Safety Performance History of New Drivers

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: July 17, 2003 (Volume 68, Number 137)]
[Proposed Rules]
[Page 42339-42360]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jy03-30]

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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 390 and 391
[Docket No. FMCSA-97-2277]
RIN 2126-AA17

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Supplemental notice of proposed rulemaking (SNPRM); request for
comments.

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SUMMARY: In March 1996, the Federal Motor Carrier Safety
Administration's predecessor, the Federal Highway Administration
(FHWA), published a notice of proposed rulemaking (NPRM) specifying
what minimum safety performance history information new or prospective
employers would be required to seek concerning commercial motor vehicle
(CMV) drivers and from where that information should be obtained. This
SNPRM: Addresses issues raised in response to the NPRM, including small
business burden, and incorporates new requirements of limitation on
liability and driver privacy protections imposed by the Transportation
Equity Act for the 21st Century (TEA-21).

DATES: FMCSA must receive your comments by September 2, 2003.

ADDRESSES: You may submit comments to DOT DMS Docket Number FMCSA-97-
2277 by any of the following methods:
? Web site: http://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic docket site.
? Fax: 1-202-493-2251.
? Mail: Docket Management Facility; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-
401,Washington, DC 20590-0001.
? Hand Delivery: Room PL-401 on the plaza level of the Nassif
Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except Federal Holidays.
? Federal eRulemaking Portal: Go to http://www.regulations.gov.
Follow the online instructions for submitting
comments.
Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. For detailed instructions on submitting comments and
additional information on the rulemaking process, see the Public
Participation subheading at the beginning of the Supplementary
Information section of this document. Note that all comments received
will be posted without change to http://dms.dot.gov including
any personal information provided. Please see the Privacy Act heading
under Regulatory Notices.
Docket: For access to the docket to read background documents or
comments received, go to http://dms.dot.gov at any time or to
Room PL-401 on the plaza level of the Nassif Building, 400 Seventh
Street, SW., Washington, DC between 9 a.m. and 5 p.m., Monday through
Friday, except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Mr. David Goettee, (202) 366-4097,
FMCSA, 400 Seventh Street, SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:
Public Participation: The DMS is available 24 hours each day, 365
days each year. You can get electronic submission and retrieval help
guidelines under the ``help'' section of

[[Page 42340]]

the DMS web site. If you want us to notify you that we received your
comments, please include a self-addressed, stamped envelope or postcard
or print the acknowledgement page that appears after submitting
comments on-line.

Background
Summary of NPRM
Discussion of Comments to the NPRM
Summary of the SNPRM
Impacts of Other Related Rulemakings
Rulemaking Analyses and Notices
Regulatory Evaluation: Summary of Benefits and Costs
Background and Summary
Costs
Benefits

Background

Section 391.23 of Title 49 of the Code of Federal Regulations
(CFR), Investigations and Inquiries, sets forth a motor carrier's
responsibility to check the driving record and investigate the
employment history of a new driver. The section directs the motor
carrier to investigate information about the employment history from a
driver's previous employers during the last three years. It does not
specify what type of information must be investigated. The driver's
driving records are to be obtained from each State in which the driver
held a motor vehicle operator's license or permit during the preceding
three years. These inquiries and investigations must be completed
within 30 days of hiring the new employee. Currently, there is no
specification of what information must be investigated, or a
requirement for a current or previous employer to respond to such
investigations. Consequently, many former employers refuse 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. 5101-5127. Section 114
of the HazMat Act directed the Secretary of Transportation to amend
Sec. 391.23 to specify minimum safety information to be investigated
from previous employers when performing employment record
investigations on driver candidates and newly hired drivers. A copy of
section 114 of the HazMat Act is included in the docket as document 37.
Section 114 specified that a motor carrier must investigate a driver's
3-year accident record, and drug and alcohol history, from employers
the driver worked for within the previous three years. Current or
previous employers must be required to respond to the investigating
employer within thirty days of receiving the investigation request.
The agency published the NPRM for implementing regulations in the
Federal Register on March 14, 1996 (61 FR 10548). A copy of the NPRM is
in docket FMCSA-1997-2277.

Summary of NPRM

The March 14, 1996, NPRM 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 Sec. 391.23 that motor carriers investigate the
following minimum safety information from 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 Sec. 390.5, (3) failure to undertake or
complete a rehabilitation program recommended by a substances abuse
professional (SAP) under Sec. 382.605, and (4) any ``misuse'' of
alcohol or use of a controlled substance by the driver after he/she had
completed a Sec. 382.605 SAP referral. The existing Sec. 391.23(b)
requirement to obtain a driver's driving record(s) from the State(s)
would be retained. To harmonize Sec. 391.23(e) with then current drug
and alcohol regulations under Sec. 382.413, the agency also proposed
the motor carrier obtain the driver's written authorization to
investigate the required drug and alcohol information.
Current and former employers would 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 this right at the time of application for
employment. Conforming changes were also proposed to Sec. Sec.
383.35(f) and 391.21(d) to reinforce the driver notification
requirement.
Further, the agency proposed under Sec. 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 Sec. 391.23.
These provisions would facilitate the proposal requiring 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, the agency drug and alcohol
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) allowed a
previous employer to pass along drug and alcohol test information
received from other previous employers (as long as the information
covered actions occurring within the previous two-year period). Under
Sec. 382.413(b), if an employer found that it was not feasible to
obtain the drug and alcohol information prior to the first time a
driver performed a safety-sensitive function for the employer, that
employer could 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 had made a good
faith effort to obtain it.
In its 1996 NPRM, the agency also proposed numerous conforming
amendments to expand the type of drug and alcohol information that
should be sought under Sec. 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 other DOT agencies; and (2) failed to undertake or
complete a SAP's rehabilitation referral pursuant to Sec. 382.605, or
the alcohol or controlled substances rules of another DOT agency.
Beyond incorporating the HazMat Act requirements into part 382, the
violations enumerated in Sec. 382.413 would also have been included in
the alcohol and controlled substances regulations of ``all DOT
agencies.'' At that time, 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

[[Page 42341]]

agency. That could have helped to ensure that persons applying for
positions that require 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 Sec. 382.413(a)(2) requirement to pass along drug and alcohol
information received from other previous employers when responding to
an employer's investigation under Sec. 382.413 was subsequently
incorporated into the FMCSRs as a technical amendment in a final rule
published in the Federal Register on March 8, 1996, (61 FR 9546).
However, because Sec. 382.413(a)(2) constituted a substantive change
which should be subject to public notice and comment before becoming a
final rule, the agency also included it in the March 14, 1996 NPRM.
In a related change proposed under Sec. 382.405, disclosure of the
information pursuant to Sec. 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 proposed Sec. 382.413(b), the agency would have extended the
time period allowed to use a driver in a safety-sensitive function
without having received the requisite drug and alcohol 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 having documented a
good faith effort to obtain, the driver's drug and alcohol history.

Discussion of Comments to the NPRM

Small Business Administration Concerns

The Small Business Administration (SBA) believes that a substantial
number of small entities would be economically impacted by the NPRM,
and offered recommendations for minimizing such impacts. In particular,
the SBA recommended FMCSA give more attention to the intent of the
HazMat Act requirements relative to the Regulatory Flexibility Act
certification regarding impacts on small entities, and specifically
include estimates of the number and size of entities and the estimated
costs they would incur. The SBA also requested that more extensive
information be included about the estimated paperwork burden.
FMCSA Response: The FMCSA agrees that more extensive attention to
regulatory flexibility is appropriate, and has included a more detailed
Regulatory Flexibility Act analysis as part of this SNPRM. The agency
has also prepared an initial regulatory evaluation and placed a copy of
the regulatory evaluation in the docket for this rulemaking as document
number 38. A summary of the regulatory evaluation is provided in this
SNPRM under the section entitled ``Regulatory Evaluation: Summary of
Benefits and Costs.'' FMCSA addresses SBA recommendations for major
issues under the following topical discussions.

Employer Liability and Driver Rights

Many comments to the NPRM concerned issues of (1) employer
liability for using investigative driver history background information
in the hiring decision, (2) employer liability for furnishing the
driver history background performance records, and (3) drivers' rights
to review and comment on the accuracy this safety performance
information and to processes for drivers to seek revision or provision
for rebuttal. Seventeen commenters addressed the employer liability
issues. Eighteen addressed the drivers' rights issue.
The American Trucking Associations (ATA) wrote:

``The potential liability arising from providing information about a
former employee to a prospective employer continues to be a matter
of the greatest concern to motor carriers. It has been a major
factor inhibiting the effectiveness of the present provisions of
Sec. 391.23(c) for the past quarter-century. The general view,
based on experience, is that a mere requirement for notification to
drivers set forth in proposed Sec. 383.35(f) and 391.21(d), or as
currently required in Sec. 391.21, is totally inadequate. We are
also concerned with the present provisions and proposed amendments
to Sec. 382.413 because a driver-applicant is not specifically
advised of the regulatory requirements that the prospective employer
obtain the information and the obligation of the previous employer
to provide it. * * * Even if the carrier successfully defends its
action in providing factual information to the prospective employer,
it will have almost surely been put to considerable needless expense
to defend itself.''

A few commenters feared that providing the driver with full access
to information received during the employment history investigation,
and not just that proposed in the NPRM under Sec. 391.23(c)(1), would
increase the threat of litigation for employers, particularly if that
information was the basis for denying the driver employment.
Several commenters proposed various remedies. The Regular Common
Carrier Conference (RCCC) and Interstate Truckload Carriers Conference
(ITCC) suggested the proposed driver's written release required for
alcohol and controlled substances information under Sec.
391.23(c)(1)(iii) and (iv) be required for all investigative
information under Sec. 391.23(c)(1). The RCCC believes this
modification would greatly reduce the potential liability for
unlawfully disclosing investigative information, and ensure that
drivers know beforehand their safety performance records will be
investigated from prior employers.
In supplemental comments to the docket, the ITCC noted that
legislative relief was their preferred option for dealing with employer
liability issues. The ITCC further believes the driver's signed release
would provide an appropriate measure of protection for employers named
as defendants in employment litigation. It pointed out that many
employers have already incorporated some sort of release language into
the printed employment application. Drivers subscribe to the release
when signing the application.
The ITCC further proposed that the agency incorporate language into
the final rule stating that the act of applying for employment denotes
a driver's implied consent to the release of all information that
carriers are required to obtain to make a considered employment
decision. The inclusion of such ``implied consent'' language could be
especially useful in satisfying the concerns of carriers accepting
applications using non-written means, such as drivers calling 800
numbers provided by the carrier for recruiting new drivers. The ATA and
DAC Services, Inc. also recommended including implied consent language
in the final rule. The United Motorcoach Association (UMA) supports
employer protection for releasing driver investigative information by
adding a ``hold harmless'' clause to the final rule.
In the March 14, 1996, NPRM the agency requested specific comments
on whether to define a ``reasonable opportunity'' for a driver to
review and comment on safety performance records and whether this
driver right should have time restrictions.
The Advocates for Highway and Auto Safety (AHAS) urged the agency
to define ``reasonable opportunity'' rather than leave implementation
of this proposal to the motor carrier industry.
Pinnacle Transport Services (Pinnacle) encouraged the agency to
entirely eliminate the proposed right for the driver to review the
furnished

