related to the possible value of a national database of citations. However, there is no proposal or funding to proceed with such an effort. It appears far more cost effective to instead focus on using the data about traffic convictions available from the Commercial Driver License Information System (CDLIS), and also available to motor carriers from the Motor Vehicle Record (MVR) obtained from the licensing State, and already required by § 391.23(b). For CDL drivers, the FMCSA is working with the States to improve the quality of this data in accordance with section 221 of MCSIA.

Rejection Rate and Cost/Benefits

Several commenters addressed FMCSA's rejection rate in its SNPRM cost/benefit analysis. Two commenters take issue with the FMCSA use of a 4 percent rejection rate of applicants in the SNPRM regulatory evaluation. These commenters state that the actual rate is much higher and that therefore the FMCSA underestimated the cost of the proposed rule. Con-Way states that the rejection rate is closer to 80 percent, and that therefore the cost would be $1.52 billion, not $76 million as stated in the SNPRM. Con-Way states,

* * * there is no doubt that the proposal will result in lots of paper and administration. Not only employers but also potential applicants would be impacted, as applicants may not be hired as quickly, creating more hardship and loss of income for job seekers.

Con-Way further states that the analysis assumes, with no data to support the assumptions, that there may be a 0 percent, 10 percent, 25 percent or 50 percent reduction in accidents (what is identified as “deterrence effect”). In the opinion of Con-Way, the fact that there is a wide range in accident reductions included in the sensitivity analysis implies there is little data to support a more definitive statement of benefits. Con-Way concludes that the benefit analysis is inadequate, flawed, and based on little data and many assumptions.

The ATA contacted several motor carriers of varying sizes, presumably among their membership, to get a better estimate of the rejection rate of CMV driver applicants. ATA submitted the results of its inquiries to the docket. ATA states that the information indicates the actual driver employment rejection rate may be considerably higher than the four per cent used by FMCSA in its cost/benefit analysis. The table contained in ATA's document 83 in this docket gives the results of the ATA inquiries. It also gives a weighted mean rejection rate of 80.1 percent. ATA suggests that FMCSA needs to further investigate its rejection rate assumption and reexamine its cost/benefit analysis based on the new information.

Three commenters assert that associated and administrative costs will significantly exceed FMCSA's estimates and will cause significant economic burden on the industry. For example, AT&T estimates that its efforts to comply with these regulatory changes would result in very costly modifications to an established, well-functioning system, which would take considerable time. In AT&T's opinion, the FMCSA did not prove that the benefit of the SNPRM's proposal would outweigh these costs.

FMCSA Response:

FMCSA stated in the preamble to the SNPRM, with a reference to the supporting study in the docket, that it was aware of the CDL Effectiveness focus groups study involving motor carrier safety directors who stated that there is a substantial rejection rate of CMV driver applicants. A copy of the relevant portions of that publication is included in the docket as document 41. The preamble also stated that because of limited information, that observation was not included in the regulatory evaluation. Additionally, the SNPRM requested that more information about rejection rates be provided in comments to the docket. Based on the additional information received, FMCSA has revised both the paperwork burden estimates and the regulatory evaluation, using a higher rejection rate, and thus yielding higher burden and cost. These are discussed in detail in the “Paperwork Reduction Act” and “Regulatory Evaluation: Summary of Benefits and Costs” sections later in this preamble.

Fees (Previous Employers or Third Parties Charge)

Of those commenters that addressed this issue, some do not want previous employers to be allowed to charge a fee to offset their costs of providing safety background information about their previous employees. Safe Fleet asserts that all motor carriers are both previous and new employers, so all should share the burden and help out one another with this cost. Two commenters suggest that, if previous employers can require a payment for the required safety performance history information, it should be a standard amount determined by the FMCSA. ATA specifically urges FMCSA to make a decision on whether charging a fee for safety performance history information is allowed or prohibited.

FMCSA Response:

There are two distinct requirements under § 391.23, namely for “Investigations” and “Inquiries.” Under “Inquiries” motor carriers are required to obtain the driving record from all States where the driver held a license or permit in the last three years. All States commercially sell this information as the Motor Vehicle Record (MVR) to authorized users. Payment of the fee set by each State is a condition of the MVR being released by the State. These fees are set by State government agencies for access to public records. FMCSA has no part in setting these fees.

Under the “Investigations” requirements of the § 391.23 “Investigations and inquiries,” prospective motor carriers continue to be required to request investigatory information from previous employers, and the minimum data elements are now defined by this rulemaking. In addition, previous employers are now required by this rule to provide the specified minimum information.

Further, as pointed out in the SNPRM, it is an established practice for some motor carriers to require a driver to have driving experience before they will hire the driver. (See document 41 in this docket.) This means some carriers are hiring the inexperienced new entrant drivers, who systematically leave their employ to go to work for carriers

requiring some type of driving experience.

Those carriers hiring inexperienced new entrant drivers will systematically be subject to the costs of providing the safety performance history data, but will not equally get the advantages of this data from other previous employers. The Regulatory Evaluation section presents two possible scenarios, each indicating that some motor carriers hire drivers with no driving experience. Under scenario 1, the percent of drivers hired from outside the industry would be over 25 percent new entrants. Under Scenario 2, the percent of the drivers hired from outside the industry would be over 34 percent new entrants.

FMCSA points out that our regulations do not prevent previous employers from charging a fee for this information. If such fees are charged to offset carriers' cost of providing the required safety performance data, FMCSA encourages development of a market that establishes reasonable, predictable fees. Although FMCSA agrees any fees should be reasonable and predictable, somewhat like the State fees for the MVRs, FMCSA does not believe it has the authority to set fees for release of former driver safety performance history information to prospective employers.

