[Federal Register: March 30, 2004 (Volume 69, Number 61)]
[Rules and Regulations]
[Page 16683-16722]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30mr04-20]
[[Page 16683]]
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Part III
Department of Transportation
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Federal Motor Carrier Safety Administration
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49 CFR Parts 380, 390, and 391
Safety Performance History of New Drivers and Minimum Training
Requirements for Longer Combination Vehicle (LCV) Operators and LCV
Driver-Instructor Requirements; Final Rule
[[Page 16684]]
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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
Safety Performance History of New Drivers
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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SUMMARY: The Federal Motor Carrier Safety Administration amends the
Federal Motor Carrier Safety Regulations (FMCSRs) to specify: The
minimum driver safety performance history data that new or prospective
employers are required to seek for applicants under consideration for
employment as a commercial motor vehicle (CMV) driver; where, and from
whom, that information must be sought; and that previous employers must
provide the minimum driver safety performance history information. This
action will enable prospective motor carrier employers to make more
sound hiring decisions of drivers to improve CMV safety on our nation's
highways.
EFFECTIVE DATE: April 29, 2004.
FOR FURTHER INFORMATION CONTACT: Mr. David Goettee, (202) 366-4097,
Office of Policy, Plans and Regulation, FMCSA, 400 Seventh Street, SW.,
Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Outline
Background
Summary of the NPRM
Summary of the SNPRM
Discussion of Comments to the SNPRM
General Support and Opposition
Timetable To Obtain Safety Performance History for New Drivers
Prospective Employer Responsibilities
Previous Employer Responsibilities
Applicants--Driver Rights
Access to Data
Rejection Rate and Cost/Benefits
Fees
Miscellaneous
Rulemaking Analyses and Notices
Regulatory Evaluation: Summary of Benefits and Costs
Background
Current Sec. 391.23 of Title 49 of the Code of Federal Regulations
(CFR), ``Investigations and Inquiries,'' sets forth each motor
carrier's responsibilities to inquire into the driving record and
investigate the employment history of each prospective new driver. The
investigations are to obtain the driver's employment history from the
driver's previous employers \1\ during the preceding three years. The
inquiries are to obtain the driver's driving records from each State in
which the driver held a motor vehicle operator's license or permit
during the preceding three years.
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\1\ As noted below, FMCSA's definition for the term ``previous
employer'' includes a current employer of the driver applicant.
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These investigations and inquiries must be completed within 30 days
of hiring the new employee, or the employer must have documentation of
a good faith effort to complete them. Currently, there is no
specification in the FMCSRs for what minimum information must be
investigated, nor is there a requirement for previous employers to
provide that information to prospective motor carrier employers when
requested. Consequently, many former employers decline to respond to
employment investigations, while others--for fear of litigation--merely
verify that the driver worked for the carrier and provide the driver's
dates of employment.
The Hazardous Materials Transportation Authorization Act of 1994
was signed into law on August 26, 1994 (Pub. L. 103-311, 108 Stat.
1677) (HazMat Act), partly codified at 49 U.S.C. 5101 through 5127.
Section 114 of the HazMat Act directed the Secretary of Transportation
(Secretary) to amend Sec. 391.23 to specify the minimum safety
information to be investigated from previous employers as part of
performing the required safety background investigations on driver
applicants. Section 114 of the HazMat Act requires a motor carrier at
minimum to investigate a driver's accident record and alcohol and
controlled substances history from all employers the driver worked for
within the previous three years. All previous employers are required to
respond to the investigating employer within thirty days of receiving
the investigation request.
The agency published a Notice of Proposed Rulemaking (NPRM) for
implementing driver safety performance history regulations in the
Federal Register on March 14, 1996 (61 FR 10548) and a Supplemental
Notice of Proposed Rulemaking (SNPRM) on July, 17, 2003 (68 FR 42339).
Summary of the NPRM
In response to the requirement at section 114 of the HazMat Act of
1994, the agency (then the Federal Highway Administration (FHWA),
FMCSA's predecessor agency) issued an NPRM on March 14, 1996. It
proposed changes to 49 CFR part 391 (Qualification of Drivers), with
proposed conforming amendments to parts 382 (Controlled Substances and
Alcohol Use and Testing), 383 (Commercial Driver's License Standards;
Requirements and Penalties), and 390 (Federal Motor Carrier Safety
Regulations; General). The agency proposed under Sec. 391.23 that
motor carriers investigate the following minimum safety information for
the previous 3-year period from all employers who employed the driver
during that time: (1) Hours-of-service violations that resulted in an
out-of service order; (2) accidents as defined under 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 make an inquiry for a
driver's driving record(s) from the State(s) was retained. In addition,
to harmonize the proposed Sec. 391.23(e) with then current alcohol and
controlled substances regulations under Sec. 382.413, the agency
proposed the conforming amendment that the motor carrier must obtain
the driver's written authorization to investigate the required alcohol
and controlled substances information. Current and former employers
will be required to respond to an investigating employer within 30 days
of receiving an investigation request. The investigating motor carrier
would have to afford the driver a reasonable opportunity to review and
comment on any information obtained during the employment
investigation, and would have to inform the driver of his/her right to
review the investigation information received at the time of
application for employment. Conforming changes were also proposed to
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 required investigation of
accident information by prospective employers by expanding a source of
accident data that was already being collected and maintained by motor
carriers for other purposes.