[[Page 42342]]

information, as well as the corresponding stipulation under the
proposed Sec. 383.35(f) and Sec. 391.21(d) that employers notify
driver applicants of this right. Pinnacle believed that ``(u)ntil the
Department of Labor makes this suggestion generally applicable to all
employers, you are unreasonably forcing companies to become
clearinghouses for minutiae.''
Some commenters suggested drivers be allowed to review the
furnished investigative information only if they made a written
request.
Dart Transit Company and Fleetline, Inc. recommended that only
drivers who have been denied employment or a contract, in whole or in
part, based on the furnished safety performance background information,
be allowed to review and comment. They also suggested these drivers be
given up to 30 days after notification of disposition of the
application to provide written comments to the investigating carrier.
In addition, they suggested a corresponding requirement that the
prospective motor carrier advise all driver-candidates of their rights
to request an opportunity to review and comment on the background data
that is received.
Six commenters recommended all drivers be allowed to review and
comment on only the safety items originally proposed under Sec.
391.23(c)(1). Contract Freighters, Inc. suggested that only accident
information be open to a driver's review and comment.
Several commenters recommended specific time frames for the driver
applicant review and comment period. These range from within 3 workdays
to 10, 30 or 60 days after receipt of notification of disposition of
the application, commencement of the application process, or receipt of
the investigation reports from the responding employer.
The United Motorcoach Association (UMA) proposed requiring
employers to complete an employment record within 48 hours of an
employee leaving, unless hindered by extenuating circumstances or
authorized by a mutually agreed upon extension of that period. That
employment record would be the one transmitted to subsequent employers
investigating a prospective driver. The UMA also proposed drivers be
granted the right to add brief personal and enlightening comments to
the previous employer's report and that the combined record be
forwarded to investigating employers upon request.
The International Brotherhood of Teamsters proposed a similar
requirement, but favored allowing the employer 10 days in which to
provide separated employees with his or her complete employment record.
The employee would similarly be entitled to file supplemental comments.
FMCSA Response: On June 9, 1998, the President signed TEA-21.
Section 4014 of the Act addresses this rulemaking by preempting State
and local liability laws and regulations, thus limiting employer
liability for investigating, furnishing and using previous employer
driver safety performance records as part of the hiring decision (i.e.,
the proposed driver safety performance history information enumerated
under Sec. 391.23(d) and (e) of this SNPRM), when carried out in
accordance with FMCSA rules. A copy of section 4014 of TEA-21 is
included in the docket as document 39. Section 4014 further directs the
FMCSA to amend the Safety Performance History of New Drivers NPRM to
specify details of protection for driver privacy, including
establishing procedures whereby drivers may review, correct, or rebut
investigative information received by a prospective motor carrier
employer from a previous employer. FMCSA believes these procedures
replace the phrase ``reasonable opportunity'' and fully address the
concerns expressed above from AHAS.
Section 4014(a) amends 49 U.S.C. chapter 5, by adding section 508,
preempting the right of anyone to bring action against employers
rightfully fulfilling their requirement to investigate, provide and use
specified previous employer driver safety performance history of
driver-applicants as part of the hiring decision.
After implementation of these liability limitation provisions
proposed in this SNPRM, no one would be allowed to bring actions or
proceedings against a motor carrier requesting, providing and using
this information in conformance with the procedures put forth in this
SNPRM. This limitation would only apply if in accordance with FMCSA
regulations the prospective employer has conducted the required
investigations for driver safety performance information, the previous
employers provided the required information to the investigating motor
carrier, the previous employer is not found to have provided false
information, and these processes were carried out in compliance with
the proposed regulations. The proposed regulations would require
observing the driver's right to review, correct or rebut the previous
employer furnished records, and the requirement at 49 CFR 391.23(f) of
this SNPRM to first obtain the driver's written authorization to
release his/her drug and alcohol information.
As a result of the limitation on liability being granted, FMCSA
believes the concerns of those who wanted to restrict drivers' rights
to review previous employer investigative data to only safety items are
fully addressed. FMCSA believes the drivers' right to review, comment,
or rebut applies to all investigative information provided to
prospective employers and used as part of the hiring decision process.
In addition, the method proposed in this SNPRM to further provide
protection for driver privacy for drug and alcohol information is
modeled on that already operational in the DOT drug and alcohol
regulations under 49 CFR part 40, which meet the intent of section 114
of the HazMat Act. Although results of DOT-mandated drug and alcohol
tests were determined not to be medical records, DOT policy treats the
release of such results similar to the release of medical records.
Thus, the applicant would continue to be required to sign a written
authorization for the specific employer (or agent) to provide
investigative information about the applicant's drug and alcohol
history to the prospective employer specified on the authorization. Any
use of the information by the prospective employer for other than
hiring purposes, such as release to anyone not involved in the hiring
process, would be permitted only in accordance with the terms of the
driver's authorization.
Various third party consumer reporting agencies sell services to
the truck and bus industry for obtaining and providing a variety of
information, including inquiries for State driving records and
investigations for employer history pertaining to CMV drivers. A
similar function under the DOT alcohol and controlled substance
regulations is referred to by the term ``Service Agent.'' Such agents
are prohibited by 49 CFR 40.321 from releasing a driver's personal
alcohol and controlled substance information without the driver's
written consent for that specific release.
The DOT Office of the Secretary, Office of Drug and Alcohol Policy
and Compliance interprets the restriction on releasing information to
mean that such third party service agents are prohibited from
disclosing even that a driver's alcohol and controlled substance
information exists in the service agent's files without the driver's
written consent. The proposals in this SNPRM for provision of alcohol
and controlled substances information contain this same restriction on
release of this information by previous employers or

[[Page 42343]]

their agents operating under the limited liability provisions contained
in this SNPRM.
The method proposed in this SNPRM to ensure the driver's right to
review, correct, or rebut contains two major parts. First, as part of
the application process prospective employers are required to notify
driver applicants in writing of their review rights. Second, the
furnishing previous employer is required to work with the driver to
either revise the report, or allow the driver to have his/her rebuttal
appended to the carrier report.
This process is generally modeled after provisions in the Fair
Credit Reporting Act (15 U.S.C. 1681 et seq.) as it applies to motor
carriers obtaining investigative information as part of the hiring
decision process. Prospective employers would be authorized to
investigate, and previous employers would be required to provide, non-
drug and alcohol safety performance history information without a
signed authorization from a prospective employee. Prospective employers
would be required to provide the driver a copy of the information
received if the driver submits a written request to the carrier to
review the information (electronic or Internet requests would be
acceptable).
In the interest of allowing drivers prompt access to the
information critical to their hiring, the FMCSA proposes two business
days for the prospective employer to provide a copy of the
investigative data received upon receipt of a written request from the
driver to review the information. If the driver chooses to correct or
add a rebuttal to a previous employer's information, it is proposed
that the previous employer have up to thirty calendar days to respond
to the driver's request for such changes or incorporation of the
rebuttal.
Comments are requested on the appropriateness of the number of days
proposed for employer responses in this SNPRM. For example, should the
prospective employer have more business days, such as five, or 10, to
provide the driver with copies of the investigative data received?
Should the previous employer be required to respond earlier than 30
calendar days, such as 10 or 15 business days, since the driver may not
be receiving compensation pending resolution of adverse information
provided by the previous employer?
The liability limitation protections under 49 U.S.C 508(a) only
apply to motor carrier employers carrying out these investigations and
other parties functioning as the agent for a previous or prospective
employer. Companies functioning as a consumer-reporting agency
providing reports from their repository of driver safety performance
information, rather than as the agent for a specific motor carrier, are
not granted the liability limitation proposed in this SNPRM. Instead
they are subject to protections specified in the Fair Credit Reporting
Act, 15 U.S.C. 1681 et seq. In addition, the protections under TEA-21
would not apply to motor carriers found to have knowingly provided
false information. The previous or current employer's response should
be based on fact and not opinion or hearsay.
Title 49 U.S.C. section 508 requires that the Sec. 391.23(c)
safety performance history information be accessible only to authorized
persons involved in the hiring decision process and the motor carrier's
insurance company. Under current regulations, motor carriers maintain
information received in response to Sec. 391.23(c) investigations in
the Driver Qualification (DQ) file, along with various other types of
information required by the FMCSRs. These include information related
to the Sec. 391.25 driving record annual review, and the Sec.
391.41(a) bi-annual review of a driver's medical qualifications. The
multiple functions of the DQ file increases the potential that motor
carrier personnel other than those involved in hiring decisions would
repeatedly have access to a driver's background employment records.
However, sections 114(b)(2) and (3) of the HazMat Act specify that
drug and alcohol information are part of the minimum safety performance
information to be sought under Sec. 391.23(c). Therefore, that
information is included in the information specified under section 4014
of TEA-21 as being restricted to limited accessibility, and only used
for the hiring decision.
DOT regulated employers are already required by Sec. 40.25(i) and
Sec. 382.401(a) to maintain drug and alcohol records confidentially in
a secure location with controlled access. As a result, the industry has
already developed procedures for complying with the recordkeeping
requirements of parts 40 and 382. It is accepted practice to maintain
drug and alcohol records separately from the DQ file in order for the
employer to ensure that the data is adequately secured, and access to
it is controlled in compliance with parts 40 and 382 recordkeeping
requirements. Those persons with access to the drug and alcohol records
are specifically designated and charged with keeping the data secure,
and their access is controlled to ensure this is not compromised.
Therefore, the established recordkeeping practices for drug and
alcohol records fulfill the requirements of section 4014 of TEA-21 for
all previous employer investigative information. Accordingly, this
SNPRM proposes under Sec. 391.53 to require that all investigative
information received from previous employers pursuant to Sec.
391.23(c) be kept in the controlled, access-secured file. FMCSA
believes that this meets the accessibility requirements necessary for
employers being granted the limited liability specified in section 4014
of TEA-21.
Therefore, this proposal would revise Sec. 391.23(c) to require
that investigative information received be maintained as specified at
Sec. 391.53. Current instructions in Sec. 391.51(b)(2) for retaining
information relating to the Sec. 391.23(c) investigations in the
driver qualification file would be removed. The restriction contained
in 49 U.S.C. 508(b)(1)(C) that investigative information received from
previous employers can only be used for the hiring decision means the
accident data received cannot be considered in the annual reviews of
the driver's driving record required by Sec. 391.25.
Section 4014 of TEA-21, codified at 49 U.S.C. 508 requires the
Secretary to develop regulations implementing liability limitations on
motor carriers requesting and providing investigative driver safety
performance history information, and that those include procedures for
prospective drivers to review, comment or rebut the information
provided to prospective motor carriers. This SNPRM has modeled driver
rights to review, comment or rebut driver safety performance on those
contained in the Fair Credit Reporting Act for investigative
information.
This SNPRM provides notification at Sec. 391.23(i) of the right of
the driver to request access to information provided to the prospective
motor carrier employer, and at Sec. 391.23(j) for the driver and the
previous motor carrier to resolve any differences. FMCSA requests
comments on the sufficiency of these procedures, and specific, proposed
methods to improve them.

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

SBA recommends FMCSA eliminate its proposal that motor carriers
investigate information about a driver's hours-of-service violations
that resulted in an out-of-service order. SBA does not believe the
agency has adequately explained how the information would contribute to
safety. It points out that section 114 of the Hazmat Act does not
require information about a driver's hours-of-service violations, and
the

[[Page 42344]]

FMCSRs do not require former employers to record or retain such
information. Similarly, other commenters, including J.B. Hunt and
Mobile Corporation, saw little or no relationship to safety
performance.
FMCSA Response: The regulatory evaluation for this proposed rule
reveals a strong and positive relationship between: (1) Hours-of-
service violations that result in out-of-service orders, and (2) future
safety performance. However, FMCSA has decided to eliminate the
proposal for the following reasons: (1) Section 114 of the HazMat Act
does not specifically require this information, (2) information about
hours-of-service violations that resulted in out-of-service orders
would be difficult for prospective employers to obtain from previous
employers, because this information is only systematically reported to
FMCSA as part of the Motor Carrier Safety Assistance Program (MCSAP)
enforcement activities of the States, (3) requiring this information
collection and establishing a motor carrier recording requirement would
be particularly burdensome to small entities, and (4) comments to the
docket opposed the proposal.

Drug and Alcohol Reporting

SBA believes the NPRM would result in an increased number of
inquiries for drug and alcohol information under Sec. 382.413, and
that the 30-day response time would place new burdens upon small
entities. SBA believes opinion and hearsay should be discouraged to
minimize liability and circulation of false information.
To decrease the potential reporting burden and ensure that only
fact-based information would be provided, SBA recommends the agency
specify what information must be sought under Sec. 382.413. The SBA
further believes it would be difficult for employers to report the drug
and alcohol violations and rehabilitation referrals of other DOT
agencies, as proposed under Sec. 382.413(a)(1). The SBA suggested
FMCSA: (1) List the specific DOT modal regulations; (2) explain how to
find records of violations for these rules, and (3) state the effect of
such violations upon a driver's qualifications.
The SBA disagreed with the NPRM provision at Sec. 382.413(a)(2) to
require former employers to pass along driver information that a
previous employer received from prior employers. The SBA recommended
the FMCSA eliminate this requirement.
FMCSA Response: For reasons set forth under the following section
entitled ``Impacts of Other Rulemakings,'' the agency has withdrawn
conforming amendments to part 382, and believes the SBA concerns were
largely addressed in previous rulemakings issued during 2000 and 2001
and affecting 49 CFR parts 40 and 382.
There is another issue on which FMCSA requests comments. Section
4014 of TEA-21, codified at 49 U.S.C. 508 (a)(3), relating to
limitation on liability, states the limitation applies to ``the agents
or insurers of a person described in paragraph (1) or (2).'' Section
508 (b)(1) restricts applicability of the limitation on liability
within the requesting process for use by motor carriers. Sub item (B)
specifically applies to agents and insurers by requiring that ``the
motor carrier and any agents and insurers of the motor carrier have
taken all precautions reasonably necessary to protect the records from
disclosure to any person, except for such an insurer, not directly
involved in deciding whether to hire that individual.'' Section 508
(b)(2) restricts applicability of the limitation on liability to the
previous motor carrier providing the information. Sub item (B) applies
to insurers by requiring that ``the complying person and any agents and
insurers of the complying person have taken all precautions reasonably
necessary to protect the records from disclosure to any person, except
for such insurer, not directly involved in forwarding the records.''
FMCSA points out that insurers are currently not allowed access to
the drug and alcohol information by part 40. FMCSA interprets the
requirements in section 114 of the HazMat Act as creating the authority
to grant a limitation on liability if the drug and alcohol data is made
available to the insurance providers, but does not mandate that they be
given access to this information. Thus, for consistency with the
existing drug and alcohol policy of the DOT established by part 40,
FMCSA proposes that insurers be allowed access to the investigative
information, but exclude any alcohol and controlled substances
information provided by previous employers under written authorization
of the driver applicant.
Comments are desired on whether alternative legal interpretations
regarding insurer access to alcohol and controlled substances
information are intended by the HazMat Act. If so, how should such
access be managed? FMCSA does not have regulatory and enforcement
authority to ensure the insurance providers remain in compliance with
the requirement that the data only be used for the hiring decision.

