Safety Performance History of New Drivers

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 382, 383, 390, and 391

[FHWA Docket No. MC-96-6]

RIN 2125-AD66

Safety Performance History of New Drivers

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

-----------------------------------------------------------------------

SUMMARY: The FHWA proposes to amend its regulations to specify minimum

safety information that new and prospective employers must seek from

former employers during the investigation of a driver's employment

record. This notice of proposed rulemaking (NPRM) also proposes to

increase the period of time for which carriers must record accident

information in the accident register from one to three years. This

proposal is mandated by section 114 of the Hazardous Materials

Transportation Authorization Act of 1994 (HazMat Act). The proposed

rules would ensure that employers would be cognizant of critical

information concerning a driver's prior safety performance, while also

affording the driver the opportunity to review and comment on that

information.

DATES: Comments must be received on or before May 13, 1996.

ADDRESSES: All signed, written comments should refer to the docket

number that appears at the beginning of this document and must be

submitted to the Docket Clerk, Room 4232, Office of the Chief Counsel,

Federal Highway Administration, 400 Seventh Street, SW., Washington, DC

20590. All comments received will be available for examination at the

above address from 8:30 a.m. to 3:30 p.m., e.t., Monday through Friday,

except Federal holidays. Those desiring notification of receipt of

comments must include a self-addressed, stamped postcard or envelope.

FOR FURTHER INFORMATION CONTACT: Ms. Valerie Height, Office of Motor

Carrier Research and Standards, (202) 366-

[[Page 10549]]

1790, or Ms. Grace Reidy, Office of the Chief Counsel, (202) 366-0834,

Federal Highway Administration, Department of Transportation, 400

Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45

a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal

holidays.

SUPPLEMENTARY INFORMATION:

Background

The FHWA is initiating this rulemaking in response to section 114

of the HazMat Act, Public Law 103-311, August 26, 1994, 108 Stat. 1677.

Section 114 directs the FHWA to amend its regulations to require a

motor carrier to request from previous employers specific safety

information when investigating a driver's employment record pursuant to

49 CFR 391.23. The former employers would be required to respond to

such requests within 30 days. The driver would be afforded an

opportunity to review and comment on any information obtained from a

former employer.

Currently, Sec. 391.23(a)(2) of title 49 of the Code of Federal

Regulations (CFR) requires motor carriers to make ``an investigation of

the driver's employment record during the preceding three years,''

without specifying the type of information to be sought. The current

regulation does not require a former employer to respond to the new and

prospective employer's inquiry. For this reason, former employers may

refuse to respond to such requests, and new and prospective employers

are, therefore, unable to obtain important safety information about the

driver.

The FHWA proposes to amend 49 CFR parts 382, 383, 390, and 391 to

incorporate the changes mandated by the HazMat Act. Section 391.23

would be amended to require a motor carrier to obtain, for the

preceding three-year period, information about a driver's accident

record, hours-of- service violations resulting in an out-of-service

order, violations of the prohibitions in subpart B of part 382, and

failure to undertake or complete a rehabilitation program recommended

by a substance abuse professional (SAP) under Sec. 382.605. Former

employers would be required to respond within 30 days to such requests.

Drivers would be afforded an opportunity to review and comment on this

information. Conforming changes would be made to Secs. 383.35(f) and

391.21(d) to reflect the driver applicant's right to review and comment

on information obtained from previous employers. To facilitate

information exchange, Sec. 390.15 would be amended to expand the time

period for which carriers must record and retain accident information

in an accident register from one to three years and require that the

information in the accident register be provided to a subsequent

employer in response to a request made during an employment

investigation.

Part 382 would also be amended to incorporate the drug and alcohol

provisions of section 114 of the HazMat Act. Consistent with

Sec. 391.23(c), Sec. 382.413 would be amended to require employers to

investigate whether a driver failed to undertake or complete

rehabilitation or violated the prohibitions in subpart B of part 382.

Employers subject to part 382 would also be required to obtain

information concerning whether a driver violated the drug and alcohol

rules of other DOT agencies as well as the prohibitions in subpart B of

part 382. Other conforming changes are proposed for part 382 that do

not affect Sec. 391.23(c) and are discussed in greater detail under the

section entitled ``Conforming Changes to Part 382.''

Applicability

Motor carriers subject to part 391 would be required to investigate

the specific safety information proposed for Sec. 391.23(c). They would

be required to obtain information relative to a driver's accident

experience and hours-of-service violations from all of the driver's

motor carrier employers during the preceding three years. These motor

carriers would also be required to request certain drug and alcohol

information from employers that employed the driver to operate a

commercial motor vehicle (CMV) requiring a commercial driver's license

(CDL) under part 383 concerning events that occurred during the

preceding three years. The source of the Sec. 391.23(c) drug and

alcohol information has been limited to motor carriers because, under

this part, the FHWA only has authority to require a response from these

employers. New and prospective employers would only be required to

investigate the drug and alcohol information for drivers who operated a

CMV requiring a CDL within the preceding three years because only these

drivers are subject to the part 382 drug and alcohol testing program.

Under Sec. 391.23, motor carriers may request general employment

information from any employer who hired the driver within the preceding

three years. The FHWA proposes to require that new and prospective

employers request the safety information required under section 114 of

the HazMat Act only of previous employers that are motor carriers.

Although section 114 states that the requests for the safety

information must be made to ``former employers,'' only motor carriers

and persons who operate CMVs must comply with the requirements of 49

CFR Part 391. Thus, the proposed inquiry requirements of 49 CFR 391.23

would only apply to former employers that are (or were) motor carriers.