However, FMCSA believes it has the authority to require previous employers to release the minimum data, for alcohol and controlled substances specified in part 382 and for accidents as defined in § 390.5, to the investigating prospective motor carrier within the time period required at § 391.23(g)(1), even if the previous employer has to initially absorb the costs for maintaining and providing this information,

i.e.

, extend credit. Previous employers may not condition release of this required investigative safety performance history information on first receiving payment of a fee by the prospective motor carrier. A copy of a corresponding FMCSA interpretation to this effect in the context of alcohol and controlled substance information was placed in the docket as document 55. This does not apply to accident data not defined by FMCSA and retained either pursuant to § 390.15(b)(2) or because the motor carrier chooses to maintain more detailed minor accident information for their own purposes.

FMCSA does not believe it has a regulatory role in establishing reasonable, predictable fees for the safety performance history information previous employers are required to provide once this rule is implemented. What such fees may be, and how they are collected, should be determined in a free, open, efficient, competitive marketplace.

Miscellaneous

Relation of Hours of Service to Safety Performance

The ATA believes that the regulatory evaluation discussion in the SNPRM did not provide the evidence showing the claimed positive relationship between hours of service violations resulting in out-of-service orders and future safety performance. ATA urges FMCSA to place appropriate proof of this claimed relationship in the public docket.

AHAS strongly disagrees with FMCSA's decision to accept the SBA request to delete the requirement for previous employers to disclose records evidencing previous driver hours of service (HOS) violations resulting in out-of-service orders. AHAS is not persuaded that the agency's rationale for excising this aspect of the proposed rule has any merit. AHAS challenges that a “failure to require employers to provide such information on driver HOS violations to any prospective new employer of that driver arguably abets ongoing HOS violations by refusing to stop their concealment from subsequent employers.”

FMCSA Response:

With regard to ATA's comment, the information referred to in the SNPRM was developed in a study for FMCSA. A preliminary report on this study was presented at the 2002 annual Transportation Research Board meeting in Washington, DC. A copy of a current report on that analysis is included in the docket as document 85.

More accurately, the SNPRM discussion refers to a positive and significant relationship between a measure developed by that study of traffic convictions and driver out-of-service (OOS) orders, which are largely from hours of service violations or record of duty (logbook/timecard) violations. Drivers receiving more traffic convictions for moving violations, particularly those defined as CDL serious or disqualifying convictions, are identified by the required Commercial Driver License Information System (CDLIS) recordkeeping functions.

Depending on the traffic law conviction received and the number of such convictions, the driver may be identified by the State driver licensing agency as a safety risk requiring driver improvement actions, such as suspension or revocation, in accordance with the CDL program regulations. It is an underlying premise of the CDL program that drivers with such conviction patterns are considered higher risk for being involved in accidents, and should be removed from driving CMVs, either temporarily or permanently.

The study found a significant, positive, linear correlation between the proposed carrier-driver conviction measure with OOS orders and carrier power unit crash rate. This implies that if the driver OOS information were available to prospective employers, it could also be useful in predicting future safety problems, including accidents. The relationship of driver OOS orders and future crash involvement is being further researched.

In regard to the AHAS comments, as stated in the SNPRM, FMCSA continues to believe “* * * requiring this information collection and establishing a motor carrier recording requirement would be particularly burdensome to small entities * * *” “* * * because this information is only systematically reported to FMCSA as part of the Motor Carrier Safety Assistance Program (MCSAP) enforcement activities of the States.” FMCSA provides the following additional details why this would be burdensome on small entities, as well as not meet the three-year reporting requirement of the HazMat Act.

Motor carriers are not currently required by the FMCSRs to maintain a three-year record for hours of service violations resulting in an out-of-service order. Requiring motor carriers to maintain and provide three-years of such information would necessitate creating a new recordkeeping requirement for motor carriers to obtain and maintain this data, and creation of such a process could be problematic.

The following things are currently required. Drivers are required by § 395.13(d)(3) to notify their employer of having received a driver out-of-service order for an hours-of-service violation. Motor carriers are then required by § 395.8(k)(1) to retain such data as a supporting document for 6-months. Under § 396.9(d)(3), motor carriers are required to retain a copy of inspection reports they receive from the driver, some of which could include information about a driver out-of-service order, for 1-year.

Because of the known problem with drivers not providing all such information to their motor carrier, FMCSA created a capability for motor carriers to obtain a carrier profile from FMCSA for a fee. If there is information on that profile about a driver-out-of-service order the motor carrier did not receive from the driver, the motor carrier may either contact the State MCSAP agency that issued the report, or request a facsimile copy of that

information from the FMCSA for their records for a fee.

There is no requirement for the motor carrier to regularly obtain a carrier profile in order to search for possible missing driver OOS orders. However, if the carrier requests a profile from FMCSA, we require the carrier to pay a fee to the agency for both the profile and any missing facsimile data. This means there is no reliable, institutionalized process for motor carriers to be notified of all such orders received by their drivers. Even if the information were obtained, the longest the motor carrier is required to keep reports on file is 12 months for inspections.

The more reliable reporting process in place is the States' MCSAP agency reporting this data to FMCSA, using SAFETYNET

2

to place it in MCMIS. There is no requirement for the States to provide this information to motor carriers.

2

SAFETYNET is a database management system that allows entry, access, analysis, and reporting of data from driver/vehicle inspections, crashes, compliance reviews, assignments, and complaints. It is operated at State safety agencies and Federal Divisions and includes links to SAFER and MCMIS. It is an Oracle based client-server system.

Broader Applicability (Non Safety Sensitive Functions)

The proposed rule requires that prospective employers investigate alcohol and controlled substance testing information for prospective drivers previously employed in safety-sensitive positions. Qwest supports this requirement. However, Qwest believes the language in § 391.23(e) should be modified to state that all prospective driver alcohol and controlled substance testing information should be investigated, not just drivers that will perform safety-sensitive functions for the prospective employer.