Accidents

The SBA pointed out that immediate implementation of the proposal
to extend the retention period for accident information from one to
three years would be impossible, i.e., it can only become three years
after passage of time to allow motor carriers to retain accident data
for up to that period. For this reason, the SBA suggested amending
Sec. 390.15 by stating that accidents occurring one year preceding the
rulemaking or after its effective date must be kept for at least three
years. Alternatively, the agency could provide compliance guidance that
reminds field personnel that motor carriers may be unable to
immediately provide information about accidents occurring more than a
year prior to the effective date of the rule because it was not
previously required. The SBA believes the agency should encourage field
personnel to waive penalty or enforcement against carriers until
sufficient time has elapsed to fully comply with the new accident
recordkeeping requirement under Sec. 390.15.
FMCSA Response: The FMCSA agrees with the recommendation to phase
in this requirement and has amended Sec. 390.15 to reflect the
suggested phase in process.

Employment History Form

SBA and other commenters suggested the agency should include more
details specifying the minimum data that must be investigated, and
provided by previous employers. SBA additionally recommended that FMCSA
develop, as part of its guidance materials, a non-mandatory form for
use by inquiring and responding employers.
FMCSA response: In this SNPRM, FMCSA has clarified in the proposed
Sec. 391.23(d) and (e) the information that must be investigated and
provided, and also eliminated redundant amendments to Sec. 382.413.
The description of the required alcohol and controlled substances
records in proposed Sec. 391.23(e) is revised to convey that only
those existing records filed pursuant to Sec. 382.401 are required. If
the previous employer cannot provide the information regarding
completion of a rehabilitation referral, the investigating employer
must obtain it from the driver.

Summary of the SNPRM

The importance of obtaining access to previous employer driver
safety performance history information is long established as a best
hiring practice. The purpose of this proposed regulation is to enhance
the ability of prospective

[[Page 42345]]

employers to make sound hiring decisions. The procedures proposed in
this SNPRM will enable obtaining more complete driver safety
performance information by motor carriers. It will also maximize the
use of this information by providing a limitation on liability of those
providing and using this information, while subjecting them to
administrative controls to protect driver privacy.
The SNPRM specifies minimum safety performance history data that a
motor carrier must investigate about a driver's employment history
under the proposed Sec. 391.23(d) and (e). It differs from the NPRM
by: (1) Refining the list of what information is to be investigated
from previous employers, (2) establishing employer protections for
providing and using the 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, and (5) dropping conforming
amendments to part 382 because they were already addressed under
separate rulemakings discussed in the preamble.
FMCSA has refined the safety performance history data list in
response to comments to the docket and because of changes to agency
drug and alcohol regulations made by recent rulemakings. Section 4014
of the TEA-21 mandated the new employer liability limitation and driver
protections being proposed. Enhanced Regulatory Flexibility analysis is
provided in response to comments to the docket from the Small Business
Administration.

Impacts of Other Related Rulemakings

Recent Changes in Alcohol and Controlled Substance Regulations

When the NPRM for driver safety performance history was issued in
1996, the detailed regulations governing investigations into an
employee's drug and alcohol history were codified at 49 CFR 382.413.
Since that time, DOT has revised its major regulations regarding drug
use and alcohol abuse. Changes to the DOT drug and alcohol regulations,
49 CFR part 40, were finalized in a document entitled ``Workplace Drug
and Alcohol Testing Programs; Final Rule'' (65 FR 79462, December 19,
2000). A correction to the final rule was published at 66 FR 3884,
January 17, 2001; final compliance date details were published at 66 FR
28400, May 23, 2001; and technical amendments to the December 2000
final rule were published at 66 FR 41944, August 9, 2001. These
documents are available in DOT docket number OST-1999-6578. The
Department's program written by the Office of the Secretary and jointly
issued by each of the Operating Administrations was finalized at 66 FR
41955, August 9, 2001. It provides the background for and an overview
of the general, common elements of the modal rules. FMCSA finalized
conforming amendments to the part 40 changes in its drug and alcohol
regulations codified at 49 CFR part 382 and published them in a final
rule at 66 FR 43097, August 17, 2001. A copy of that document has been
placed in DOT docket number FMCSA-2000-8456.
Among other things, these rules streamlined drug and alcohol
testing program requirements for all of the Department's modal entities
having drug and alcohol regulations. All DOT regulated employers--not
just motor carriers--must investigate the drug and alcohol history of a
person intended to be deployed in a safety-sensitive function.
Similarly, DOT-regulated employers must immediately respond to such
investigations. The specific requirements governing investigations
about drug and alcohol information were revised and moved from Sec.
382.413 to 49 CFR Sec. 40.25. The new Sec. 382.413 cross-references
Sec. 40.25.
The HazMat Act directs the Secretary to amend Sec. 391.23. Section
114(b)(2) of the HazMat Act requires motor carriers covered by part 391
to investigate certain drug and alcohol information about a driver as
well as investigating his/her employment history. The motor carrier
drug and alcohol investigation requirements were in existence when the
HazMat Act was signed into law (codified at 49 CFR part 382, which
applies only to motor carriers subject to the 49 CFR part 383--
Commercial Driver's License Standards, Requirements and Penalties).
Because Congress specified no changes for part 382, FMCSA believes
Congress also intended that the new Sec. 391.23 requirement specify
that motor carriers not otherwise subject to the alcohol and controlled
substances testing requirements under part 382, or the CDL standards in
part 383, are also required to investigate this data. This would create
an extra level of safety by requiring these motor carriers to
investigate a driver's alcohol and controlled substances history if the
driver previously held a safety sensitive position subject to the part
382 requirements. This includes obtaining information about drivers who
may have violated part 382 prohibitions, and may be seeking to work for
uncovered motor carriers without having completed DOT return-to-duty
requirements, or who have relapsed subsequent to treatment.
FMCSA believes the new part 40 adequately reflects the spirit of
section 114 of the HazMat Act because it directs employers to: (1)
Investigate completion of a SAP's rehabilitation referral, (2)
immediately respond to drug and alcohol history investigations from new
or prospective employers, and (3) retain certain drug and alcohol
records for up to 3 years. This is because the Sec. 40.25(b)(5)
requirement for ``documentation of the employee's successful completion
of DOT return-to-duty requirements * * *'' describes in a positive
voice the intent under the HazMat Act section 114 that motor carriers
investigate a driver's possible failure to undertake or complete
recommended treatment.
Because the Department has: (1) Recently completed extensive
revisions to its alcohol and controlled substances regulations, (2)
incorporated provisions that accomplish the intent of section 114, and
(3) thoroughly determined the information collection burdens and
economic impacts of these changes, the FMCSA believes it is unnecessary
to propose changes to part 382. The HazMat Act requirement for
modifying Sec. 391.23 to investigate 3-years of possible alcohol and
controlled substances information for all drivers hired by motor
carriers covered by part 391 is placed in Sec. 391.23(e).
Existing Sec. 382.413 cross-references Sec. 40.25 requirements
that an employer investigate an employee's (in the case of FMCSA
regulated entities, a driver's) 2-year drug and alcohol history. That
investigation would include, among other things, information about the
successful completion of DOT return-to-duty requirements for any
employee found to have violated DOT alcohol and controlled substances
rules (i.e., the alcohol and controlled substances regulations of any
DOT agency). The existing requirement in Sec. 40.25 to investigate two
years of information is one year less than required by section 114 of
the HazMat Act and the proposed Sec. 391.23(e) in this SNPRM. Both
require motor carriers to make a 3-year investigation of the alcohol
and controlled substances history, and for previous employers to
provide that information.
The major difference between Sec. 40.25(b)(5) and Sec. 391.23(e)
involves the time period and scope of the alcohol and controlled
substances testing records. This SNPRM would require a prospective
employer to investigate a previous motor carrier's employer information
about violations of only the

[[Page 42346]]

FMCSA alcohol and controlled substances regulations (i.e., 49 CFR part
382, subpart B). Note that part 382 in conformance with part 40,
requires motor carriers to investigate alcohol and controlled substance
information from any previous employer during the prior two years where
the driver held a safety sensitive job.
Specifically, the prospective motor carrier would have to
investigate whether a driver had received a rehabilitation referral
from an SAP pursuant to Sec. 382.605. If so, the prospective motor
carrier would have to receive: (1) Documentation of the driver's
successful completion of DOT return-to-duty requirements, and (2) any
positive test results or refusals to be tested that occurred subsequent
to completion of return-to-duty requirements.
In a related issue, FMCSA would continue not requiring previous
employers to divulge information regarding self disclosed violations of
the alcohol and controlled substances prohibitions made under Sec.
382.121. Such disclosures are not required to be reported as testing
violations nor are they subject to DOT return-to-duty requirements.

Request for Comments

The FMCSA requests comments on any and all aspects of the revised
proposals in this SNPRM. The comments to the docket on the NPRM remain
active. Thus, there is no need to revisit the issues discussed in the
1996 NPRM.

Rulemaking Analyses and Notices

Regulatory 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 has 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 (44 FR 11034, February 26, 1979). It has been reviewed
by the Office of Management and Budget. The subject of requirements for
background checks of prospective driver safety performance history
information will likely generate considerable public interest within
the meaning of Executive order 12866. We have classified the rule as
significant because of the high level of public and congressional
interest in the rule.
This SNPRM modifies an earlier notice of proposed rulemaking by:
(1) Including an expanded discussion of the economic and information
collection burdens of the proposal, (2) setting limitations on employer
liability for using and providing the safety performance history data
of a driver by including the requirements of section 4014 of TEA-21
codified at 49 U.S.C. 508, and (3) establishing the Act's required due
process rights of drivers. FMCSA anticipates that the economic impact
of this SNPRM will not exceed the annual $100 million threshold for
economic significance.
Under a following section of this SNPRM entitled ``Regulatory
Evaluation: Summary of Benefits and Costs,'' the agency estimated the
first-year costs to implement this rule would amount to approximately
$10 million. Total discounted costs over the 10-year analysis period
(2003-2012) would be $76 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. The first-year net benefits associated with this rule would be
negative. Total discounted benefits over the 10-year analysis period
(2003-2012) would be equal to $88 million. Total discounted net
benefits from implementing this rule would equal $12 million over the
10-year analysis period (2003-2012).