Section 114(a)(2) of the HazMat Act requires former employers to

respond within 30 days to requests for safety information on a driver.

Section 391.23(c) requires the motor carrier to make this investigation

within 30 days of hiring the driver. To avoid prolonging the employment

investigation process to 60 days (up to 30 days for the motor carrier

to initiate the investigation plus up to 30 days for former employers

to respond), the FHWA proposes to clarify Sec. 391.23(c) to require a

motor carrier to commence the investigation as soon as possible, but

not later than 30 days after hiring the driver. Section 391.23(c)(2) is

added to require former employers to provide the information in

Sec. 391.23(c) within 30 days of receiving the request. The former

employer's 30-day response period commences from the postmarked date on

a mailed request, the date of transmission on a facsimile request, or

the date that the former employer was contacted for a personal or

telephone interview. The 30-day period refers to calendar days and

includes weekends and holidays. The 30-day response period concludes as

of the date of postmark on a mailed response, date of transmission on a

facsimile response, or the date that the former employer provides the

information in a personal or telephone interview.

Under these proposed regulations, the driver would be given a

reasonable opportunity to review and comment on any information

obtained during the overall employment investigation. The motor carrier

would be required to notify the driver applicant of such right when

applying for employment.

The items of information proposed in Sec. 391.23(c) are minimum

safety indicators that would be investigated under Sec. 391.23, in

addition to general employment information. The specified information

should not necessarily be regarded as an exclusive list of the

information that would be obtained during the driver's employment

record investigation. Employers would be allowed to continue to

investigate, generally, an applicant's employment record. Employers who

are subject to part 382 would also be required to obtain the

information required by that part (See the section entitled

[[Page 10550]]

``Conforming Amendments to Part 382'').

Specific Minimum Safety Information To Be Sought When Investigating

the Driver's Employment Record Under Sec. 391.23

Under Sec. 391.23, motor carriers would be required to request the

following safety information from a motor carrier employer who, within

the preceding three years, hired the driver to operate a CMV:

1. Accidents (as defined in Sec. 390.5) in which the driver was

involved during the past three years; and

2. Hours-of-service violations that resulted in an out-of-service

order being issued to the driver during the past three years.

Motor carriers would also be required to request information

regarding the following safety violations from an employer who, within

the preceding three years, hired the driver to operate a CMV requiring

a CDL under part 383:

3. Failure of the driver to undertake or complete a rehabilitation

program prescribed by a substance abuse professional pursuant to

Sec. 382.605 during the past three years; and

4. Violations of the prohibitions in subpart B of part 382 during

the past three years.

A discussion of each of the minimum safety indicators follows.

Accidents

The FHWA proposes to require new and prospective employers to

investigate accidents occurring within the preceding three years

involving a driver applicant. An accident is defined in Sec. 390.5 as

follows:

[A]n occurrence involving a commercial motor vehicle operating on a

public road in interstate or intrastate commerce which results in--

(i) A fatality;

(ii) Bodily injury to a person who, as a result of the injury,

immediately receives medical treatment away from the scene of the

accident; or

(iii) One or more motor vehicles incurring disabling damage as a

result of the accident, requiring the motor vehicle to be transported

away from the scene by a tow truck or other motor vehicle.

Section 390.5 provides that the definition of an accident does not

include the following:

(i) An occurrence involving only boarding and alighting from a

stationary motor vehicle; or

(ii) An occurrence involving only the loading or unloading of

cargo; or

(iii) An occurrence in the course of the operation of a passenger

car or a multipurpose passenger vehicle (as defined in 49 CFR 571.3 of

this title) by a motor carrier and is not transporting passengers for

hire or hazardous materials of a type and quantity that require the

motor vehicle to be marked or placarded in accordance with 49 CFR

177.823 of this title.

``Disabling damage'' is defined in Sec. 390.5 as ``damage which

precludes departure of a motor vehicle from the scene of the accident

in its usual manner in daylight after simple repairs.'' This includes

``damage to motor vehicles that could have been driven but would have

been further damaged if so driven.'' However, Sec. 390.5 provides that

disabling damage does not include--

(i) Damage which can be remedied temporarily at the scene of the

accident without special tools or parts.

(ii) Tire disablement without other damage even if no spare tire is

available.

(iii) Headlamp or taillight damage.

(iv) Damage to turn signals, horn, or windshield wipers which makes

them inoperative.

The FHWA proposes that only accidents, as defined in Sec. 390.5, be

investigated instead of ``any motor vehicle accidents'' as stated in

the HazMat Act for the following reasons. First, the FMCSR's definition

of ``accident'' contained in 49 CFR 390.5 is not as all inclusive as

``any motor vehicle accident''; and the FMCSR's definitions apply to

part 391. Section 390.15 already requires motor carriers to retain a

record of ``accidents'' as defined in Sec. 390.5. Broadening the term

``accident'' to include occurrences beyond those described in

Sec. 390.5 would make its definition inconsistent with the National

Governors' Association (NGA) definition and would, therefore, skew the

data contained in the SAFETYNET System. Such action could also

significantly increase the paperwork burden placed upon the motor

carrier industry. The FHWA published a final rule on February 2, 1993,

in the Federal Register (58 FR 6729) which incorporated into the FMCSRs

the accident definition recommended in the NGA study entitled, ``Truck

and Bus Accidents: Getting the Facts'' (1990). In that final rule, the

FHWA eliminated the requirements that motor carriers submit accident

reports to the FHWA and notify the agency telephonically of fatal

accidents, adopted a new accident reporting system (SAFETYNET Accident

Module) which collects information from police accident reports and

incorporates the NGA accident reporting data elements, and required

motor carriers to maintain a register of accidents for a period of one

year after the accident occurs. Each of the actions put into effect by

the February 2, 1993, final rule is based upon the uniform definition

of the term ``accident.'' Therefore, the FHWA proposes to restrict the

accidents investigated under Sec. 391.23(c)(1)(i) to those accidents

defined in Sec. 390.5 so that (1) the relationship between the

definition of an accident and the actions accomplished by the February

2, 1993, final rule is maintained and (2) motor carrier employers may

comply with the HazMat Act requirements without undue burden or

confusion.