FMCSA Response:

The requirements of part 382 only apply to persons covered by part 383 (CDL) requirements. Section 391.23(e) adds conforming amendments for the requirements of part 382 to those of part 391 as required by the HazMat Act. It is possible an applicant for a driving job that does not require a CDL may have previously driven vehicles requiring a CDL and failed an alcohol or controlled substance required test.

The specification at § 391.23(e) applies to all drivers who held a safety sensitive job in the previous 3 years. For motor carriers, this is a CDL driver. If they are driving a CMV, whether they will perform a safety sensitive job for the prospective employer does not matter. The prospective employer is required for such drivers to request the alcohol and controlled substances information. The requirement at 49 CFR 390.3(d) states an employer may specify more stringent requirements as a condition of employment. However, if during the previous three-year period the driver did not hold a safety sensitive job subject to the requirements of part 40 or part 382, there is no requirement for the previous employer to have applied the testing requirements required for safety sensitive jobs. FMCSA does not have the authority to require drivers not performing safety sensitive functions to be subject to the requirements of parts 40 and 382.

Liability Limitation (§ 391.23 (l))

All commenters support the provision that limits liability when previous employers are furnishing driver records. Two commenters raise questions about whether immunity will apply to State courts and whether this provision will prevent a driver who was not hired from suing. Three commenters have specific recommendations regarding the language of the provisions. First, Con-Way proposes that protections should apply unless a person knowingly and intentionally furnishes false information. Second, ATA urges the FMCSA to delete from § 391.23(l)(2) the second phrase “* * * or who are not in compliance with the procedures specified for these investigations * * *” by placing a period after the word “information” and striking the balance of the sentence in order to strengthen the employer protections. However, the IBT disagrees with ATA and claims that this suggestion would immunize employers from liability even if they do not comply with the regulations. Finally, Qwest recommends protections for good faith compliance.

However, OOIDA believes that motor carriers' fear of liability is exaggerated. OOIDA states

The proposed rule emphasizes carriers' supposed fear of their exposure to legal liability for following the rules. OOIDA finds this fear suspect and vastly overstated. OOIDA does not understand why any carrier would express any fear of liability unless they know or believe that the information they are using is false, or that they are engaged in the improper use of such information. Furthermore, OOIDA is unaware of any litigation brought against a carrier for the creation of false information in a driver's safety performance history or the misuse of such information. FMCSA presents no factual record to back up this fear. From OOIDA members' experience, drivers' careers are much more likely to be damaged by carrier misuse of background information than carriers are at risk for litigation under the rules.

In addition, OOIDA expresses concern that motor carriers knowingly passing along false information received from another carrier would be shielded from legal liability.

FMCSA Response:

The only basis provided under the statute and this regulation for a driver to have standing in court is to allege the previous employer knowingly provided false information. If the driver proves false information was provided by the previous employer, the liability limitation does not apply and the court can determine and assess a penalty on the previous employer. The preemption language in TEA-21 at section 4014(c) (

see

document 39 in this docket) explicitly refers to State and local law and regulations that create liability associated with providing or using safety performance history investigative information.

FMCSA concurs with the IBT comment to the docket that the HazMat Act does not provide discretion for partial or good faith compliance with the procedures established by this final rule. Motor carriers must comply with the regulations.

Implementation

The previous topics and their discussions indicate many commenters are concerned about a number of practical difficulties that must be dealt with to effectively implement this rule. Additionally the Small Business Administration (SBA) submission to the docket in response to the NPRM, document 26, expresses concern that the implementation needs of the large number of small businesses should be given more explicit attention. Two issues SBA explicitly addressed were the phasing in of accident data retention and providing compliance assistance.

FMCSA Response:

The issue of phasing in accident data retention is addressed separately, and FMCSA is doing that. However, it only addresses that specific aspect of implementation that is impossible to accomplish until enough time has passed to allow accumulation of three years of data.

An additional issue is allowing a reasonable enough time for all parties to effectively implement the newly required processes for data retention, investigating, reporting, using data obtained as part of the hiring decision process, and managing the driver rights processes. FMCSA determined that six months after the effective date of this rule is a reasonable balance between motor carrier implementation and safety requirements for all impacted parties to implement the process capabilities required to operate in compliance with

this rule. This will also allow the industry together with FMCSA to develop and make available various non-mandatory guidance materials.

Rulemaking Analyses and Notices

Privacy Act

Anyone is able to search the electronic form of all comments received into 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.) You may review DOT's complete Privacy Act Statement in the

Federal Register

published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit

http://dms.dot.gov.

Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures

The FMCSA determined this action is a significant regulatory action within the meaning of Executive Order 12866, and is significant within the meaning of Department of Transportation regulatory policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034, February 26, 1979), because the subject of requirements for background checks of prospective driver safety performance history information generated considerable public and congressional interest. FMCSA estimates the economic impact of this rule will not exceed the annual $100 million threshold for economic significance. The Office of Management and Budget (OMB) reviewed the final rule, Paperwork Reduction Act submission, the regulatory evaluation, and the regulatory flexibility analysis associated with this action.

Under a following section of this rule entitled “Regulatory Evaluation: Summary of Benefits and Costs,” the agency estimates the first-year costs to implement this rule will amount to approximately $15 million. Total discounted costs over the 10-year analysis period (2004-2013) will be $113 million, using a discount rate of seven percent. All these costs are associated with the statutorily mandated requirements of section 114 of the Hazmat Act and section 4014 of TEA-21. First-year benefits associated with this rule are estimated at $7 million. Total discounted direct benefits over the 10-year analysis period (2004-2013) are estimated at $107 million. Total discounted net benefits from implementing this rule are estimated at −$6 million (without consideration of a deterrence effect) or as high as $47 million (with consideration of a deterrence effect).