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 proposed rule upon small entities, and the determination
that this is considered a significant rulemaking proposal, the agency
has prepared an initial regulatory evaluation and the following RFA
analysis.
(1) A description of the reasons why action by the agency is being
considered. A large number of motor carriers must hire drivers 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 on the nation's roads and highways. Public
concern regarding the safety of commercial motor vehicles and their
operators has heightened awareness of the limited driver safety
performance information available to prospective motor carrier
employers when making hiring decisions. If prospective employers had
access to more information about driver safety performance history it
would enable employers to make more informed decisions regarding the
relative safety risk of drivers who apply for employment.
With enactment of section 114 of the HazMat Act, Congress directed
FMCSA to revise its safety regulations to specify additional minimum
driver safety performance information a prospective employer must
investigate from previous employers. Additionally, the HazMat Act sets
a time limit for previous employers to respond to the investigations,
and provides the driver an opportunity to review and, if necessary,
correct or rebut the safety performance information provided by current
or previous employers to the prospective employer.
In response to industry concerns about the legal liability which
would arise from providing information about driver employment safety
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
investigation records, and to have them corrected or include a rebuttal
from the driver, is made statutory. FMCSA is directed to develop
procedures for implementing these requirements as part of the changes
to Sec. 391.23 mandated by section 114 of the HazMat Act.
(2) A succinct statement of the objectives of, and legal basis for,
the proposed rule. The legal bases for this proposed rule are the
Congressional directives contained in section 114 of the HazMat Act and
section 4014 of TEA-21. Congressional intent is to ensure prospective
motor carriers have

[[Page 42347]]

access to increased information about the safety performance history of
drivers, including access to investigation information from prior
employers about driver applicants.
Regulations at Sec. 391.23(a)(2) and (c) currently require
prospective employers to investigate a driver's employment record with
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 MCSIA for
a Report to Congress on the possibility of requiring employers to
report positive controlled substances test results and for prospective
employers to check such a computer source for the existence of such
information as part of the hiring decision process. A copy of section
226 of MCSIA is included in the docket as document 40.
The objective of this proposed rulemaking is to improve the
quantity and quality of investigations made to previous employers, as
well as the quantity, quality and timeliness of background driver
safety performance information provided to prospective employers. This
should foster more informed employment judgments about the safety risks
of potential new employees, while affording drivers the opportunity to
review and comment on the accuracy of information provided by previous
employers.
This proposed regulation specifies minimum information that must be
investigated, and proposes process modifications 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 defamation lawsuits, etc.
(3) A description of, and, where feasible, an estimate of the
number of small entities to which the proposed rule will apply. This
proposal will apply to all motor carrier employers regulated by the
FMCSRs whose employees apply to work for a motor carrier in interstate
commerce. This includes small motor carriers as well as numerous
entities in other 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 part 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 proposed rule at approximately
419,000 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 the background information proposed in this SNPRM
becomes available to prospective employers.
It is difficult to determine exactly how many existing motor
carriers would be affected by this proposed rule, since it is not known
year-to-year how many employers on average hire drivers. However, it is
known from the Motor Carrier Management Information System (MCMIS) that
there are approximately 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 but still having files
within 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 ($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 operations characteristics of the
private trucking firms would be generally similar to those of for-hire
motor carriers. Using the 90-percent estimate to identify the small
business portion of the existing industry indicates that 450,000 out of
500,000 total existing motor carriers could be defined as small
businesses within this industry. Also, we had estimated that a net
419,000 hiring decisions would be affected by this proposed rule
annually. These 419,000 net annual hirings within the industry
represent 14 percent of the total three million drivers currently
employed within the trucking industry. To be conservative, we assumed
that 14 percent of existing motor carriers would be filling the 14
percent of driver positions each year. Therefore, 14 percent of
existing motor carriers translates to 70,000 out of the 500,000
existing motor carriers who would be hiring drivers each year.
We conservatively assumed that these 70,000 hiring employers would
bear the full cost of the data retention and reporting on the 419,000
drivers to be hired each year for the driver data search, duplication,
and reporting costs incurred by previous employers for providing the
information. (This may not be true based on FMCSA policy that the
previous employer cannot demand payment as a condition for releasing
the data.) Conversely, if we assumed previous employers would bear
these costs (and we assume at least one previous employer to each
driver over the past three years), we could divide compliance costs by
140,000 carriers. However, to ensure we do not underestimate the impact
to small employers, we will stick with the 70,000 estimate.
Total discounted compliance costs of this proposed rule are
estimated at $76 million over the 10-year analysis period (2003-2012),
while first-year costs (in 2003) are estimated at $10 million. If we
divide these first-year costs by the 70,000 hiring companies estimated
to be hiring drivers within a given year, the

[[Page 42348]]

result is a total compliance cost of roughly $143 per motor carrier in
the first year of 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
----------------------------------------------------------------------------------------------------------------
Compliance costs Average pre-tax
Number of firms/% Average annual ($143), as % of profit margins,
Revenue category ($1,000s) of total small revenues avg. revenues by revenue size
firms ($1,000s) percent (percent)
----------------------------------------------------------------------------------------------------------------
<$100............................... 1,487 (5%) $67 0.21 9.5
$100-$249.9......................... 8,715 (30%) 160 0.09 9.5
$250-$499.9......................... 5,687 (19%) $356 0.04 9.5
$500-$999.9......................... 4,890 (17%) 710 <0.01 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 total first-year regulatory compliance costs ($10
million) to the number of existing motor carriers in the industry we
anticipated would be hiring drivers in that year (70,000). As seen in
the above table, the compliance costs of this proposed rule per
existing motor carrier ($143) represent 0.21 percent (or a little more
than 2/10 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 group, compliance costs represent 0.09
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 would reduce, although not eliminate average pre-tax profits
for carriers in any of the carrier revenue groups. The smallest revenue
group in this table (<$100,000 annual revenues), which represents 5
percent of the firms in the Economic Census table, would experience an
average reduction in pre-tax profit margins of 2.2 percent (0.25/
9.5=2.2%). For the second smallest revenue group ($100--249.9), which
represents 30 percent of the small carriers in this motor carrier
group, pre-tax profit margins are reduced by about 0.9 percent. For the
third smallest revenue group, the annual compliance costs associated
with this proposed rule are expected to reduce these carriers' average
pre-tax profit margins by 0.4 percent.
(4) A description of the proposed reporting, recordkeeping and
other compliance requirements of the proposed 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 motor carrier employers of
the previous three years to prospective motor carrier employers. For
employees who assert their right to disagree with the investigative
driver safety performance data reported by that previous employer,
those previous employers will also be required to work with their
previous employees.
In the case of alcohol and controlled substances all previous
employers subject to DOT drug and alcohol regulations or their agents,
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 would 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 this data.
3. Information indicating whether the driver failed to undertake or
complete a rehabilitation referral prescribed by a SAP within the
previous three years, but only if that information is recorded with the
responding previous employer. Previous employers would 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 would not be required to seek alcohol and controlled
substances data they are not already required to retain by part 382.
5. Information indicating whether the driver was involved in any
accidents as defined in Sec. 390.5.
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 proposed
rulemaking.
Motor carriers are already required to respond to alcohol and
controlled

[[Page 42349]]

substances inquiries under part 382. However, requests for that data
are the last information requested in the screening process because of
the requirement for a signed authorization to release any such data,
and this occurs only for that portion of drivers still under
consideration for employment. This proposed rule would enhance the
ability to take enforcement action if a previous employer does not
provide the information required in a timely manner.
All small entities for the previous three years would now be
required to provide their employment investigative safety performance
history data. That data, minus the alcohol and controlled substances
data, likely would be requested routinely for all driver applicants
from all previous motor carriers 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 a focus
group meeting 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. If some employers
operate more as employers of entry-level drivers, then they could often
be required to provide investigation information, but not get much
benefit of receiving such investigations from other previous employers.
In such cases, if the motor carriers furnishing the investigation data
are small entities, the costs could potentially rise to the level of a
significant economic impact on a substantial number of small entities.
If such entities are unable to insist on receiving payment for the
costs of performing this function prior to releasing the data because
of FMCSA policy, there could be a negative impact on them. FMCSA
requests comments on how significant this might be.
Recordkeeping. It is a largely accepted industry practice that
alcohol and controlled substance information is kept separately from
the driver qualification file. This is a practical arrangement that
assists employers to easily defend that the data is adequately secured
and access to it is controlled, in compliance with the recordkeeping
requirements of part 382.
Employers are currently required by Sec. 391.23(c) to keep prior
employer furnished investigative information in the driver
qualification file. Because 49 U.S.C. 508 restricts previous employer
investigative data to just the hiring decision, this SNPRM proposes
changing the specification of where previous employer investigative
information is kept to instead 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
alcohol and controlled substances data. That function requires a person
who is designated as having controlled access to that data. The
addition of reporting accident data could be an added 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 proposed rule.
The Fair Credit Reporting Act (FCRA) specifies procedures that must be
followed by consumer reporting agencies when providing inquiry and
investigative data to motor carriers as part of the hiring decision
process. If such a consumer reporting agency is also the agent of a
motor carrier, then there could be overlap between proposals in this
SNPRM and the FCRA.
(6) A description of any significant alternatives to the proposed
rule which accomplish the stated objectives of applicable statutes and
which minimize any significant economic impact of the proposed 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
with previous employers and use of that data in the hiring decision
process. This SNPRM responds to additional prescriptive requirements
contained in section 4014 of TEA-21, and to concerns expressed by
various commenters, including the SBA. FMCSA believes that the
alternatives discussed in this SNPRM are the ones available to the
agency within the mandates of the HazMat Act and the 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 proposed in this rulemaking would 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)

The safety performance of drivers operating commercial motor
vehicles on

[[Page 42350]]

the nation's roads and highways is a matter of national concern.
Congress recognized the need for mandating a more complete background
check of drivers' safety performance from previous DOT regulated
employers when drivers apply to work for a new motor carrier employer.
This data is vital to prospective employers establishing a driver's
safety performance history. In section 114 of the HazMat Act, Congress
directed FMCSA (then FHWA) to amend its regulations to specify the
minimum safety information that a motor carrier must investigate from a
driver's former DOT regulated employers, and require those employers to
provide that data to the requesting motor carrier in a timely fashion.
The motor carrier industries expressed great concern that the
proposals in the 1996 NPRM could subject them to considerable
litigation and expense by drivers denied employment based on this data.
In section 4014 of TEA-21, Congress responded to those concerns and
specifically granted limited liability to employers and agents
furnishing and using this information by preempting State and local
laws and regulations creating such liability. It directed FMCSA to
include provisions addressing implementation of this limited liability
in a revision to the previously issued 1996 NPRM.
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 provided incorrect information.
The Act replaces the litigation alternative with a mandated
administrative process as the means for a prospective driver to address
their privacy rights to challenge potentially incorrect safety
performance data provided by a previous employer. This mandated process
would enable a driver to review his/her investigative information
provided by a previous DOT regulated employer, request correction of
incorrect information, and require inclusion of a driver provided
rebuttal if agreement is not reached between the driver and the
previous employer furnishing the investigative background information.
The Act says ``* * * 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.'' The process
proposed in this SNPRM is similar to what is specified under the Fair
Credit Reporting Act (FCRA) (15 U.S.C. 1681 et seq.) for protecting a
person's rights when investigating previous employer background
information. Processes are also proposed in this SNPRM 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.
Drivers, State and local subdivisions, and others still have the
right to allege non-compliance with these proposed regulations by
reporting to FMCSA under its complaint procedures at 49 CFR 386.12.
Such complaints could result in an enforcement follow-up for a motor
carrier compliance review. An increasing number of States are
participating under the MCSAP grants as the investigating agents for
FMCSA of these motor carrier regulations, i.e., in such States it is
State agents that perform motor carrier compliance reviews. Thus,
States could be the investigating agents to verify that employers are
complying with the driver protections proposed in this SNPRM.
This action was analyzed in accordance with the principles and
criteria contained in Executive Order 13132 that requires agencies to
certify they have evaluated Federalism issues. The original NPRM was
published in 1996 and there was no preemption of State or local
liability laws or regulations in that proposal. Consequently, the
agency did not receive any comments from elected State or local
officials on the preemption issue.
We anticipate implementation of this proposed rule change, in
conformance with the specification contained at 49 U.S.C. 508(c), would
not add any additional costs or preemption burdens to States or local
subdivisions. We also anticipate these changes would have no effect on
the State or local subdivisions' ability to discharge traditional
governmental functions.
Because the preemption requirement set forth in this SNPRM was
established in 1998 by the TEA-21, this is the first time this
preemption is being set forth as a proposed regulatory change. FMCSA is
seeking comments on possible compliance costs or preemption
implications from elected State and local government officials as part
of this SNPRM stage.
Comments to the docket are sought from State and local officials on
whether there may be any major concerns about the proposed preemption
of State and local law and regulations for these Federally protected
interests. The FMCSA is requesting States and local government
officials, or their representatives, to express any concerns they may
have by submitting comments to the public docket. The agency will
address any concerns prior to issuing a final rule on this subject.

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 the Office of
Management and Budget (OMB) for each collection of information they
conduct, sponsor, or require through regulations. FMCSA has determined
that the proposals in this SNPRM would 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.
The effect of this SNPRM on the burdens of the last two of these
will be minimal, and will relate primarily to the length of time that
records must be kept. The FMCSA, while acknowledging that there may be
a minor impact associated with these collections, is not making
estimates or discussing these minimal impacts at this time. Instead,
the agency is focusing on the information collection regarding Driver
Qualification Files, which will be impacted in a significant manner by
this proposed rule.