To facilitate implementation of the accident information

requirements, the FHWA also proposes to broaden the use of the accident

register. Currently, the accident register may be used to assist

investigations and special studies conducted by representatives or

special agents of the FHWA. The FHWA proposes to encourage motor

carriers also to use it when responding to a new or prospective

employer's request for information about a driver applicant's accident

record.

The FHWA proposes to extend the period of time that the register

must be retained from one to three years. Extending the retention

period to three years would enable a motor carrier employing a driver

for three or more years to provide an accident history to a subsequent

employer for the entire period required by the proposed rule.

This proposal to require inquiries of former employers would not

set aside the motor carrier's responsibility to investigate a driver's

driving record under Sec. 391.23(a)(1). Motor carriers are still

required to inquire about a driver's driving record from the

appropriate State agency in accordance with Sec. 391.23(a)(1). Accident

information obtained from previous employers would supplement any

information from State agencies and, therefore, provide a more

comprehensive safety profile of the driver.

Hours-of-Service Violations Resulting in an Out-of-Service Order

The FHWA considers a driver's hours-of-service violations to be a

major safety indicator. The FHWA would require this information to be

included in the employment investigation under the authority in section

114(b)(4) of the HazMat Act that authorizes ``any other matters

determined by the Secretary of Transportation to be appropriate and

useful for determining the driver's safety performance,'' to be a part

of the investigation. Drivers who violate the hours-of-service rules

often have insufficient rest to safely operate a CMV. The fatigue and

loss of alertness

[[Page 10551]]

resulting from insufficient rest may place them and other highway users

at higher risk. This information, therefore, will help new and

prospective employers identify potentially unsafe drivers.

Failure to Undertake or Complete Drug or Alcohol Rehabilitation

The FHWA proposes to amend Sec. 391.23 so that motor carriers would

be required to investigate whether, within the preceding three years, a

driver failed to undertake or complete a rehabilitation program

pursuant to 49 U.S.C. 31306 after having been found to have used drugs

or alcohol in violation of law or Federal regulation. (Section

114(b)(2) of the HazMat Act incorrectly references 49 U.S.C. 31302 in

addressing this issue; the drafters of the Act clearly intended to

reference the rehabilitation program under section 31306. This

intention is evidenced by earlier versions of Senate Bill 1640 that

relate the rehabilitation program to section 12020 of the Commercial

Motor Vehicle Safety Act of 1986.)

Under 49 U.S.C. 31306, the Secretary of Transportation is directed

to ``prescribe regulations establishing requirements for rehabilitation

programs that provide for the identification and opportunity for

treatment of operators of commercial motor vehicles who are found to

have used alcohol or a controlled substance in violation of law or a

Government regulation.'' The regulations implementing the

rehabilitation requirements of section 31306 appear in 49 CFR 382.605

and apply generally to drivers of CMVs with a gross vehicle weight

rating (GVWR) in excess of 26,000 lbs., vehicles transporting hazardous

materials which are required to be placarded, or vehicles designed to

transport more than 15 passengers, including the driver. Part 382

contains alcohol and drug rules pertaining to motor carriers and

provides procedures and regulations for referring drivers who violate

its prohibitions to a SAP, to determine what, if any, rehabilitation

programs are needed to resolve problems associated with alcohol misuse

and substance abuse. Section 382.501(b) also prohibits an employer from

using a driver who was found to have illegally used drugs or alcohol in

a safety-sensitive function until that driver has received the

recommended treatment.

The amendments proposed under Sec. 391.23(c)(1)(iii) and (iv) would

better enable a motor carrier that operates CMVs with a GVWR between

10,000 and 26,000 lbs. in interstate commerce to comply with

Sec. 382.501(b). Although such an employer is not subject to the entire

part 382, he or she may not use a driver in safety-sensitive functions,

including driving a CMV, if that driver has been found to have

illegally used drugs or alcohol until that driver has received the

recommended treatment. Section 391.23(c)(1)(iv) would require a motor

carrier to investigate whether a driver had illegally used drugs or

alcohol within the previous three years. Section 391.23(c)(1)(iii)

would require a motor carrier to determine whether a driver had failed

to undertake or complete recommended treatment after having been found

to have illegally used drugs or alcohol. This information would assist

the motor carrier that is not subject to part 382 in determining

whether a driver was qualified to operate a CMV.

Determining whether a driver completed rehabilitation may not

always be a straightforward process. Section 382.605(b) requires

employers to refer CDL holders violating the prohibitions of part 382

to a SAP. The SAP must determine what, if any, assistance the driver

needs in resolving problems associated with controlled substance use

and alcohol misuse. If a SAP refers a driver to a rehabilitation

program, the employer may not use that driver in a safety-sensitive

function until assured that the driver has complied with the treatment

recommended by the SAP. The employer is required to maintain records

pertaining to a SAP's determination concerning a driver's need for

assistance and records concerning a driver's compliance with the SAP's

recommendations. Even if a SAP does not refer a driver to a

rehabilitation program, the employer is still required to maintain a

record of the SAP's evaluation.