A key assumption used in the above analysis involved the percentage of newly available accidents for which prospective employers would be able to determine, or infer, that the truck driver was at fault and therefore deny the driver employment as a result. In the analysis performed for the SNPRM, now called scenario 1, it was estimated that 30% of the drivers are at fault, and from those a total of 10% of driver applicants would be denied employment. In this final rule it is estimated from preliminary data from the Large Truck Crash Causation Study that 38.64% of the drivers are at fault, and from those in scenario 1 a total of 12.88% of driver applicants would be denied employment. Both the 10% in the SNPRM and the 12.88% in this rule are derived as one-third of the vehicle accidents involving a large truck where the truck driver is estimated to be at fault.

For purposes of sensitivity analysis perspective, FMCSA also presents a scenario 2 in the regulatory analysis where we assume the full 38.64 percent of drivers at fault would be denied employment by prospective employers because the employer would be able to determine, or infer, from the data that the CMV driver was at fault in the accident, and would choose to deny employment to all. This new, more aggressive assumption is presented in an effort to provide readers with the range of possible impacts, in light of the inherent uncertainty regarding how much new accident data will become available to prospective employers and exactly how they will use this data to make hiring decisions. However, the more aggressive scenario 2 estimates are only presented for sensitivity analysis perspective. FMCSA continues to cite the original (now scenario 1) as the primary analysis performed for this rule.

Under the scenario 2 assumption that prospective employers will be able to accurately determine, or infer, fault in all the accident data involving drivers applying for positions, and that all the drivers who were at fault would be denied employment as CMV drivers for on average six-months, the costs would remain the same, $113 million. But, the first year benefits could be as high as $24 million, and the total discounted 10-year benefits could be as high as $406 million. This means the total discounted net benefits under this aggressive scenario 2 could be as high as $294 million over the 10-year analysis period (2004-2013).

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement and Fairness Act (SBREFA), requires Federal agencies to analyze the impact of rulemakings on small entities, unless the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. In response to SBA's request for more information on the economic impact of this final rule upon small entities, and the determination that this is considered a significant rulemaking proposal, the agency prepared a final regulatory evaluation and the following Regulatory Flexibility Analysis.

(1)

A description of the reasons why action by the agency is being considered.

Motor carriers must hire a large number of drivers each year to operate large commercial motor vehicles on the nation's roads and highways. These drivers are responsible for safe, secure and reliable operation of these vehicles. Public concern regarding the safety of commercial motor vehicles and their operators has heightened awareness of the almost non-existent investigative driver safety performance history information made available to prospective motor carrier employers to assist in making hiring decisions. If prospective employers have access to more information about a driver's safety performance history, it will enable employers to make more informed decisions regarding the relative safety risk of applicants to operate CMVs.

With enactment of section 114 of the HazMat Act, Congress directed revision of the FMCSRs to specify the minimum driver safety performance information a prospective employer must investigate from previous employers, and further directed that previous employers now must provide the specified information. Additionally, the HazMat Act sets a 30-day time limit for previous employers to respond to the investigations, and provides the driver with “* * * a reasonable opportunity to review and comment on the information” provided by previous employers to the prospective employer.

In response to industry concerns about the legal liability which could arise from providing information about driver safety performance history, Congress determined that the societal importance of this information is sufficient to grant limited liability to motor carriers by preempting State and local laws and regulations creating liability. This is carried out in section 4014 of TEA-21. The liability limitation applies to prospective and previous

employers, their agents, and their insurance providers from defamation suits when investigating, using or providing accurate information about safety performance histories of their drivers. The right of drivers to review such employer investigative records, and to have them corrected or include a rebuttal from the driver, is made statutory. The Secretary is directed to develop procedures for implementing these new requirements as part of the changes to § 391.23 previously mandated by section 114 of the HazMat Act.

(2)

A succinct statement of the objectives of, and legal basis for, the rule.

The legal bases for this final rule are the Congressional directives contained in section 114 of the HazMat Act and section 4014 of TEA-21. Congressional direction is to ensure prospective motor carriers have access to increased information about the safety performance history of driver applicants, including access to specified investigative information from the driver's previous employers for the preceding three years.

Regulations at §§ 391.23(a)(2) and (c) currently require prospective employers to investigate a driver's employment record from previous employers. The regulations do not specify what information prospective employers must investigate, nor do they require previous employers to respond to investigations received from prospective employers. Comments to the docket for this rulemaking, such as those from Dart and Fleetline, Food Distributors International, Interstate Truckload Carriers Conference, American Movers Conference, United Motor Coach Association, and the National Private Truck Council state that many previous employers are either not responding, or not providing any information other than verification of employment and dates.

Further, comments to docket FMCSA-2001-9664 state that many previous employing motor carriers either do not respond to investigations for alcohol and controlled substances information, or do so belatedly, making the data of questionable value in the hiring decisions. Docket 9664 contains the

Federal Register

notice and numerous comments regarding the requirement of section 226 of the MCSIA for a Report to Congress on the possibility of requiring employers to report positive results or refusals to be tested for controlled substances. A copy of section 226 of MCSIA is included in the docket for this rulemaking as document 40.

The objective of this final rulemaking is to improve the quantity and quality of investigations made to previous employers, especially the quantity, quality and timeliness of driver safety performance information provided to prospective employers. This should foster more informed hiring decisions about the safety risks of potential new driver employees, while affording drivers the opportunity to review, correct or rebut the accuracy of information provided by previous employers.

This final rule specifies minimum information that must be investigated, and specifies processes to facilitate this information exchange, so as to minimize the reporting burden, including establishing the limit on potential liability of employers, their agents, and insurance providers from lawsuits.