[[Page 42351]]

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. The agency continues to explore
methods of more precisely determining the number of drivers that could
be affected by FMCSA regulations.
The truck driving industry is characterized, in general, by a high
driver turnover rate. Previous information collections have estimated
there are burden hours associated with 839,596 driver applications each
year. That represents 13 percent of the 6,458,430 truck driver
positions. Comments to the docket describe various driver-screening
processes used by trucking companies to fill these driver positions.
However, no data is currently available on how many applicants, or what
percentage of applicants, are denied employment using current screening
practices. FMCSA requests comments addressing what the current denial
rates may be under existing driver screening processes.
This proposed rule would provide employers with more information
about the background and safety history of the applicants for
employment as drivers. The agency estimates that an additional 10
percent of the driver applicants with accidents over the last 3 years
(14,300) and 25 percent of the drivers with positive alcohol or
controlled substances tests for the 1 additional year (1,300) will be
refused employment because of the heightened scrutiny of their
background information. Rounded up to the nearest thousand, this
represents 16,000 additional drivers that will be involved in the
hiring process. Employing these figures, the agency estimates this
proposed rule would require motor carriers to make requests for driver
safety background information for a total of approximately 855,596
(839,596 + 16,000) drivers.
In addition, the proposed rule would require the prospective
employer to seek information from all previous employers for whom the
applicant has worked in the past 3 years. For purposes of this
information collection, the agency is estimating that, on average, each
applicant had 1.39 employers in the past 3 years. Therefore, the number
of requests for background information would be 1,189,278 (1.39
employers x 855,596 drivers).
This proposed rule would also require driver applicants to be
advised they can review, request correction, or rebut what a previous
employer provided as that driver's employment history with that
employer. The majority of these notifications would be made via a
statement on the job application; therefore, we are not assigning an
information collection burden for this notification. We request
comments on whether there might be any significant burden in sectors of
the industry using telephone job application processes.
The currently-approved Driver Qualification Files information
collection can be broken down into two sections: (1) Addressing the
burdens of prospective employers and driver applicants during the
hiring process, and (2) addressing the burdens related to carriers and
drivers who are currently employed (e.g., annual review). This proposed
rule would require revisions to the first section and leave the second
section unchanged. In addition, it would create a third section--to
address new burdens imposed by the proposed rule on the former
employers of drivers. The resulting three elements of this information
collection, as proposed, would be: (1) The hiring process (prospective
employers and driver applicants), (2) the annual review (current
employers and drivers), and (3) the responsibilities of previous
employers.
First Element of IC. The changes proposed by this SNPRM to the
first item--the hiring process--address the specific types and
timeframes of employment history to be requested (includes accident
data). The proposed changes to specific types of safety performance
history requested and timeframes of employment do not increase the
information collection burden for the prospective employer
investigations as part of the hiring process. However, prospective
employers would be required to notify drivers of their right to review
their safety performance history received from prospective employers
and provide them with that information, if requested. The burden
estimate for this element is 1,333 burden hours (16,000 drivers x 5
minutes for prospective employers to provide the data to each of those
drivers, divided by 60 minutes).
Another increase regarding the various elements of the hiring
process is to adjust the number of driver applicants estimate to
include 16,000 additional drivers who would need to apply to fill the
positions of the 16,000 it is estimated would not be hired due to
enhanced safety performance history data being received. The increase
in the various elements within the hiring section results in an
additional burden of 4,799 hours for this first IC item (799 hours for
the driver and motor carrier to perform 16,000 additional employment
application-related activities + 4,000 hours for motor carriers to
request driving and safety performance history data for 16,000
additional applicants).
Second Element of IC. The second element of the Driver
Qualification Files--annual review--would be unaffected by this
proposal.
Third Element of IC. The third element of this information
collection is created due to the changes made in this SNPRM. In the
past, previous employers were not required to systematically provide
employment history on their former employees. This proposal would
require all employers to provide driver safety performance history data
(including accident data) for the 3-year period preceding the date of
the request. The annual burden for this requirement is estimated to be
99,107 burden hours (855,596 drivers x an estimated 1.39 previous
employers per driver x 5 minutes, divided by 60 minutes).
This rule also proposes a new right for former drivers to protest
or rebut employment data supplied by previous employers to prospective
employers. Prospective employers would be required to provide the
driver applicant with copies of the information it receives from the
former employer. Former employers would have a duty and be required to:
(1) Provide the past employee/driver the opportunity to rebut; (2)
review a rebuttal, if submitted; (3) amend records, if persuaded by the
rebuttal; (4) append the driver's rebuttal to the record, if not
persuaded to revise their records by the rebuttal; and (5) keep a copy
of the rebuttal with the file and send: (a) the revised record to the
prospective employer, or a copy of the driver's rebuttal, and (b) the
employment history with the appended rebuttal when requested in the
future.
The agency assumes that 16,000 drivers would protest the employment
history provided by former employers. The FMCSA estimates it would take
approximately 2 hours for the driver to create and submit a protest. It
is further estimated that it would take the previous employer 2 hours
to address and respond to each protest. Therefore, the burden estimate
for this activity is 64,000 hours ((16,000 x 2 hours per protesting
driver) + (16,000 x 2 hours per previous employer)).

[[Page 42352]]

The total burden associated with this third area is 163,107 (99,107
(burden associated with previous employers providing safety performance
history) + 64,000 (burden associated with rebuttals/protests)).
Accordingly, Table 2 estimates that the total burden hour increase
for the Driver Qualification Files information collection would be
169,239 (1,333 (notification and driver rights to review data received)
+ 4,799 (adjustment taking into account the additional 16,000 drivers
who would need to go through the hiring process when this proposed rule
is promulgated) + 99,107 (providing 3 years of safety performance
history) + 64,000 (duties associated with drivers who rebut and protest
employment history)).

Table 2.--Driver Qualification Files Information Collection
------------------------------------------------------------------------
Estimated
New activity burden
hours
------------------------------------------------------------------------
Notification and driver rights............................. 1,333
Adjustment for 16,000 additional applicants................ 4,799
Providing 3 years of safety performance history............ 99,107
Driver rebuttals........................................... 64,000
------------
Total.................................................... 169,239
------------------------------------------------------------------------

Interested parties are invited to send comments regarding any
aspect of these information collection requirements, including, but not
limited to: (1) Whether the collection of information is necessary for
the performance of the functions of the FMCSA, including whether the
information has practical utility, (2) the accuracy of the estimated
burden and the various assumptions made in this PRA section, (3) ways
to enhance the quality, utility, and clarity of the information
collection, and (4) ways to minimize the collection burden without
reducing the quality of the information collected.

National Environmental Policy Act

The Federal Motor Carrier Safety Administration (FMCSA) is a new
administration within the Department of Transportation (DOT). The FMCSA
analyzed this rule under the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.) (NEPA), the Council on Environmental Quality
Regulations Implementing NEPA (40 CFR 1500-1508), and DOT Order
5610.1C, Procedures for Considering Environmental Impacts.
This rule would be categorically excluded from further analysis and
documentation in an environmental assessment or environmental impact
statement under paragraph 4.c.(3) of DOT's Order as a project amendment
that does not significantly alter the environmental impact of the
action. This rule would specify minimum safety performance history
information to be sought and provided during the course of a Sec.
391.23(c)(1) investigation into a driver's employment history.

Executive Order 13211 (Energy Supply, Distribution, or Use)

We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use. This action is not a significant energy action
within the meaning of section 4(b) of the Executive Order because it is
not economically significant and not likely to have a significant
adverse effect on the supply, distribution, or use of energy.
Additionally, the Administrator of the Office of Information and
Regulatory Affairs has not designated this rule as a significant energy
action. For these reasons, a Statement of Energy Effects under
Executive Order 13211 is not required.

Regulatory Evaluation: Summary of Benefits and Costs

I. Background and Summary

The primary costs of this proposed rule involve retaining,
investigating, providing, and reviewing additional driver safety
performance data by employers (previous or current and prospective) for
use in hiring decisions. Specific types of additional driver safety
performance data include driver accident, alcohol/controlled substance
test, and rehabilitation program data.
Specific costs to previous or current employers (hereafter referred
to as previous employers) include retaining an additional two years of
accident data on each of its drivers and reporting such investigative
data to all prospective employers of drivers for three years after a
driver leaves their employ. Current regulations require employers to
collect and retain one year of accident data on drivers, and no
requirement to report to prospective employers. Additionally, previous
employers would be required to report on three years of alcohol/
controlled substances test and rehabilitation program data to
prospective employers (in lieu of the two years of data currently
required by existing regulations).
Previous employers are already required by part 382 to report on
driver violations of Federal regulations regarding alcohol and
controlled substances use and/or failure to complete rehabilitation
programs within the preceding two years. This SNPRM proposes adding a
requirement to the Sec. 391.23 pre-employment investigation
requirements and increasing the number of years to be reported by
previous employers from two to three years.
Specific costs to prospective employers include investigating
driver accident and alcohol/controlled substances data from previous
employers and using that data in hiring decisions. Current regulations
require prospective employers to attempt to obtain appropriate driver
Motor Vehicle Record(s) (MVRs) and to investigate employment records
for the preceding three years.
FMCSA has a policy that previous employers cannot make receiving
payment for their costs a condition of providing alcohol and controlled
substances data. If this is also applied to this new requirement of
providing accident data in response to investigations, then the costs
incurred by previous employers for providing all safety performance
history information will be largely borne by previous employers. If
these costs are relatively equally shared, i.e., each employer gets as
much value from investigations to other employers as from providing the
information, then who incurs these costs is not directly important to
calculation of the estimated total costs of this proposed SNPRM.
The 1997 CDL Effectiveness study contained a report of a focus
group meeting of motor carrier safety directors. (CDL Focus Group
Study, November 1996, copy of the Safety Director comments are included
in the docket as document 41.) It documents that a number of motor
carriers require drivers to have obtained previous experience driving a
CMV before that carrier will hire the driver. If some employers operate
more as employers of entry-level drivers, then they could often be
required to provide investigation information, but not get much benefit
of receiving such investigations from other previous employers. In such
cases, if the motor carriers furnishing the investigation data are
small entities, the costs could potentially rise to the level of a
significant economic impact on a substantial number of small entities.
FMCSA requests comments regarding any information that might indicate a
different analysis of costs should be used if such inequalities might
be created by the existing FMCSA policy preventing motor carriers who
are furnishing investigation information from receiving payment for the

[[Page 42353]]

information as a condition of releasing the information.
The discussion that follows is a summary of the costs and benefits
associated with this proposed rule. For a complete discussion of the
data used, assumptions made, and calculations performed for this
analysis, the reader is referred to the docket, where a copy of the
full regulatory evaluation report is contained. A summary of the costs
associated with this proposed rule is included in Table 3.

Table 3.--Summary of Costs, 2003-2012
[In millions of dollars]
------------------------------------------------------------------------

------------------------------------------------------------------------
First Year Costs................................................. $10
Total Discounted Costs, 10-Year Period........................... 76
------------------------------------------------------------------------

First-year costs associated with this rule total $10 million, while
total discounted costs over the entire 10-year analysis period total
$76 million. These figures represent our best estimate of the costs
associated with implementation of this rule. Where uncertainties exist
regarding these cost estimates, we have noted them in the discussion
and invite comment.
The benefits associated with this rule are contained in Table 4.

Table 4.--Summary of Benefits, 2003-2012
[In millions of dollars]
------------------------------------------------------------------------
Total discounted
First-year benefits, 10-
Benefits scenario benefits year analysis
period
------------------------------------------------------------------------
Direct Benefits Only \1\............ $6 $88
With 10% Deterrence Effect \2\...... 7 97
With 25% Deterrence Effect \2\...... 8 110
With 50% Deterrence Effect \2\...... 10 132
------------------------------------------------------------------------
\1\ Under the ``Direct Benefits Only'' scenario, all truck-related
accident reduction benefits result from those commercial drivers with
the worst safety performance records not being hired.
\2\ Under the three benefits scenarios including a ``Deterrence
Effect'', FMCSA assumes that the availability of and easier access to
new commercial driver safety performance data would result in some
drivers improving their driving behavior for fear that prospective
employers would now use such data in future hiring decisions. Since we
were unsure of the magnitude of this effect, we assessed the
deterrence effect at zero, 10, 25, and 50 percent of direct truck-
related accident reduction benefits.

In calculating benefits for this rule, we attempted to account for
both direct and indirect benefits. Direct benefits are reductions in
truck-related accidents that result from prospective employers not
hiring certain commercial drivers (i.e., those with poor accident or
alcohol/controlled substance information) because the new accident and
alcohol/controlled substance test and program data was made available
by previous employers. Indirect benefits are those associated with a
deterrence effect. The FMCSA assumes that the availability of and
easier access to new commercial driver safety performance data would
cause some percentage of drivers to improve their driving behavior, for
fear that prospective employers would now obtain and use such data in
their hiring decisions. Since we do not know the specific magnitude of
the deterrence effect associated with this new data availability, we
calculated this effect as a percent of the direct accident reduction
benefits from this rule.
Comparing total discounted costs and benefits, we have calculated
net benefits estimates and benefit-cost ratios for this rule. They are
contained in Table 5.