However, if a driver quits working for the employer before seeing a

SAP or undertaking or completing rehabilitation, that employer is not

required to ensure that the driver completes the SAP reference and

evaluation process. An employer is only prohibited from using the

driver in a safety-sensitive function until the driver complies with a

SAP's recommendations. If the driver terminates employment before the

SAP evaluation or rehabilitation, the employer may not know if

rehabilitation was undertaken, completed or even recommended. A new or

prospective employer would also have no evidence that the driver

complied with the SAP's recommendations.

Therefore, to comply with this requirement, a new employer would

have to investigate whether (1) the driver was ever referred to a SAP,

(2) the SAP referred the driver to a rehabilitation program, and (3) a

SAP's evaluation certified the driver was qualified to return to duty.

Violations of the Prohibitions in Subpart B of Part 382

Section 114(b)(3) of the HazMat Act mandates the investigation of

``any use by the driver, during the preceding 3 years, in violation of

law or Federal regulation, of alcohol or a controlled substance

subsequent to completing such a rehabilitation program.'' This mandate

requires that a motor carrier determine whether a driver continued to

abuse alcohol and/or a controlled substance subsequent to treatment for

such abuse. Section 114(b)(4) authorizes the Secretary to include in

the required information other matters that are appropriate and useful

to determine a driver's safety record. In conjunction with section

114(b)(3), the FHWA proposes to execute the authority granted in

section 114(b)(4) to clarify and enhance the substance abuse safety

information requirement.

Under Sec. 391.23, the FHWA proposes to require that only

violations of the prohibitions listed in 49 CFR Part 382, subpart B, be

required as reportable violations of ``law or Federal regulation, of

alcohol or a controlled substance,'' pursuant to section 114(b)(3). It

is impractical for the FHWA to enforce a rule requiring a motor carrier

to investigate all illegal uses of drugs and alcohol. The statutory

language, ``in violation of law or Federal regulation,'' is broad and

includes drug and alcohol use in violation of State, Federal, or local

law or Federal regulation. A previous employer may have knowledge of

whether a driver used drugs or alcohol ``in violation of law or Federal

regulation,'' but, under this part, the FHWA could only require

employers subject to its regulations to provide it. Most employers may

not willingly respond to such requests for fear of a lawsuit by the

driver.

It is more feasible to clarify the term, ``in violation of law or

Federal regulation,'' to mean violations of the prohibitions in subpart

B of part 382. Subpart B contains drug and alcohol regulations that

pertain to CMV operators. Transmission of the required information will

be aided by the fact that employers subject to part 383 already

maintain a record of a driver's violations under part 382.

The FHWA also proposes to utilize the section 114(b)(4) authority

to require that all part 382, subpart B, violations occurring within

the previous three years be transmitted to the inquiring motor carrier

from the previous

[[Page 10552]]

employer. This requirement expands the provision that required

violations occurring subsequent to rehabilitation be transmitted to the

motor carrier requesting the information. The FHWA believes that a

three-year period, as specified in section 114(b) for other required

information, is in accordance with the intent of the HazMat Act to

grant new and prospective employers sufficient knowledge about safety

histories of drivers.

Extending the reporting period to three years is also efficient

because it may be difficult to determine when rehabilitation was

completed. Many times when a driver is found to have illegally used

drugs or alcohol, an employer provides the driver a list of SAPs,

terminates the driver's employment, and makes a record of the referral.

In this case, the employer would not know whether rehabilitation was

recommended or completed, nor is he or she required to know. Thus, it

could be very difficult, if not impossible, for a new or prospective

employer to ascertain when rehabilitation was recommended or completed.

Removing the ``after rehabilitation'' limitation would satisfy the

intent of the HazMat Act within the authority granted FHWA and enable

motor carriers to more easily implement the requirement. A new or

prospective employer would only be required to know whether, during the

past three years, the driver operated a CMV requiring a CDL under part

383, to determine whether this information must be obtained. If so, the

motor carrier would be required to seek the information only from

employers that hired the driver to operate a CMV requiring a CDL under

part 383 during the past three years.

The Driver's Written Consent for Drug or Alcohol Information

Part 382 requires that drug and alcohol information pertaining to a

driver be released pursuant to the terms of the driver's written

consent. For this reason, the FHWA proposes to add Sec. 391.23(e) to

similarly require employers to request the drug and alcohol information

pursuant to the driver's written consent. Thus, employers could avoid

processing delays caused when the request is not accompanied by the

driver's written authorization.

Driver's Right to Review and Comment on Information

The motor carrier must allow the driver a reasonable opportunity to

review and comment on any safety information obtained. This proposal

does not define ``a reasonable opportunity'' but proposes to leave this

to the motor carrier's discretion. We invite public comment on whether

it is necessary for the FHWA to define what constitutes ``reasonable

opportunity'' and include a specific time frame for compliance.

The driver's right to review and comment on the information is

clearly established by section 114(a)(3) of the HazMat Act. The FHWA

believes that the motor carrier should inform the driver of this right

when the application for employment is completed. The driver's

comments, if any, could be made orally or in writing. However, the

motor carrier is not responsible for correcting any information

obtained. The driver should contact the former employer to settle

disputes over allegedly incorrect information.