(3)

A description of, and where feasible, an estimate of the number of small entities to which the rule will apply.

This rule will apply to all motor carrier employers regulated by the FMCSRs whose driver employees apply to work for another motor carrier operating CMVs in interstate commerce. This includes small motor carriers, many of which are in numerous industries covered by the FMCSRs because they operate their own private commercial motor vehicles. Examples include drivers who operate CMVs in industrial categories, such as: bakeries, petroleum refiners, retailers, farmers, bus and truck mechanics, cement masons and concrete finishers, driver/sales workers, electricians, heating, air conditioning and refrigeration mechanics and installers, highway maintenance workers, operating engineers and other construction equipment operators, painters, construction and maintenance workers, plumbers, pipefitters and steamfitters, refuse and recyclable material collectors, roofers, sheet metal workers, telecommunications equipment installers and repairers, welders, cutters, solderers, and brazers.

The SBA regulations at 13 CFR 121 specify Federal agencies should analyze the impact of proposed and final rules on small businesses using the SBA Small Business Size Standards. Where SBA's standards do not appropriately reflect the effects of a specific regulatory proposal, agencies may develop more relevant size determinants for rulemaking.

The regulatory evaluation below estimates the number of driver hiring decisions affected by this final rule at approximately 403,000 annually. This estimate is a function of three components, including: (1) Annual driver turnover within the industry, (2) annual employment growth within the industry, and (3) an increase in the number of drivers required to fill vacancies left by those denied employment when this background information becomes available to prospective employers.

It is difficult to determine exactly how many existing motor carriers will be affected by this final rule, since it is not known year-to-year how many employers on average hire drivers. However, it is known from the MCMIS that there are more than 500,000 active motor carriers currently operating in interstate commerce in the United States. This includes both for-hire and private motor carriers, but deducts a number of carriers believed not to be currently operating, yet still having files in MCMIS. Data from the 1997 Economic Census (U.S. Census Bureau), Standard Industrial Classification (SIC) Code 4213, “Trucking, Except Local,” indicates that over 90 percent of trucking firms in that SIC code had less than $10 million in annual sales in 1997 (less than $10 million in annual revenues represents the threshold for defining small motor carriers in this analysis).

Because the FMCSA does not have annual sales data on private carriers, we assume the revenue and operational characteristics of the private trucking firms are generally similar to those of the for-hire motor carriers. Using the 90-percent estimate from for-hire motor carriers to identify the small business portion of the existing industry, FMCSA estimates that 450,000 out of the approximately 500,000 total existing motor carriers could be defined as small businesses. Also, we estimated that a net 403,000 hiring decisions will be affected by this final rule annually. These 403,000 net annual hirings within the industry represent 13 percent of the total three million drivers currently estimated in the regulatory evaluation to be employed within the trucking industry. To be conservative, we assumed that 13 percent of existing motor carriers will be filling the 13 percent of driver positions each year. Using 13 percent of existing motor carriers translates to 67,000 out of the 500,000 existing motor carriers that would be prospective motor carriers hiring drivers each year.

We conservatively assumed that these 67,000 hiring employers will bear the full cost of the data retention and reporting processes for the 403,000 drivers to be hired each year. This includes the file searches, duplication, and reporting costs incurred by previous employers for providing the information.

Conversely, if instead we had assumed previous employers would also bear a portion of these costs, and we assumed one previous employer for each driver over the past three years, then we would have had to divide compliance costs by twice the 67,000 hiring carriers,

i.e.

, 134,000 carriers. However, to ensure we do not underestimate the impact to small employers, we have used the 67,000 estimate of hiring employers.

Total discounted compliance costs of this final rule are estimated at $113 million over the 10-year analysis period (2004-2013), resulting in an average discounted annual cost of $11.3 million. If we divide these average annual costs by the 67,000 hiring companies estimated to be hiring drivers within a given year, the result is a total compliance cost of roughly $169 per motor carrier in the first year of this rule's implementation.

Data from the 1997 Economic Census, SIC 4213 (derived from NAICS Categories 484121, 484122, 484210, and 484230) divides trucking firms into 11 revenue categories, beginning with those firms generating less than $100,000 in annual gross revenues and ending with those generating $100 million or more. As stated, “small” trucking firms are defined here as those that generate less than $10 million in annual revenues. The 1997 Economic Census divides these firms into eight specific revenue categories. The annual revenue categories, the number of firms in each, and the average annual revenues of firms in each category are listed below in Table 1.

Table 1.—Average Annual Revenues of Small Trucking Firms (SIC 4213, “Trucking, Except Local”) by Revenue Category

Revenue category ($1,000s)

Number of firms/% of total small firms

Average annual revenues ($1,000s)

Compliance costs ($169), as % of annual revenues

Average pre-tax profit margins, by revenue size

(in percent)

<$100

1,487   (5)

$67

0.25

9.5

$100-$249.9

8,715  (30)

160

0.11

9.5

$250-$499.9

5,687  (19)

356

0.05

9.5

$500-$999.9

4,890  (17)

710

0.02

9.5

$1,000-$2,499.9

4,819  (16)

1,580

0.01

2.8

$2,500-$4,999.9

2,414   (8)

3,490

<0.01

2.9

$5,000-$9,999.9

1,407   (5)

7,000

<0.01

3.5

Total

29,419  (100)

Source:

1997 Economic Census, Sales Size of Firms, NAICS Categories 484121, 484122, 484210, and 484230 aggregated to SIC 4213.

We applied the average annual regulatory compliance costs ($11.3 million) to the number of existing motor carriers in the industry we anticipated will be hiring drivers in a given year (67,000). As seen in the above table, the compliance costs of this final rule per existing motor carrier ($169) represent 0.25 percent (or a little less than

3/10

of one percent) of gross annual revenues of the smallest firms (

i.e.