Table 5.--Summary of Net Benefits and Benefit-Cost Ratios, 2003-2012
[In millions of dollars]
------------------------------------------------------------------------
Total discounted Benefit-cost
Benefits scenario net benefits \1\ ratio \2\
------------------------------------------------------------------------
Direct Benefits Only................ $12 1.16
With 10% Deterrence Effect.......... 21 1.27
With 25% Deterrence Effect.......... 34 1.45
With 50% Deterrence Effect.......... 56 1.74
------------------------------------------------------------------------
\1\ Total Discounted Net Benefits were derived by subtracting the Total
Discounted Cost estimate of $76 million in Table 3 from each of the
Total Discounted Benefits estimates in Column 3 of Table 4. For
example, subtracting the $76 million in total discounted costs from
Table 3 by the $88 million in Total Discounted Benefits under the
``Direct Benefits Only'' scenario of Table 4 yields Total Net
Discounted Benefits of $12 million over the 10-year analysis period
(2003-2012) examined here.
\2\ Benefit-Cost Ratios were derived by dividing the Total Discounted
Cost estimate of $76 million in Table 3 from each of the Total
Discounted Benefits estimates for each of the Benefits Scenarios
located in Column 3 of Table 4. For example, dividing the $88 million
in Total Discounted Benefits under the ``Direct Benefits Only''
scenario of Table 4 by the $76 million in total discounted costs from
Table 3 yields a Benefit-Cost Ratio of 1.16 over the 10-year analysis
period (2003-2012) examined here. A benefit-cost ratio greater than
one implies that the rule is cost effective to implement when
comparing costs to benefits within the 10-year analysis period.

When examining the total discounted net benefits and benefit-cost
ratios, we see that in all scenarios identified in Table 4, this rule
is cost effective when measured within the 10-year analysis period. The
costs and benefits of this SNPRM will be discussed separately in the
next two sections.

II. Costs

Accident Data
In 1997, the Gallup Organization performed a study for ATA where
they estimated that 403,000 commercial drivers would need to be hired
by the trucking industry each year between the years 1994 and 2005 in
order to meet projected demand. Of this total, Gallup estimated that
320,000 (or 80 percent) would need to be hired due to internal

[[Page 42354]]

turnover (i.e., drivers switching trucking companies), 35,000 (or 8
percent) would need to be hired due to industry growth, and 48,000 (or
12 percent) would need to be hired due to attrition, retirement, and
external turnover (i.e., drivers leaving trucking for alternative
industries).
We anticipate that this proposed rule would alter some portion of
the 403,000 driver hiring decisions made each year within the trucking
industry. Because hiring managers will have additional accident and
alcohol/controlled substance test data with which to select drivers for
positions, it is likely that the new data would result in some drivers
(who previously would have been hired) not being hired because of this
rule. In this analysis, we estimated that roughly 16,000 of the 403,000
commercial drivers hired annually by the industry would now be denied
employment because of the new accident and alcohol/controlled substance
test data becoming available to prospective employers. Of these 16,000
total commercial driver applicants, 14,300 would not be hired because
of the new accident data and 1,300 would not be hired because of the
new alcohol/controlled substance test and program data. When rounded to
the nearest 1,000 (our standard practice in this analysis), it yields
16,000 total driver applicants likely to be denied employment each year
as a result of this proposed rule. Therefore, we estimated the total
number of drivers being considered/hired for positions each year within
the trucking industry at 419,000 (403,000 + 16,000).
To calculate the new accident records that would likely need to be
stored and reported on as part of this rule, we used the average annual
total for truck-related accidents for 1999 and 2000, which is equal to
445,000 (includes all truck-related fatal, injury, and property-damage-
only accidents). Using an estimate of 3 million as the total existing
driver population, we estimated the number of annual accidents per
driver at 0.148 (i.e., 445,000/3 million). In this analysis, we assumed
drivers being hired due to internal turnover (i.e., 320,000 positions)
would be experienced drivers (i.e., with accident records) and the
remainder (i.e., those hired due to attrition, retirement, and industry
growth) would be new drivers (i.e., those without previous accidents).
As such, the number of accidents for which the number of drivers being
hired each year would be responsible is equal to 47,500 (i.e., 0.148 x
320,000).
Over three years, the number of reportable accidents these drivers
would be involved in would total 143,000. We assumed for 10 percent of
these accidents (or almost 14,300 cases, after rounding), the driver
would not be hired as a result. Assuming one accident per driver, we
estimate this new data would reverse 14,300 of the 403,000 hiring
decisions made each year within the industry. We believe the 10-percent
assumption is reasonable, given the importance of accident data in
determining insurance rates and forecasting potential liability costs
for trucking companies. For example, of the average 445,000 truck-
related annual accidents reported in calendar years 1999 and 2000, one
percent (or 4,450) were fatal, 22 percent (or 98,000) were injury-
related, and 77 percent (or 343,000) were property-damage-only
(PDO).\1\ Also, FMCSA research into NHTSA's Fatal Accident Reporting
System (FARS) database reveals in almost 30 percent of two-vehicle
accidents involving a large truck and passenger vehicle, the driver of
the truck exhibited behavior that may have contributed to the
accident.\2\
---------------------------------------------------------------------------

\1\ ``Large Truck Crash Facts 2000'', Federal Motor Carrier
Safety Administration, Analysis Division, March 2002.
\2\ ``Large Truck Crash Profile: The 1997 National Picture'', by
the Analysis Division, Office of Motor Carriers, Federal Highway
Administration, September 1998.
---------------------------------------------------------------------------

Since the literature carefully notes a ``contributing factor''
cannot be equated with crash causation (and FMCSA does not yet have
definitive data on crash causation factors), we must assume that in
only a certain percentage of these crashes did the truck driver's
behavior actually cause the crash. We assume a prospective employer
would use ``cause'' as the primary criterion in deciding whether to
hire a driver or not. In this analysis, we assumed that in only one-
third of these ``contributing factor'' crashes, or 10 percent of all
crashes (i.e., \1/3\ of 30% of all crashes = 10%), did the truck
driver's behavior cause of the crash. In the other two-thirds of
``contributing factor'' crashes, we assumed the truck driver's behavior
either did not in fact cause the crash or that further investigation on
cause was inconclusive and the driver was hired.) Therefore, in 14,300
of the cases where three years of new accident data would be made
available the hiring decisions would be reversed, i.e., the driver
would be denied employment. The FMCSA invites comments regarding the
accuracy of these assumptions.
Regarding retention costs for this new accident data, employers
would be required to store an additional two years of all truck-related
accidents, or 890,000 records, at an average of $0.15 per record
(according to the Association for Records Management Activities
(ARMA)).
Regarding new data reporting requirements for the 419,000 drivers
being considered/hired annually within the industry, 143,000 records
(47,500 annual accident records x 3 years) will now have to be reported
annually by previous employers to prospective employers. Since each
inquiry requires a search (whether it yields past accidents or not),
419,000 record searches will have to be completed per year (@ $1.57 per
search according the ARMA). For the 143,000 cases where an accident is
discovered within the preceding three years, duplication of the record
will have to be performed (@ $1.33 per record according to ARMA) and
the original record will have to be refiled in the driver's file (@
$1.84 per record according to ARMA). Lastly, we assumed one letter
would be mailed (@ $0.37 per letter via first-class mail) for each of
the 419,000 driver record searches conducted annually (with the letter
either containing the data investigated or a statement indicating that
no accidents were found). Multiplying the cost per record for each
activity by the number of records handled under each activity, total
first-year costs from (a) storing/retaining two additional years of
driver accident data, (b) searching/retrieving, duplicating, and
refiling three years of accident data in preparation for mailing, and
(c) mailing out the information are $1.4 million.
Alcohol and Controlled Substances Test-Related Data
Using data from the 2001 FMCSA Drug and Alcohol Testing Survey, we
estimated that an average of 5,100 of the 403,000 drivers hired
annually within the industry will fail random and non-random alcohol/
controlled substances tests each year and will be referred to a
rehabilitation. This proposed rule requires one additional year of such
data to be reported to prospective employers on the 419,000 drivers
considered/hired annually. Since each inquiry requires a search
(whether it yields past data or not), 419,000 record searches will have
to be completed per year (@ $1.57 per search according the ARMA). Also,
in the 5,100 cases where a violation/referral is discovered for
reporting the additional year's results, duplication of the record will
have to be performed (@ $1.33 per record according to ARMA) and the
original record will have to be refiled in the driver's file (@ $1.84
per record according to ARMA). Lastly, we assumed one letter would be
mailed (@ $0.37 per letter via first-class mail) for

[[Page 42355]]

each of the 419,000 driver record searches conducted annually (with the
letter either containing the data investigated or a statement
indicating that no test/program data were found). Multiplying the cost
per record for each activity by the number of records handled under
each activity, total first-year costs from: (a) Searching/retrieving,
duplicating, and refiling one year of such data in preparation for
mailing, and (b) mailing out the information are $0.8 million. Because
of cost savings and overlaps with the already existing processes being
performed, the actual cost likely could be less.
In this analysis, we estimated that roughly 25 percent (or 1,300)
of those 5,100 commercial drivers who fail random or non-random
alcohol/controlled substance tests annually, who are referred to
rehabilitation programs, and who change employment within the industry
each year would now be denied employment because of the new alcohol/
controlled substance program data made available to prospective
employers. Coupled with the 14,300 we earlier estimated would not be
hired because of the new accident data, we have estimated a total of
16,000 commercial driver applicants likely to be denied employment as a
result of this proposed rule's implementation. This estimate will be
revisited when we estimate accident reduction benefits.
Implicit in parts of the above discussion, where we discussed the
number of driver safety performance investigations to be made to
previous employers, we assumed one applicant per job and therefore one
set of investigations to previous employers per prospective driver,
i.e., not multiple drivers applying for one job each being investigated
to all previous employers. This is likely an underestimate of the true
number of investigations likely to be made to previous employers each
year, since in some cases a prospective employer will request safety
performance data on more than just one prospective driver. The safety
directors in the CDL Effectiveness Focus Group Study (November 1996)
reported having to screen many drivers to obtain one good driver to
hire. ``It will take 100 applications to find 10 or 20 good ones, and
that's good.'' Additionally, some portion of prospective drivers will
likely have had more than one previous employer within the last three
years, which would further increase the total number of investigations
made to previous employers within a given year.
However, FMCSA was not able to estimate with any certainty the
number of drivers a prospective employer might consider ``serious
candidates'' for a position and for whom safety performance history
data would be requested. Additionally, although recent estimates on
industry turnover would indicate that across all segments, an average
driver would likely be with the same employer for three or more years,
it is well reported that some segments have much higher turnover rates.
In such segments a prospective driver may have had multiple employers
within the past three years. Given the relative uncertainty in these
numbers though, we assumed one investigation per position to be filled
for the purposes of this evaluation. The agency invites comments
regarding the accuracy of these assumptions and encourages commenters
to provide data to support their position.
Also, we know that some segments of the industry initiates
applications using telephone and other means of communication. As a
result, the prospective employer initiates the required inquiries and
investigations based on the application before the prospective employer
has obtained the signed driver authorization to obtain the drug and
alcohol data. Some portion of these drivers will pass the initial
screening. They will be asked to provide the signed authorization for
the drug and alcohol data.
These second stage screening investigations for possible drug and
alcohol data would be to the same previous employers who were
investigated for accident and other safety performance history data. We
do not have enough data to estimate the additional cost these employers
would bear for these multiple investigations for the same driver
application.
Costs To Notify Drivers of Rights To Review Data
Under this proposed rule, the Sec. 391.23 investigation into a
driver's employment history involves the prospective employer acquiring
driver safety performance data from previous employers. Under this
rule, data obtained through investigation is defined to include driver
accident and alcohol/controlled substances data. For this analysis, we
assumed that 419,000 drivers applying for positions would be notified
of such rights on their employment applications, or via a simple return
letter sent to the driver upon receipt of the application and signed
consent form (for the purposes of retrieving accident and alcohol/
controlled substances data from previous employers). Since we expect
that employers would have to purchase new application forms (including
the new/revised information), we used the difference between the
current cost of a standard application form (at $0.06 each when
purchased from a large office supply distributor) and what we believed
would be the cost for the new customized form ($0.12 each). For 419,000
applications, the annual cost to provide this information to applicants
is much less than $0.1 million.
We do not have sufficient data to estimate the costs that would be
incurred to provide the required notification of driver rights by those
employers who initiate the application process by telephone or other
such means rather than by a form application. However, such costs would
presumably be relatively small. We invite comments on this issue.
Costs Associated With Driver Data Protests
This SNPRM provides that all drivers have the right to review,
comment on, and refute the investigative employment data provided by
their previous employers to prospective employers. However, those
drivers most likely to refute such data are those denied employment as
a result of the information. As such, we assume only those drivers who
are denied employment as a result of the new data (or 16,000 drivers)
would contest their safety performance data provided by a previous
employer.
For these 16,000 cases, we assumed two additional hours of labor
time spent by each driver to file a request/protest with their previous
employer and two additional hours of labor time spent by each previous
employer to address each request/protest. We used an average 2001
hourly wage rate for trucking managers of $35.94, obtained from a cost-
benefit analysis performed for FMCSA by Moses and Savage, 1993, and
updated to 2001 using the GDP Price Deflator. We multiplied this figure
by 16,000 cases, yielding total costs to the trucking company to
address driver protests of their data files of roughly $1.1 million
annually (undiscounted).
As stated, we also assumed the driver would spend two hours filing
the protest with the previous employer. Using the 2001 hourly wage rate
of $14.66 and 16,000 drivers, this cost adds another $0.5 million to
annual total. Lastly, at $0.15 per record filing (using ARMA
recordkeeping estimates) and 16,000 cases, filing activities add only
$2,300 to this cost. Totaling these three components yields an annual
total cost to address driver protests of $1.6 million.
In estimating the driver and employer costs associated with
potential protests,