Conforming Amendments to Part 382

Because much of the information mandated by section 114 of the

HazMat Act is similar to information currently shared by employers

under part 382, conforming changes are being proposed for Secs. 382.405

and 382.413 to ensure consistency with the HazMat Act. Accordingly,

Sec. 382.413 would be amended to require an employer to seek

information from former employers regarding (1) a driver's failure,

during the preceding three years, to undertake or complete a

rehabilitation program after being found to have violated alcohol or

controlled substances laws or regulations, and (2) any use by the

driver, during the preceding three years, of alcohol or a controlled

substance in violation of 49 CFR Part 382, subpart B or the rules of

other DOT agencies. The congressional mandate in the HazMat Act

requires that this information be released by former employers within

30 days, and that the driver to whom the information applies would have

a reasonable opportunity to review and comment on the information.

Section 382.413, as currently written, requires much of the same

information to be shared between new and prospective employers and

former employers as proposed in this action. Section 382.413 requires

the sharing of information on certain violations of part 382: positive

drug test results, alcohol results of 0.04 alcohol concentration or

greater, and refusals to be tested. Section 114(b)(3) of the HazMat Act

is both broader and narrower than part 382's requirements since section

114(b)(3) mandates the sharing of information on all prohibited uses of

drugs and alcohol by drivers, but limits the inquiry to those

violations that occurred after completing rehabilitation. Section

382.413(a) would be revised to include all violations of subpart B by a

driver, not just testing violations. In addition, based on the

authority granted by section 114(b)(4) of the HazMat Act, which

empowers the Secretary to include other matters ``appropriate and

useful for determining a driver's safety performance'', such violations

would continue to include, but not be limited to, those occurring after

rehabilitation. The FHWA believes that all violations of the

prohibitions in part 382 are important indicators of the driver's

safety performance.

The information required by section 114(b)(2) of the HazMat Act

relative to a driver's failure to complete rehabilitation (already

required implicitly by Sec. 382.413(g)) which must be obtained before a

violator may be permitted to return to driving would be listed as a

separate item in Sec. 382.413(a)(1)(ii).

It should be noted that the records required to be obtained under

Sec. 382.413 would be limited only to those records generated under

part 382 and the alcohol and drug testing rules of other DOT agencies

after January 1, 1995. Interstate motor carriers must maintain their

records, generated under part 391, for the periods of time specified in

Sec. 382.401. Because of the significant difference between the testing

programs in parts 382 and 391, the FHWA would not require new or

prospective employers to obtain the information maintained by former

employers prior to January 1, 1995, for large employers, and January 1,

1996, for small employers. See Sec. 382.413(i).

Other amendments are necessary to conform 49 CFR part 382 to the

HazMat Act. First, Sec. 382.413(a)(1)(i) would extend the period of

shared information from two to three years. Second, Sec. 382.413(h)

would afford drivers a reasonable opportunity to review and comment on

any information obtained by new or prospective employers under

Sec. 382.413(a)(1). Third, Sec. 382.405(f) would allow former employers

30 days to respond to requests for information. The amendment to

Sec. 382.405(f) recognizes that a great majority of requests for

testing information from former employers will occur pursuant to

Sec. 382.413. There is no reason for two standards for response

periods. The 30-day response period provided in the HazMat Act for

information requests to former employers would be made a general

standard in Sec. 382.405(f), thus applying to all requests for drug and

alcohol testing information from employers. Of course, employers may

only disclose a driver's drug and alcohol

[[Page 10553]]

records under part 382 pursuant to the driver's written consent.

The current 14-day limit for new employers to obtain the

information after first using a driver, when not feasible to do so

before using the driver, would be extended to 30 days. Employers would

be required to request the information from former employers as soon as

the employer expects to use or hire the driver to drive or perform

other safety-sensitive functions. The 30-day period should be

sufficient to accommodate information requests and responses made by

mail. Although there is no requirement that the inquiries and responses

be processed by mail, the prudent employer may wish to employ the

faster and confidential communication methods authorized in

Sec. 382.413(e) to meet the 30-day time limit requirement.

Part 382 would continue to require, if feasible, the employer to

obtain the information prior to the first performance of safety-

sensitive functions by a driver. If obtaining the information prior to

the driver's first performance of safety-sensitive functions for the

employer is not feasible, the information would have to be obtained as

soon as possible, but no more than 30 days after first using the driver

to perform safety-sensitive functions.

Beyond incorporating the HazMat Act requirements into part 382, the

source of the violations enumerated in Sec. 382.413 would also be

amended to include all DOT agencies'' alcohol and controlled substances

regulations. The FHWA believes that some drivers may apply for

positions that require driving CMVs after they have violated the

alcohol or drug use prohibitions of another DOT agency. The FHWA has,

therefore, included a requirement that employers request information

from all past employers for which a driver worked in a position covered

by the alcohol and/or drug prohibitions and testing requirements of

another DOT agency. This would ensure that persons applying for

positions that require operating a CMV would have all of their relevant

records of violations investigated. It would also ensure that persons

who test positive are evaluated by a SAP, and, before returning to

perform safety-sensitive functions, complete a recommended

rehabilitation program.

Section 382.413(a)(2) was incorporated into the FMCSRs by a final

rule published in the Federal Register on March 8, 1996, (61 FR 9546).

That action allows previous employers to include information obtained

from other previous employers when responding to requests for a

driver's drug and alcohol information under Sec. 382.413(a)(1), as long

as that information falls within the previous two- year period. Because

the March 8, 1996, final rule was a technical amendment, the FHWA was

unable to mandate the requirements now proposed in Sec. 382.413(a)(2).