, those with annual gross revenues less than $100,000). For the second smallest revenue category compliance costs represent 0.11 percent of gross revenues in the first year.

Data obtained from Robert Morris Associates (RMA) in 1999 on pre-tax profit margins of trucking firms in SIC Code 4213 are contained in the right-hand column of the above table. For all firms with less than $1 million in annual revenues, the RMA listed average pre-tax profit margins of 9.5 percent. Since the 1997 Economic Census data had additional revenue categories, FMCSA applied the same profit margins (9.5%) to all firms with annual revenues of less than $1 million.

The data reveal that total discounted 10-year costs to existing motor carriers will reduce, although not eliminate average pre-tax profits for carriers in any of the carrier revenue categories. The smallest revenue category in this table (<$100,000 annual revenues), which represents 5 percent of the firms in the Economic Census table, will experience an average reduction in pre-tax profit margins of 2.6 percent (0.25/9.5 = 2.6%). For the second smallest revenue category ($100-249.9), which represents 30 percent of the small carriers in this motor carrier category, pre-tax profit margins are reduced by about 1.2 percent (0.11/9.5 = 1.2%). For the third smallest revenue category, the annual compliance costs associated with this final rule are expected to reduce these carriers' average pre-tax profit margins by 0.5 percent (0.05/9.5 = 0.5%).

Several things about this data should be noted. The above figures for compliance costs and profit margins by revenue category represent averages of the estimated impact of this rule to small motor carriers. Impacts to particular subgroups of small motor carriers, such as those with annual profits that fall within the lowest quartile of carriers in each revenue category, may be more significant than those at the median. For example, FMCSA is aware that a number of motor carriers go out of business every year. At least some percentage of those likely are for financial reasons.

Recognizing that the RMA data used here is only for firms that applied for commercial bank loans (presumably the more profitable firms in their revenue category in order to qualify for loans) and represents only one to five percent, generally speaking, of those motor carriers identified in the 1997 Economic Census, FMCSA did not feel confident in breaking out the RMA profit margin data into individual quartiles. As such, we have reported the anticipated impacts using an average compliance cost per carrier and average profit margins for carriers in each revenue category.

(4)

A description of the proposed reporting, recordkeeping and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirements and the type of professional skills necessary for preparation of the report.

Reporting.

No new reporting to the Federal government or a State is required. New reporting is required by all DOT regulated employers of the previous three years for alcohol and controlled substances, and all motor carriers for accident information, to prospective motor carrier employers. In response to prospective employees who assert their right to disagree with the

investigative driver safety performance data reported by that previous employer, previous employers are also required either to correct the data per the driver's assertion, or include the driver's rebuttal with their data.

In the case of alcohol and controlled substances, all previous employers or their agents subject to DOT alcohol and controlled substances regulations are required by 49 CFR 40.25(h) to report specified minimum employer investigative safety performance history data for their previous employees to prospective employers upon receiving an investigation.

Data to be provided will include at least the following:

1. Information verifying the driver worked for that employer and the dates of employment.

2. The driver's three-year alcohol and controlled substances history, an increase of one year from the two-year history now required, which will make it the same as the already required three-year retention of previous employer data, and two years less than the five-year retention of positive results or refusals to test.

3. Information indicating whether the driver failed to undertake or complete a rehabilitation referral prescribed by a substance abuse professional within the previous three years, but only if that information is recorded with the responding previous employer. Previous employers will not be required to seek alcohol and controlled substance data they are not already required to retain by part 382.

4. Information indicating whether the driver illegally used alcohol and controlled substances after having completed a rehabilitation referral, but only if recorded with the responding previous employer. Previous employers will not be required to seek alcohol and controlled substances data they are not already required to retain by part 382.

5. Information, only from previous employing motor carriers, indicating whether the driver was involved in any accidents as defined in § 390.15.

Previous employers or their agents for three years after a driver leaves their employ will be required to respond within 30 days to investigations from prospective motor carriers about an applicant and provide at least the minimum information specified in this final rulemaking. This final rule will enhance the ability of FMCSA and its agents to take enforcement action if a previous employer does not record and provide the information required within the specified time.

Motor carriers are already required to respond to alcohol and controlled substances requests under part 382. However, requests for that data can be the last information requested in the screening process. This is because of the requirement for a signed authorization from the driver applicant to release any such data, and in subsectors such as truckload, this generally occurs only for that portion of drivers still under consideration for employment, based on initial screening.

All motor carriers, and all DOT regulated entities for alcohol and controlled substances, for the previous three years, will now be required by conforming language in § 391.23 to provide the specified minimum investigative safety performance history data. That data, minus the alcohol and controlled substances data, will be requested routinely for many driver applicants from all previous employers as part of the initial employment screening process that does not require signed authorization. For those drivers still under consideration for employment, the same previous employers could receive a subsequent second request for the alcohol and controlled substances information.

The 1997 CDL Effectiveness study contained a report of focus group meetings of motor carrier safety directors. (CDL Focus Group Study, November 1996, copy of the Safety Director comments are included in docket as document 41.) It documents that a number of motor carriers require drivers to have obtained previous experience driving a CMV before that motor carrier will hire the driver. This means that employers operating more as employers of entry-level drivers, will be required to systematically provide investigative information, but will not get much benefit of receiving such investigative data from other previous employers. FMCSA estimates this to be 24 percent of the drivers under scenario 1, and 30 percent of the drivers under scenario 2.

Recordkeeping.

It is a largely accepted motor carrier practice that alcohol and controlled substance information is kept separately from the driver qualification file. This is a practical arrangement that enables employers to defend that the data is adequately secured and access to it is controlled, in compliance with the recordkeeping requirements of parts 40 and 382.