[[Page 42356]]

it was unclear how frequently the driver or the employer might secure
the services of an attorney to either prosecute or defend against such
protests. Presumably the hourly cost of attorneys would exceed the cost
assumed for trucking managers of $35.94. If this should occur very
often, it could alter the assumed costs. However, because of the
uncertainty costs associated with possible attorney services were not
included in this analysis. The agency invites comments regarding this
approach and encourages commenters to provide data to support their
position.
Costs to Prospective Employers To Collect/Review Additional Data
As discussed, the new driver performance data required under this
proposed rule would expand the investigative data collection and review
process currently being practiced by prospective employers as part of
the hiring process. To determine the cost per hiring decision, we
estimated the prospective employer's review of driver performance data
would be expanded by an additional one-half hour per hiring decision.
Using the average 2001 hourly wage rate for a trucking company manager
of $35.94 and 320,000 experienced drivers (i.e., those who will have
performance histories for these employers to review), total annual
costs of this activity amount to $5.8 million (undiscounted).
Costs to Prospective Employers To Interview ``Replacement Hires''
There will also be new costs to prospective employers to interview
the approximately 16,000 replacement drivers for those applicants now
rejected for positions because of the newly available accident and
alcohol/controlled substance data. We assumed one additional hour per
prospective employer to interview each ``replacement driver''. At an
hourly wage rate of $35.94 per hour per trucking company manager and
16,000 applicants, total annual costs of this activity amount to $0.6
million (undiscounted).
Total Costs
Total first-year costs to implement this proposed rule amount to
approximately $10 million (after rounding). Total discounted costs over
the 10-year analysis period (2003-2012) are $76 million, using a
discount rate of seven percent.

III. Benefits

Societal benefits associated with this proposed rule would accrue
from the expected reduction in accidents resulting from the use of
safer drivers by industry. Specifically, additional driver safety
performance data used in the hiring decision should result in denying
positions to the less safe drivers who prior to this proposed rule
would have been hired. Additionally, it is reasonable to assume this
proposed rule would generate a deterrence effect, since studies of
similar social problems and policy approaches have quantified such
impacts (i.e., reducing alcohol-related accidents via changes in
penalties and public attitudes). In this analysis, we quantified the
``direct'' benefits resulting from a reduction in accidents due to
changes in driver hiring decisions. To estimate ``indirect'' benefits
associated with a deterrence effect, we conducted a sensitivity
analysis by assuming that the benefits from a deterrence effect could
range anywhere from zero, 10 percent, 25 percent, or 50 percent of the
direct accident reduction benefits associated with this rule.
Benefits Resulting From Newly-Available Accident Data
The first source of direct benefits expected from this proposed
rule would occur as a result of trucking company managers using driver
accident data from the three preceding years in their hiring decisions.
A study conducted by the Volpe Center examined the difference in
accident rates for motor carriers with a high number of previous
accidents versus those with a low number of previous accidents. We used
the results of this study as a proxy for the direct accident reduction
potential of this rule, under the logic that if a hiring manager, using
the new accident data provided to him under this rule, ends up hiring
an applicant with a low previous accident rate (or no accidents in the
recent past) in lieu of the applicant with a high previous accident
rate, then accident reduction benefits would accrue from this rule.
Using the study conducted by the Volpe National Transportation
Systems Center, we discovered that motor carriers identified as high-
risk (based on accidents experienced during a 36-month period prior to
identification) had a post-identification accident rate of 81.4
accidents per 1000 power units versus only 29.9 accidents per 1000
power units by carriers identified as low-risk (based on the absence of
past accidents and hence no Accident Safety Evaluation Area (SEA)
score). Under the premise that a motor carrier's accident profile is a
direct extension of his drivers' profiles and is a result of that
carrier's commercial driver hiring and screening process, then we can
use these results to examine differences in drivers.
At a post-identification accident rate difference of 51.5 accidents
per 1000 power units between high- and low-risk carriers, we converted
this accident rate difference to a per-driver rate by assuming two
drivers per power unit on average within the industry (based on
information obtained at the Hours-of-Service Roundtables, July 2000).
Therefore, the difference in accidents per driver is .026 (i.e., 51.5/
(1000 x 2)) over the 18-month post-identification analysis period
examined in the study. Assuming an equal distribution of this accident
involvement differential over the 18-month period following
identification, we estimated the annual difference in accidents between
drivers with and without accidents within the preceding 18 months to be
0.017 accidents per driver per year. Assuming drivers not hired as a
result of this proposed rule would find alternative employment as
drivers after an average of six months of searching, the accident
reduction differential used to calculate benefits in this analysis was
0.0085 per driver. By using such a conservative estimate (i.e., it is
likely that drivers with a high number of past accidents or alcohol/
controlled substance violations would find it difficult to secure
alternative positions within six months), we are ensuring that our
estimates of accident reduction benefits will not be overstated.
Using an average cost per truck-related accident of $79,873 in 2002
dollars (taken from Zaloshnja, Miller, and Spicer, and updated using
the Gross Domestic Product (GDP) Price Deflator), we can estimate the
value of accident reduction benefits.
In the first year of the analysis period (2003), one year of
accident data (or 47,500 accident records) would be available to
prospective employers. Based on an assumption that in 10 percent of
these cases, the driver hiring decision would be reversed, then 4,750
drivers would be denied employment because of the newly-available
accident data. In the second year of the analysis period (2004), two
years of accident data (or 95,000 records) are collected on drivers and
the number of hiring decisions reversed rises to 9,500 (or 10 percent
of the 95,000 records). In 2005 and thereafter, when this proposed rule
would be fully implemented, the number of hiring decisions reversed
because of the new accident data would rise to 14,300 (or 10 percent of
the 143,000 newly-available accident records for the 419,000
experienced drivers hired each year).

[[Page 42357]]

At an average cost per accident of $79,873 in 2002 dollars, an
accident differential of .0085, and 4,750, 9,500, and 14,300 drivers
who are not hired in 2003, 2004, and 2005, respectively, the discounted
value of annual accident reduction benefits is equal to $3.3 million in
2003, $6.5 million in 2004, and $9.8 million in 2005 (when three years
of data become available to prospective employers). This translates to
a total of 41, 81, and 122 accidents avoided in these three years,
respectively, as a result of the newly-available accident data.
Thereafter, the accident reduction potential (122 accidents) remains
the same as that in 2005, the year the accident data retention and
reporting requirement would become fully implemented. First-year
accident reduction benefits equal $3.3 million, while total discounted
accident reduction benefits from the new accident data are equal to $64
million (after rounding) over the 10-year analysis period.
Alcohol and Controlled Substances Data
The second source of direct accident reduction benefits would
result from the availability of driver alcohol and controlled substance
use and rehabilitation program data by prospective employers. The Motor
Carrier Management Information System (MCMIS) contains information on
the number of accidents experienced by drivers with and without alcohol
or controlled substances citations for the period 1999-2001. Results
reveal that the difference in accidents for drivers with and without
citations for alcohol and controlled substances violations is .019
accidents per driver over a three-year period (1999-2001). Assuming an
equal distribution of accident involvement and driver exposure over
this three-year period, the difference in accident profiles between
drivers with and without a citation for a serious traffic violation is
roughly 0.0633 accidents per driver per year.
As was done with the accident data, we conservatively assumed that
drivers who are not hired into positions in any given year because of
the new data would be able to find other driver positions after an
average of six months of searching. As such, the accident reduction
differential used to calculate benefits in this analysis was 0.0316 per
driver for new alcohol/controlled substances data.
Recall that we estimated that 1,300 commercial driver applicants
would now be denied employment because of the new alcohol/controlled
substance program data made available to prospective employers. Using
an average cost per truck-related accident of $79,873 and an annual
difference in accidents of .0316 per driver, annual benefits associated
with this provision equal roughly $3.2 million in 2003. The number of
accidents avoided as a result of the new driver alcohol and controlled
substance test and program data is equal to 41 accidents each year
between 2003 and 2012 (i.e., 0.0316 x 1,280 drivers). Total discounted
accident reduction benefits from the new alcohol/controlled substance
test and program data over the 10-year analysis period are estimated to
be $24 million.
Benefits From a Deterrence Effect
We believe it is plausible to assume there would be a ``deterrence
effect'' associated with this rule, (i.e., where a driver may strive to
improve his safety performance record if he knows that such information
would be available to prospective employers in future hiring
decisions). However, we were unsure as to the specific magnitude of
this effect. Therefore, we incorporated a sensitivity analysis
framework into this evaluation by assuming that the deterrence effect
could range anywhere from zero, 10 percent, 25 percent, or 50 percent
of the value of direct accident reduction benefits measured earlier.
Since the ``deterrence effect'' benefits are a percentage of the direct
accident reduction benefits associated with this rule, they are
identified in the next section, where we discuss the total benefits.
Total Benefits
Total benefits associated with this rule are identified in Table 6
and are separated according to our assumptions regarding the magnitude
of the deterrence effect associated with this rule.

Table 6.--Summary of Benefits, 2003-2012
[In millions of dollars
------------------------------------------------------------------------
Total discounted
First-year benefits, 10-
Benefits scenario benefits year analysis
period
------------------------------------------------------------------------
Direct Benefits Only \1\............ $6 $88
With 10% Deterrence Effect \2\...... 7 97
With 25% Deterrence Effect \2\...... 8 110
With 50% Deterrence Effect \2\...... 10 132
------------------------------------------------------------------------
\1\ Under the ``Direct Benefits Only'' scenario, all truck-related
accident reduction benefits result from the industry's refusal to hire
drivers with the worst safety performance records.
\2\ Under the three benefits scenarios including a ``Deterrence
Effect'', FMCSA assumes that the availability of and easier access to
new commercial driver safety performance data would result in some
drivers improving their driving behavior for fear that prospective
employers would now use such data in future hiring decisions. Since we
were unsure of the magnitude of this effect, we assessed the
deterrence effect at zero, 10, 25, and 50 percent of direct truck-
related accident reduction benefits.

First-year (2003) benefits associated with this proposed rule range
from slightly less than $6.5 million (rounded down to $6 million in the
table) when we assume there is no deterrence effect to almost $10
million when we assume the deterrence effect is equal to 50 percent of
the direct accident reduction benefits of this rule. Total discounted
benefits associated with this rule range from a low of $88 million when
we assume no deterrence effect to a high of $132 million when we assume
the deterrence effect is equal to 50 percent of the direct accident
reduction benefits.

IV. Net Benefits

Total discounted net benefits associated with this proposed rule
are included in Table 7.