Such an action would have made a substantive change to the regulations

requiring public notice before becoming a final rule. This notice

proposes to mandate the requirements proposed in Sec. 382.413(a)(2) in

accordance with the intent of section 114(b) of the HazMat Act by

changing the word ``may'' to ``shall.''

New and prospective employers should ensure that the driver's

written consent authorizes former employers to disclose all

prohibitions listed under Sec. 382.413(a)(1), that occurred within the

previous three years, of which the former employer has knowledge.

Otherwise, a former employer may be prohibited by Sec. 382.405(f) from

passing along to the inquiring employer any Sec. 382.413(a)(1)

information that was obtained from another previous employer. Section

382.405(f) states that records under part 382 may only be released to a

subsequent employer upon receipt of written authorization from a

driver. Disclosure of the part 382 records by the subsequent employer

is also permitted only as expressly authorized by the terms of the

driver's signed authorization. If the driver's authorization had

prohibited the subsequent employer from disclosing the information,

sharing that information with the inquiring employer would be in

violation of Sec. 382.405(f).

Rulemaking Analyses and Notices

All comments received before the close of business on the comment

closing date indicated above will be considered and will be available

for examination in the docket at the above address. Comments received

after the comment closing date will be filed in the docket and will be

considered to the extent practicable. In addition to late comments, the

FHWA will also continue to file in the docket relevant information that

becomes available after the comment closing date. Interested persons

should continue to examine the docket for new material. Nevertheless,

the FHWA may issue a final rule on this matter at any time after the

close of the comment period.

Executive Order 12866 (Regulatory Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has determined that this document does not constitute a

significant regulatory action for the purposes of Executive Order 12866

or a significant regulation under the regulatory policies and

procedures of the DOT. These proposed changes to the Federal Motor

Carrier Safety Regulations would not cause an annual impact on the

economy of over $1 million, and they would not adversely affect a

sector of the economy in a material way. These changes would not create

an inconsistency or otherwise interfere with another agency's actions,

nor do they raise novel legal or policy issues. These changes merely

implement a recently enacted legislative mandate directing the FHWA to

amend its regulations to require a motor carrier to request from

previous employers specific safety information when investigating a

driver's employment record pursuant to 49 CFR 391.23. Motor carriers

are already required by section 391.23(a)(2) to make ``an investigation

of the driver's employment record during the preceding three years.''

These proposed changes merely specify the types of information to be

sought, increase the period of time for which carriers must record

accident information from one to three years, direct former employers

to respond to information requests within thirty days, and require that

drivers be afforded an opportunity to review and comment on any

information obtained from a former employer. Thus, in light of this

analysis, especially the finding that the economic impact of this

action is likely to be minimal, the FHWA has determined that a full

regulatory evaluation is not required.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-

612), the FHWA has evaluated the effects of this rule on small

entities. It is anticipated that the economic impact of this rulemaking

on all employers, regardless of size, will be minimal. This NPRM

proposes to set forth minimum safety information that new and

prospective employers would request when investigating a driver

applicant's employment record. Employers are already required to

maintain this safety information. These amendments would clarify

existing requirements and would impose only a minor additional

requirement on employers to record and retain accident information for

three years instead of one. Accordingly, the

[[Page 10554]]

FHWA certifies that under the criteria of the Regulatory Flexibility

Act this action will not have a significant economic impact on a

substantial number of small entities.

Executive Order 12612 (Federalism Assessment)

This action has been analyzed in accordance with the principles and

criteria contained in Executive Order 12612, and it has been determined

that these proposed changes would not preempt any State law or State

regulation, and no additional costs or burdens would be imposed on the

States. In addition, these changes would have no effect on the States'

ability to discharge traditional State governmental functions. Motor

carrier safety is a matter of national concern to which Congress has

responded by enacting section 114 of the HazMat Act which directs the

FHWA to amend its regulations to specify the safety information a motor

carrier must request from a driver's former employers. Thus, in light

of the importance to the nation as a whole of ensuring that motor

carrier vehicles are operated by safety conscious drivers, this Federal

action regarding the safety performance history of drivers is justified

and does not have sufficient federalism implications to warrant the

preparation of a federalism assessment.

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 apply to this program.

Paperwork Reduction Act

This action would impact existing collection of information

requirements for purposes of the Paperwork Reduction Act of 1995 (44

U.S.C. 3501--3520). It would affect the period of retention for an

existing accident record keeping requirement, extend the period of

inquiry relating to a driver's alcohol and controlled substance

history, and require additional information relating to a driver's

employment investigation under Sec. 391.23 to be retained in the

driver's qualification file. Because of these changes, existing Office

of Management and Budget (OMB) approvals are being revised.

Motor carriers are required under 49 CFR 390.15 to maintain and

retain an accident register for a period of one year. That requirement

was approved by the OMB under control number 2125-0526. This NPRM

proposes to extend the period for which the accident register must be

retained from one to three years under the previous OMB authority.

Extending the retention period would enable motor carriers to satisfy,

with an existing resource, the accident reporting requirements of

section 114(b) of the HazMat Act for the full three-year period. The

information collection requirements imposed by this proposed amendment

have been submitted to the OMB under OMB Control Number 2125-0526 for

approval under the Paperwork Reduction Act.