Employers are currently required by § 391.23(c) to keep prior employer furnished investigative information in the driver qualification file. Section 4014 of TEA-21, codified at 49 U.S.C. 508, restricts usage of previous employer investigative data to just the hiring decision. Therefore, this rule changes the specification of where previous employer investigative information is kept to now be with the alcohol and controlled substance data in the already established controlled access, secure file. Because such a file already exists, there should be no significant impact on recordkeeping requirements of prospective employers.

Professional skills.

Motor carriers are already required to provide two-years of prior alcohol and controlled substances data. That function requires designation of a person who has the controlled access to that data. The additional task of reporting accident data could be another responsibility of the person already required to report the alcohol and controlled substances data.

(5)

An identification, to the extent practicable, of all Federal rules which may duplicate, overlap, or conflict with the rule.

The Fair Credit Reporting Act specifies procedures that must be followed by consumer reporting agencies when providing consumer reports. Motor carriers and their agents are consumer reporting agencies when providing information on drivers' safety records to prospective motor carrier employers, as required by this rule. The FCRA specifically authorizes the provision of information “for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee” [15 U.S.C. 1681a(h)]. The purpose of this rule is therefore consistent with the FCRA. Furthermore, the rule is drafted following the model of the FCRA. FMCSA believes there is no duplication, overlap, or conflict with the FCRA or with any other Federal statute or rule.”

(6)

A description of any significant alternatives to the rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the rule on small entities.

The FHWA published an NPRM on March 14, 1996 (61 FR 10548) following the detailed prescriptive specifications contained in section 114 of the HazMat Act. It proposed processes for investigations to previous employers, the required provision of that data, and use of that data in the hiring decision process. The FMCSA published a SNPRM on July 17, 2003 (68 FR 42339) incorporating additional prescriptive requirements contained in section 4014 of TEA-21, and to concerns expressed by various commenters, including the SBA to the NPRM. This final rule responds to concerns expressed in response to the SNPRM. FMCSA continues to believe that the agency does not have the latitude to propose alternatives other than discussed in this rule, because of

the prescriptiveness of the HazMat Act and TEA-21.

Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C. 1532) requires each agency to assess the effects of its regulatory actions on State, local, and tribal governments and the private sector. Any agency promulgating a final rule likely to result in a Federal mandate requiring expenditures by a State, local, or tribal government or by the private sector of $100 million or more in any one year must prepare a written statement incorporating various assessments, estimates, and descriptions that are delineated in the Act. FMCSA has determined that the changes in this rulemaking will not have an impact of $100 million or more in any one year.

Executive Order 12988 (Civil Justice Reform)

This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (April 23, 1997, 62 FR 19885), requires that agencies issuing “economically significant” rules that also have an environmental health or safety risk that an agency has reason to believe may disproportionately affect children must include an evaluation of the environmental health and safety effects of the regulation on children. Section 5 of Executive Order 13045 directs an agency to submit for a “covered regulatory action” an evaluation of its environmental health or safety effects on children. The agency has determined that this rule is not a “covered regulatory action” as defined under Executive Order 13045.

This rule is not economically significant under Executive Order 12866 because the FMCSA has determined that the changes in this rulemaking would not have an impact of $100 million or more in any one year. This rule also does not concern an environmental health risk or safety risk that would disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

Executive Order 13132 (Federalism)

As stated in other parts of this final rule, Congress first mandated details about checking driver safety performance history in section 114 of the HazMat Act. It directed the Secretary to amend the FMCSRs to specify the minimum driver safety performance history information that a motor carrier must investigate from the motor carrier employers and other DOT regulated employers for the preceding three years, and to require those previous employers to provide that data to the requesting motor carrier within 30 days.

Comments to the docket in response to the 1996 NPRM expressed great concern that the agency's proposals in the 1996 NPRM could subject them to considerable litigation and expense by drivers denied employment based on the proposed safety performance history data. Congress responded to those concerns by implementing section 4014 of TEA-21,

3

by granting limited liability to employers and agents furnishing and using this information by preempting State and local laws and regulations creating such liability. TEA-21 also directed FMCSA to include provisions implementing this limited liability, and driver protection rights, in a revision to the previously issued 1996 NPRM. The intent of the Act is to “* * * provide protection for driver privacy and to establish procedures for review, correction, and rebuttal of the safety performance records of a commercial motor vehicle driver.”

3

Section 4014 of the 1998 TEA-21 explicitly says “No State or political subdivision thereof may enact, prescribe, issue, continue in effect, or enforce any law (including any regulation, standard, or other provision having the force and effect of law) that prohibits, penalizes, or imposes liability for furnishing or using safety performance records in accordance with regulations issued by the Secretary to carry out this section.” This Federal preemption of State or local jurisdictions' liability rights is codified at 49 U.S.C. 508, and is intended to facilitate the transfer of this vital investigative driver safety information between DOT regulated employers. The liability limitation does

not

apply if it is proven the previous employer knowingly provided incorrect information.

In the SNPRM, the FMCSA proposed a process similar to what is specified under the FCRA for protecting a driver's rights when investigating previous employer background information. The SNPRM also proposed processes for recordkeeping to make it possible for FMCSA to verify that previous and prospective employers are conforming to the agency's proposed processes protecting driver rights.

Because the preemption requirement set forth in the SNPRM was established by TEA-21, this was the first time this preemption provision was set forth as a proposed regulatory change. Consequently, the SNPRM sought public comments on possible compliance costs or preemption implications from elected State and local government officials or their representatives on whether there may be any major concerns about the proposed preemption of State and local law and regulations for these Federally protected interests. FMCSA did not receive any comments on this issue.