[[Page 42358]]

Table 7.--Summary of Net Benefits and Benefit-Cost Ratios, 2003-2012
[In millions of dollars]
------------------------------------------------------------------------
Total discounted Benefit-cost
Benefits scenario net benefits \1\ ratio \2\
------------------------------------------------------------------------
Direct Benefits Only.............. $12 1.16
With 10% Deterrence Effect........ 21 1.27
With 25% Deterrence Effect........ 34 1.45
With 50% Deterrence Effect........ 56 1.74
------------------------------------------------------------------------
\1\ Total Discounted Net Benefits were derived by subtracting the Total
Discounted Cost estimate of $76 million in Table 3 from each of the
Total Discounted Benefits estimates in Column 3 of Table 4. For
example, subtracting the $76 million in total discounted costs from
Table 2 by the $88 million in Total Discounted Benefits under the
``Direct Benefits Only'' scenario of Table 4 yields Total Net
Discounted Benefits of $12 million over the 10-year analysis period
(2003-2012) examined here.
\2\ Benefit-Cost Ratios were derived by dividing the Total Discounted
Cost estimate of $76 million in Table 3 from each of the Total
Discounted Benefits estimates for each of the Benefits Scenarios
located in Column 3 of Table 4. For example, dividing the $88 million
in Total Discounted Benefits under the ``Direct Benefits Only''
scenario of Table 4 by the $76 million in total discounted costs from
Table 3 yields a Benefit-Cost Ratio of 1.16 over the 10-year analysis
period (2003-2012) examined here. A benefit-cost ratio of greater than
one implies that the rule is cost effective to implement when
comparing costs to benefits within the 10-year analysis period.

Total net discounted benefits associated with this rule over the
10-year analysis period range from a low of $12 million when we assume
no deterrence effect benefits, to a high of $56 million when we assume
the magnitude of the deterrence effect is equal to 50 percent of the
direct accident reduction benefits associated with the rule.
Correspondingly, benefit-cost ratios range from a low of 1.16 when we
assume no deterrence effect benefits to a high of 1.74 when deterrence
effect benefits are assumed to equal 50 percent of direct accident
reduction benefits.

List of Subjects

49 CFR Part 390

Highway safety, Intermodal transportation, Motor carriers,
Reporting and recordkeeping requirements, Safety.

49 CFR Part 391

Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor
carriers, Reporting and recordkeeping requirements, Safety.

In consideration of the foregoing, the FMCSA proposes to amend
title 49 CFR chapter III, parts 390, and 391 as set forth below:

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL
[AMENDED]

1. The authority citation for 49 CFR part 390 is revised to read as
follows:

Authority: 49 U.S.C. 508, 13301, 13902, 31133, 31136, 31502,
31504, and sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C.
701 note); sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677; sec.
217, Pub. L. 106-159, 113 Stat. 1748, 1767; and 49 CFR 1.73.

2. Section 390.15 is amended by revising paragraphs (a), (b),
introductory text and by adding paragraph (c) to read as follows:

Sec. 390.15 Assistance in investigations and special studies.

(a) A motor carrier must make all records and information
pertaining to an accident available to an authorized representative or
special agent of the Federal Motor Carrier Safety Administration upon
request or as part of any investigation within such time as the request
or investigation may specify. A motor carrier shall give an authorized
representative of the Federal Motor Carrier Safety 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) For accidents that occur after [Insert date one year prior to
the effective date of the final rule.], motor carriers must maintain an
accident register containing at least the information required by
paragraphs (b)(1) and (b)(2) of this section and retain that
information for three years after the date of each accident. For
accidents that occurred on or prior to [Insert date one year prior to
the effective date of the final rule.], motor carriers must retain the
record containing at least the information required by paragraphs
(b)(1) and (b)(2) of this section in the accident register for a period
of one year after an accident occurred.
* * * * *
(c) Within 30 days after receiving a request for information about
a former driver's accident record from his/her new or prospective
employer, a motor carrier must transmit the information listed in
paragraph (b)(1) of this section for all accidents contained in the
accident register involving that driver that occurred after [Insert
date one year prior to the effective date of the final rule.]
.

PART 391--QUALIFICATIONS OF DRIVERS [AMENDED]

3. The authority citation for 49 CFR part 391 is revised to read as
follows:

Authority: 49 U.S.C. 322, 504, 508, 31133, 31136, and 31502;
Sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677; and 49 CFR 1.73.

4. In Sec. 391.21, paragraphs (b)(10) and (d) are revised to read
as follows:

Sec. 391.21 Application for employment.

* * * * *
(b) * * *
(10)(i) A list of the names and addresses of the applicant's
employers during the 3 years preceding the date the application is
submitted,
(ii) The dates he or she was employed by that employer,
(iii) Whether the job was a safety-sensitive function as defined
under Sec. 382.107, and thus subject to alcohol and controlled
substances testing under 49 CFR part 382, and
(iv) The reason for leaving the employ of that employer;
* * * * *
(d) Before an application is submitted, the motor carrier must
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
previous employers will be contacted, for the purpose of investigating
the applicant's background as required by Sec. 391.23(c). The
prospective employer must also notify the driver in writing of due
process rights as specified in Sec. 391.23(i) regarding information
received as a result of the investigations required by Sec. 391.23(c).
5. In Sec. 391.23, revise paragraph (c) and add new paragraphs (d)
through (m) to read as follows:

Sec. 391.23 Investigations and inquiries.

* * * * *

[[Page 42359]]

(c) The investigation of the driver's employment record required by
paragraph (a)(2) of this section must be completed within 30 days of
the date the driver's employment begins. The investigation may consist
of personal interviews, telephone interviews, letters, or any other
method for investigating that the carrier deems appropriate. Each motor
carrier must make a written record with respect to each previous
employer contacted. The record must include the previous employer's
name and address, the date the previous employer was contacted, and the
information provided about the driver. The record must be maintained
pursuant to Sec. 391.53.
(d) The motor carrier must investigate, at a minimum, the
information listed in this paragraph from all previous employers that
employed the driver to operate a CMV within the previous three years:
(1) General information about a driver's employment record;
(2) (i) Any accidents, as defined by Sec. 390.5 of this
subchapter, involving the driver that occurred in the three-year period
preceding the date of the employment application. The specific
information to be sought regarding any accident is described in Sec.
390.15(b)(1) of this chapter.
(ii) Exception. Until [Insert date two years after the effective
date of the final rule.]
carriers need only provide information for
accidents that occurred after [Insert date one year prior to the
effective date of the final rule.].
(e) The motor carrier must investigate the information listed below
in this paragraph from all previous employers that employed the driver
within the previous three years in a safety-sensitive function, as
defined under Sec. 382.107 of this chapter, that required controlled
substance and alcohol testing pursuant to part 382 of this chapter:
(1) Whether, within the previous three years, the driver had
violated the alcohol and controlled substances prohibitions under
subpart B of part 382 of this chapter.
(2) For a driver reported pursuant to paragraph (e)(1) of this
section, whether the driver failed to undertake or complete a
rehabilitation program prescribed by a substance abuse professional
(SAP) pursuant to Sec. 382.605 of this chapter. If the previous
employer does not know this information (e.g., an employer that
terminated an employee who tested positive on a drug test), the
prospective motor carrier must obtain documentation of the driver's
successful completion of the SAP's referral directly from the driver.
(3) For a driver reported pursuant to paragraph (e)(1) of this
section who had successfully completed a SAP's rehabilitation referral,
and remained in the employ of the referring employer, information on
whether the driver had the following testing violations subsequent to
completion of a Sec. 382.605 referral:
(i) Alcohol tests with a result of 0.04 or higher alcohol
concentration;
(ii) Verified positive drug tests;
(iii) Refusals to be tested (including verified adulterated or
substituted drug test results).
(f) A prospective motor carrier must provide to the previous motor
carrier the driver's written consent for the release of the information
in paragraph (e) of this section. If the driver refuses to provide this
written consent, the prospective motor carrier must not permit the
driver to operate a commercial motor vehicle for that motor carrier.
(g) Previous employers must respond to requests for the information
in paragraphs (d) and (e) of this section within 30 days after the
request is received. The previous employer must take all precautions
reasonably necessary to ensure the accuracy of the records.
(h) The release of information under this section may take any form
that reasonably ensures confidentiality, including letter, facsimile,
or e-mail. The previous employer and its agents and insurers must take
all precautions reasonably necessary to protect the records from
disclosure to any person not directly involved in forwarding the
records, except the previous employer's insurer.
(i)(1) The prospective employer must expressly notify the driver--
via the application form or other written document--that he or she has
the following rights regarding the investigative information provided
to the prospective employer pursuant to paragraphs (d) and (e) of this
section:
(i) The right to review information provided by previous employers;
(ii) The right to have errors in the information corrected by the
providing previous employer and for that previous employer to re-send
the corrected information to the prospective employer;
(iii) The right to have a rebuttal statement attached to the
alleged erroneous information, if the submitting previous employer
disagrees with the driver that the information is incorrect.
(2) Drivers wishing to review previous employer-provided
investigative information must submit a written request to the
prospective employer. The prospective employer must provide this
information to the applicant within two (2) business days. If the
prospective employer has not yet received the requested information
from the previous employer(s), then the two-business days deadline will
begin when the prospective employer receives the requested information.
If the driver has not arranged to pick up or receive the requested
records within thirty (30) days, the prospective motor carrier may
consider the driver to have waived his/her request to review the
records.
(j)(1) Drivers wishing to correct erroneous information in records
provided pursuant to paragraphs (d) and (e) of this section must send
the allegation of error, proof of error, and request to correct, to the
previous employer who provided the records to the prospective employer.
(2) If the previous employer and the driver agree the information
in question is erroneous, the previous employer must correct the
information and, within thirty (30) business days after receiving the
driver's allegation/proof/request to correct, must send the corrected
information to the prospective employer. The previous employer must
also retain the corrected information for providing to subsequent
prospective employers when requests for this information are received.
(3) If the previous employer and the driver cannot agree the
information in question is erroneous, then the previous employer must
accept a rebuttal from the driver, if he/or she wishes to provide one,
and within thirty (30) business days after receiving the driver's
allegation/proof/request to correct, must send a copy of the driver's
rebuttal to the prospective employer. The previous employer must append
the driver's rebuttal to the information in its file and provide the
complete appended information to any subsequent investigating
prospective employer.
(k)(1) The prospective employer must use the information described
in paragraphs (d) and (e) of this section only to decide whether to
hire the driver who is the subject of those records.
(2) The prospective employer and its agents and insurers must take
all precautions reasonably necessary to protect the records from
disclosure to any person not directly involved in deciding whether to
hire the driver, except that disclosure (excluding any alcohol or
controlled substances information) may be made to the prospective
employer's insurer for the purpose of determining whether to include
the driver on carrier insurance.
(l)(1) No action or proceeding for defamation, invasion of privacy,
or

[[Page 42360]]

interference with a contract that is based on the furnishing or use of
information in accordance with this section may be brought against--
(i) A motor carrier investigating the information, described in
paragraphs (d) and (e) of this section, of an individual under
consideration for employment as a commercial motor vehicle driver,
(ii) A person who has provided such information; or
(iii) The agents or insurers of a person described in paragraph
(l)(1) or (l)(2) of this section, except insurers are not granted a
limitation on liability for any alcohol and controlled substance
information.
(2) The protections in paragraph (l) of this section do not apply
to persons who knowingly furnish false information, or who are not in
compliance with the procedures specified for these investigations.
6. In Sec. 391.51, paragraph (b)(2) is revised to read as follows:

Sec. 391.51 General requirements for driver qualification files.

* * * * *
(b) * * *
(2) A copy of the response by each State agency concerning a
driver's driving record pursuant to Sec. 391.23(a)(1);
* * * * *
7. Add a new Sec. 391.53 to read as follows:

Sec. 391.53 Driver Employment History File.

(a) Each motor carrier must maintain records relating to the
investigation into the employment history of a new or prospective
driver pursuant to paragraphs (d) and (e) of this section. This file
must be maintained in a secure location with controlled access.
(1) The motor carrier must ensure that access to this data is
limited to those who are involved in the hiring decision or who control
access to the data. In addition, the motor carrier's insurer may have
access to the data (except the alcohol and controlled substances data)
for the purpose of determining whether to include the driver on the
carrier's insurance policy.
(2) This data must only be used for the hiring decision.
(b) The file must include:
(1) A copy of the driver's written authorization for the motor
carrier to seek information about a driver's drug and alcohol history
as required under Sec. 391.23(d).
(2) A copy of the response(s) received to request for information
under paragraphs (d) and (e) of Sec. 391.23 from each previous
employer, or documentation of a good faith effort to contact them. The
record must include the previous employer's name and address, the date
the previous employer was contacted, and the information provided about
the driver.
(c)(1) The record for a driver who is hired must be retained for as
long as the driver is employed by that motor carrier and for three
years thereafter.
(2) The record for a driver who is not hired must be retained for
one year.
(d) A motor carrier shall make all records and information in this
file available to an authorized representative or special agent of the
Federal Motor Carrier Safety Administration or an authorized State or
local enforcement agency representative, upon request or as part of any
inquiry within the time period specified by the requesting
representative.

Issued on: July 11, 2003.
Annette M. Sandberg,
Acting Administrator.
[FR Doc. 03-18137 Filed 7-16-03; 8:45 am]

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