Section 391.23(c) proposes to require motor carriers to request

from previous employers information about a driver's accidents, illegal

drug and alcohol use, failure to complete recommended treatment for

such abuse, and certain hours of service violations. Currently, motor

carriers are only required to request general employment information

from the previous employer. The amendments proposed in Sec. 391.23(c)

are mandated by Congress and would ensure that employers are cognizant

of critical information concerning a driver's safety performance. The

information collection requirements imposed by these proposed

amendments have been submitted to the OMB under OMB Control Number

2125-0065 for approval under the Paperwork Reduction Act.

Similarly, employers of both interstate and intrastate drivers that

must hold commercial drivers licenses are required, under 49 CFR

382.413, to seek testing information from previous employers for only

the preceding two years. OMB approval for that requirement was granted

under control number 2125-0543. This NPRM would require all motor

carriers to request three years of drug and alcohol testing information

on new drivers who operate in interstate commerce. Therefore, employers

subject to 49 CFR 382.413 would be required to seek drug and alcohol

information about a driver for the previous three years instead of two.

Additionally, not just testing information would be requested from

former employers. Employers would be required to obtain information

about violations of the prohibitions of subpart B of part 382 or the

drug and alcohol rules of another DOT agency or a driver's failure to

undertake or complete recommended treatment. These conforming

amendments are mandated by section 114 of the HazMat Act. The

information collection requirements imposed by these proposed

amendments have been submitted to the OMB under OMB Control Number

2125-0543 for approval under the Paperwork Reduction Act. The FHWA

requests public comment on these new and revised paperwork collection

requirements.

National Environmental Policy Act

This agency has analyzed this proposed action for the purpose of

the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.)

and has determined that it would not have any effect on the quality of

the environment.

Regulation Identification Number

A regulatory identification number (RIN) is assigned to each

regulatory action listed in the Unified Agenda of Federal Regulations.

The Regulatory Information Service Center publishes the Unified Agenda

in April and October of each year. The RIN contained in the heading of

this document can be used to cross reference this action with the

Unified Agenda.

List of Subjects in 49 CFR 382, 383, 390, and 391

Alcohol concentration, Alcohol testing, Commercial motor vehicles,

Controlled substances testing, Drivers, Driver qualifications, Highway

safety, Highways and roads, Hours of Service, Intermodal

transportation, Motor carriers, Motor vehicle safety, Reporting and

recordkeeping requirements, Safety, Transportation.

Issued on: March 6, 1996.

Rodney E. Slater,

Federal Highway Administrator.

In consideration of the foregoing, the FHWA proposes to amend title

49, CFR, subtitle B, chapter III, parts 382, 383, 390, and 391 as set

forth below:

PART 382--[AMENDED]

1. The authority citation for 49 CFR part 382 is revised to read as

follows:

Authority: 49 U.S.C. 31133, 31136, 31301 et seq., 31502; sec.

114, Pub. L. 103-311, 108 Stat. 1673, 1677; and 49 CFR 1.48.

2. In Sec. 382.405, paragraph (f) is revised to read as follows:

Sec. 382.405 Access to facilities and records.

* * * * *

(f) Records shall be made available, within 30 days, to a

subsequent employer upon receipt of written authorization from a

driver. Disclosure by the subsequent employer is permitted only as

expressly authorized by the terms of the driver's signed authorization.

* * * * *

3. Section 382.413 is revised to read as follows:

[[Page 10555]]

Sec. 382.413 Inquiries for alcohol and controlled substances

information from previous employers.

(a) (1) An employer, including a prospective employer, shall,

pursuant to the driver's written authorization, inquire about the

following information relating to the driver from the driver's previous

employers:

(i) Violations of the prohibitions contained in subpart B of this

part, or the alcohol or controlled substances rules of other DOT

agencies, during the past three years; and

(ii) Failure to undertake or complete a rehabilitation program

prescribed by a substance abuse professional pursuant to Sec. 382.605,

or the alcohol or controlled substances rules of another DOT agency,

during the past three years.

(2) The information obtained from a previous employer must contain

any alcohol and drug information the previous employer obtained from

other previous employers under paragraph (a)(1) of this section.

(b) If feasible, the information in paragraph (a) of this section

must be obtained and reviewed by the employer prior to the first time

the driver performs safety-sensitive functions for the employer. If not

feasible, the information must be obtained and reviewed as soon as

possible, but no later than 30 calendar days after the first time a

driver performs safety-sensitive functions for the employer. An

employer shall not permit a driver to perform safety-sensitive

functions after 30 days without having made a good faith effort to

obtain the information as soon as possible. If a driver hired or used

by the employer ceases performing safety-sensitive functions for the

employer before expiration of the 30-day period or before the employer

has obtained the information in paragraph (a) of this section, the

employer must still make a good faith effort to obtain the information.

(c) An employer shall maintain a written, confidential record of

the information obtained under paragraph (a) or (f) of this section.

If, after making a good faith effort, an employer is unable to obtain

the information from a previous employer, a record shall be made of the

efforts to obtain the information and retained in the driver's

qualification file.

(d) The new/prospective employer must provide to each of the

driver's previous employers the driver's specific, written

authorization for release of the information in paragraph (a) of this

section.

(e) The release of any information under this section may take the

form of personal interviews, telephone interviews, letters, or any

other method of transmitting information that ensures confidentiality.

The written authorization for release of this information may be

transmitted to the previous employer by any method that ensures

confidentiality.

(f) The information in paragraph (a) of this section may be

provided directly to the prospective employer by the driver, provided

the employer assures itself that the information is true and accurate.