Accordingly, FMCSA determined that implementation of this rule change, in conformance with the specification contained at 49 U.S.C. 508(c), will not add substantial additional compliance costs nor preemption burdens to States or local subdivisions. We also determined that these changes will have no effect on the State or local subdivisions' ability to discharge traditional governmental functions. FMCSA has analyzed this action in accordance with the principles and criteria contained in Executive Order 13132, dated August 4, 1999, and determined that there are not sufficient federalism implications on States that would limit the policy discretion of the States.

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance Program Number 20.217, Motor Carrier Safety. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501

et seq.

) requires Federal agencies to obtain approval from OMB for each collection of information they conduct, sponsor, or require through regulations. FMCSA has determined that the changes in this final rule will impact and/or reference three currently-approved information collections (IC), as follows: (1) Driver Qualification Files, OMB Control No. 2126-0004 (formerly 2125-0065), approved at 941,856 burden hours through December 31, 2005; (2) Accident Recordkeeping Requirements, OMB Control No. 2126-0009 (formerly 2125-0526), approved at 37,800 burden hours through September 30, 2005; and (3) Controlled Substances and Alcohol Use and Testing, OMB Control No. 2126-0012 (formerly 2125-0543),

approved at 573,490 burden hours through August 31, 2004.

There is no effect on the IC burdens covered by Controlled Substances and Alcohol Use and Testing, OMB Control No. 2126-0012. The IC burdens for investigating and reporting requirements are addressed in the IC Driver Qualification Files, OMB Control No. 2126-0004.

The effect of this final rule on the IC burdens of Accident Recordkeeping Requirements, OMB Control No. 2126-0009 is limited to the additional costs for maintaining the accident records for two additional years. FMCSA estimates maintaining data for two additional years will result in an additional 252,000 records. The cost for keeping these records is estimated at $0.15 per record per year, derived from Association of Records Management Activities (ARMA) costs.

FMCSA's estimate of 252,000 additional records is derived as follows. The FMCSA estimates there are approximately 155,000 accidents (as defined in § 390.5 of the FMCSRs) annually involving trucks plus an additional 17,000 accidents involving buses (source: General Estimate System, p. 28). The issue is to estimate how many of these are subject to FMCSA regulations that require the motor carrier to retain accident information in the accident register, pursuant to § 390.15(b)(1).

FMCSA estimates that approximately 80 percent of these accidents involve trucks and buses operated by interstate motor carriers. Additionally, most buses involved in crashes are school or transit buses and are not subject to this recordkeeping requirement. FMCSA estimates about 85 percent of those interstate bus accidents are not subject to accident register retention requirements.

Thus, the number of accidents required by § 390.15(b)(1) to be recorded on accident registers is estimated at:

(0.80 × 155,000) = 124,000 interstate truck accidents that must be in accident register.

(0.80 × 0.15 × 17,000) = 2,040 interstate bus accidents and regulated by FMCSA.

Total accidents that must be placed in motor carriers' accident registers = 126,000 (rounded to the nearest thousand).

Thus, the cost for maintaining this accident information an additional two years is calculated as $37,800 (126,000 accidents per year × 2 years × $0.15 per record = $37,800.)

There are significant adjustments and changes caused by this final rule concerning IC burdens of driver safety performance history records covered by Driver Qualification Files, OMB Control No. 2126-0004. These files are now stored according to § 391.23, called the Driver Qualification file, and § 391.53, called the Driver Investigation History file. The latter contains information that must be secured and controlled regarding who can see the information and when.

For purposes of this information collection, the agency is using 6,458,430 as the estimate of the number of interstate and intrastate drivers that could be impacted by this proposal. Several existing FMCSA information collections employ this number (OMB Control No. 2126-0001—Drivers Records of Duty Status; OMB Control No. 2126-0004—Driver Qualification Files; and OMB Control No. 2126-0006—Medical Qualification Files). The agency believes this high-end estimate captures all drivers who may be affected by the new information collection burdens being proposed here. The agency continues to explore methods of more precisely determining the number of drivers that could be affected by FMCSA regulations.

Number of Drivers Screened

Previous information collections have estimated there are burden hours associated with 839,596 driver job openings each year. That represents a national average turnover rate of 13 percent for the 6,458,430 truck driver positions. However, it is also well known that some sectors of the truck driving industry are characterized by a high driver turnover rate,

e.g.

, truckload.

Comments to the docket for the 1996 NPRM describe various driver-screening processes used by trucking companies to fill these driver positions. In the 2003 SNPRM, FMCSA specifically requested comments addressing on average how many applicants are screened per job opening, or what percentage of applicants are denied employment using current screening practices. Comments to the docket for the SNPRM supported the premise put forward in the preamble that on average more than one applicant is screened for each job. However, there was no clear agreement on what is a representative average number of applicants per job in the many different sub-sectors and industries covered by the FMCSRs.

ATA made inquiries to some of its members and submitted to the docket that the weighted mean of their sample is 80.1 percent of driver applicants are denied employment. However, TCA and others in the truckload sector point out that in their portion of the industry they perceive the labor market to be tight,

i.e.

, a shortage of qualified drivers. CTS Con-Way Transportation Services points out that, “If employers need drivers and they are in short supply, [the motor carriers] will hire who is available.” These comments imply there could be less than an 80.1 percent denial rate in their subsector of the trucking industry.

Comments to the docket for the NPRM and the SNPRM make it clear that different employers covered by the FMCSRs use different screening processes. Some employers physically see and screen the driver on criteria other than driving (because driving is an ancillary duty) before deciding to perform the inquiries and investigations required by § 391.23. On the other hand, some motor carriers such as in the truckload subsector begin the inquiry and investigation process immediately for all driver applicants based on phone or other electronic applications for each applicant. (See document 36 in this docket; record of meeting with DAC Services, Inc.)

AT&T points out they currently perform a substantial screening of potential employees on the company job criteria that forms the major portion of job responsib

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