(g) An employer may not use a driver to perform safety-sensitive

functions if the employer obtains information on a violation of the

prohibitions in subpart B of this part by the driver, without obtaining

information on subsequent compliance with the referral and

rehabilitation requirements of Sec. 382.605 of this part.

(h) An employer shall afford the driver a reasonable opportunity to

review and comment on any information obtained by the employer under

paragraph (a) of this section. The employer shall notify the driver of

this provision at the time of application for employment.

(i) Employers need not obtain information under paragraph (a) of

this section generated by previous employers prior to the starting

dates in Sec. 382.115 of this part.

PART 383--[AMENDED]

4. The authority citation for 49 CFR part 383 is revised to read as

follows:

Authority: 49 U.S.C. 3102, 31101 et seq.; and 31136; sec. 114,

Pub. L. 103-311, 108 Stat. 1673, 1677; and 49 CFR 1.48.

5. In Sec. 383.35, paragraph (f) is revised to read as follows:

Sec. 383.35 Notification of previous employment.

* * * * *

(f) Before an application is submitted the employer shall inform

the applicant that the information he/she provides in accordance with

paragraph (c) of this section may be used, and the applicant's previous

employers will be contacted, for the purpose of investigating the

applicant's work history. The employer shall also inform the applicant

that he/she will be provided an opportunity to review and comment on

any information obtained from previous employers.

PART 390--[AMENDED]

6. The authority citation for 49 CFR part 390 is revised to read as

follows:

Authority: 49 U.S.C. 5901-5907, 31132, 31133, 31136, 31502, and

31504; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677; and 49 CFR

1.48.

7. Section 390.15 is revised to read as follows:

Sec. 390.15 Assistance in investigations and special studies.

(a) A motor carrier shall make all records and information

pertaining to an accident available to an authorized representative or

special agent of the Federal Highway Administration upon request or as

part of any inquiry within such time as the request or inquiry may

specify. A motor carrier shall give an authorized representative of the

Federal Highway Administration all reasonable assistance in the

investigation of any accident including providing a full, true and

correct response to any question of the inquiry.

(b) Motor carriers shall maintain for a period of three years after

an accident occurs, an accident register containing at least the

following information:

(1) A list of accidents containing for each accident:

(i) Date of accident,

(ii) City or town in which or most near where the accident occurred

and the State in which the accident occurred,

(iii) Driver name,

(iv) Number of injuries,

(v) Number of fatalities, and

(vi) Whether hazardous materials, other than fuel spilled from the

fuel tanks of motor vehicle(s) involved in the accident, were released.

(2) Copies of all accident reports required by State or other

governmental entities or insurers.

(c) Motor carriers shall make available, within 30 days after

receiving a request for information about a driver's accident record

from a new or prospective employer, all records and information within

the accident register that pertain to that driver's accident record.

PART 391--[AMENDED]

8. The authority citation for 49 CFR part 391 is revised to read as

follows:

Authority: 49 U.S.C. 504, 31133, 31136, and 31502; sec. 114,

Pub. L. 103-311, 108 Stat. 1673, 1677; and 49 CFR 1.48.

9. In Sec. 391.21, paragraph (d) is revised to read as follows:

Sec. 391.21 Application for employment.

* * * * *

(d) Before an application is submitted, the motor carrier shall

inform the applicant that the information he/she provides in accordance

with paragraph (b)(10) of this section may be used, and the applicant's

prior employers will be

[[Page 10556]]

contacted for the purpose of investigating the applicant's background

as required by Sec. 391.23. The employer shall also inform the

applicant that he/she will be provided an opportunity to review and

comment on any information obtained from previous employers.

10. In Sec. 391.23, paragraph (c) is revised and new paragraphs (d)

and (e) are added to read as follows:

Sec. 391.23 Investigation and inquiries.

* * * * *

(c) The investigation of the driver's employment record required by

paragraph (a)(2) of this section must commence as soon as possible, but

no later than 30 days after the date the driver's employment begins.

The investigation shall consist of personal interviews, telephone

interviews, letters of inquiry, or any other method of obtaining

information that the motor carrier deems appropriate. Each motor

carrier must make a written record with respect to each previous

employer that was contacted. The record must include the previous

employer's name and address, the date the previous employer was

contacted, and its comments with respect to the driver. The record

shall be maintained in the driver's qualification file.

(1) The following information, as a minimum, must be obtained from

all previous employers that employed the driver to operate a commercial

motor vehicle:

(i) Any accidents, as defined by Sec. 390.5 of this subchapter, in

which the driver was involved during the preceding three years;

(ii) Any hours-of-service violations resulting in an out-of-service

order being issued to the driver within the preceding three years;

(iii) Any failure of the driver, during the preceding three years,

to undertake or complete a rehabilitation program pursuant to

Sec. 382.605, after being found to have used, in violation of law or

Federal regulation, alcohol or a controlled substance;

(iv) Any use by the driver, during the preceding three years, in

violation of law or Federal regulation, of alcohol or a controlled

substance subsequent to completing such a rehabilitation program.

(2) Previous employers shall respond to requests for the

information in paragraph (c)(1) of this section within 30 days after

the request is received.

(d) The motor carrier shall afford the driver a reasonable

opportunity to review and comment on any information obtained during

the employment investigation, including the information described in

paragraph (c)(1) of this section. The motor carrier shall notify the

driver of this right at the time of application for employment.

(e) The information required under paragraphs (c)(1)(iii) and (iv)

of this section must be obtained pursuant to the driver's written

authorization.

[FR Doc. 96-6130 Filed 3-13-96; 8:45 am]

BILLING CODE 4910-22-P