When the NPRM was published in 1996, FMCSA's alcohol and controlled
[[Page 16685]]
substances regulations (codified at 49 CFR part 382) required employers
to investigate: (1) Alcohol tests with a result of 0.04 or greater
alcohol concentration, (2) verified positive controlled substances test
results, and (3) refusals to be tested. Section 382.413(a)(2) then
allowed a previous employer to pass along alcohol and controlled
substances test information received from other previous employers (as
long as the information covered actions occurring within the previous
two-year period). Under then Sec. 382.413(b), if an employer found
that it was not feasible to obtain the alcohol and controlled
substances information prior to the first time a driver performed a
safety-sensitive function for the employer, that employer could only
continue to use the driver in a safety sensitive function for up to 14
calendar days. After that time period, the employer could not use the
driver in a safety-sensitive function unless the requisite information
was obtained, or the employer documented having made a good faith
effort to obtain it.
In its 1996 NPRM, the agency also proposed numerous conforming
amendments to expand the type of alcohol and controlled substances
information that should be sought under 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 another DOT agency, and (2)
failed to undertake or complete a SAP's rehabilitation referral
pursuant to Sec. 382.605 or pursuant to the alcohol or controlled
substances regulations of another DOT agency.
Beyond incorporating the HazMat Act requirements into part 382, the
violations enumerated in Sec. 382.413 would also have been included in
the alcohol and controlled substances regulations of ``all DOT
agencies.'' The FHWA believed that some drivers might apply for
positions that require driving a CMV after having violated the alcohol
or drug use prohibitions of another DOT agency. Therefore, the agency
included a requirement for an employer to investigate information from
all past employers for which a driver had worked in a position covered
by the alcohol and/or drug prohibitions and testing requirements of
another DOT agency. That could ensure that persons applying for
positions that involved operating a CMV would have all of their
relevant records of violations investigated. It would also have ensured
that a SAP evaluated persons who test positive, and that violators
completed a recommended rehabilitation program before returning to
perform safety-sensitive functions.
The proposed revision to Sec. 382.413(a)(2) making it a
requirement to pass along alcohol and controlled substances information
received from other previous employers, when responding to a
prospective employer's investigation required by then Sec.
382.413(a)(1), was previously incorporated into the FMCSRs by a
technical amendment published in the Federal Register on March 8, 1996
(61 FR 9546). However, because it was later determined that change to
Sec. 382.413(a)(2) constituted a substantive change, which should have
been subject to public notice and comment before becoming a final rule,
the agency included it in the March 14, 1996 NPRM. It was also
subsequently included in the notice and comment that led to revision of
part 40 in 2000.
In a related conforming amendment proposed to then Sec. 382.405,
disclosure of the information pursuant to then 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 Sec. 382.413(b), the agency proposed
extending the time period a new employer would be allowed to use a
driver in a safety-sensitive function without having received the
requisite alcohol and controlled substances information from 14 days to
30 days. After 30 days, the employer would have been prohibited from
continuing to use the driver to perform safety sensitive functions
without having received, or documented a good faith effort to obtain,
the driver's alcohol and controlled substances history.
Summary of the SNPRM
Comments received on the NPRM were summarized in the SNPRM. One
significant issue was concern on the part of motor carriers that they
would be subjected to considerable costs through litigation if they
furnished background information and it was used to deny employment to
drivers. In section 4014 of the Transportation Equity Act for the 21st
Century (TEA-21) (Pub. L. 105-178, 112 Stat. 107, 409, (June 9, 1998)),
Congress created a limitation on liability to protect motor carriers,
their agents and insurers from being found liable because they supplied
and used driver safety performance history records in the hiring
decision process, but also established restrictions intended to protect
the rights of drivers and their privacy from misuse of such
investigative information.
Another significant concern was that the proposal would impose
significant new recordkeeping and reporting burdens on previous motor
carriers, especially small entities. Commenters, including the Small
Business Administration (SBA), requested that the agency include
considerably more discussion of possible burdens to foster more
informed comments from the public.
FMCSA responded to the requirements of section 4014 of TEA-21, now
codified at 49 U.S.C. 508, and the requests to provide more discussion
of the possible burdens on previous employers. The agency published an
SNPRM on July 17, 2003 (68 FR 42339). The FMCSA revised the proposals
through the SNPRM to include the new employer liability limitation and
driver protections mandated by section 4014 of TEA-21. It also refined
the safety performance history data list of items prospective employers
must request for new applicants in response to comments to the NPRM,
and related changes to agency alcohol and controlled substances
regulations made by rulemakings since the 1996 NPRM. In addition, an
enhanced regulatory flexibility analysis, Paperwork Reduction Act
analysis, and a detailed regulatory evaluation required by the new
designation as a significant rulemaking, were added addressing comments
to the docket from the SBA and others.
The SNPRM specified minimum safety performance history data that a
motor carrier must investigate from previous employers under the
proposed Sec. 391.23(d) and (e). It differed from the NPRM by: (1)
Refining the list of what information is to be investigated from
previous employers, (2) establishing employer liability limitation for
providing and using the driver safety performance history information,
(3) clarifying drivers' rights to review, correct, or rebut information
provided, (4) providing enhanced Regulatory Flexibility Act and
Paperwork Reduction Act analyses, (5) providing a detailed Regulatory
Evaluation, and (6) dropping conforming amendments to part 382 because
they were previously addressed under separate rulemakings. The SNPRM
provided 45 days for public comment, which closed on September 2, 2003.
Discussion of Comments to the SNPRM
As of October 1, 2003, the FMCSA had received 38 written comments
on the SNPRM. Commenters include motor carriers, corporations,
associations, individuals, an insurance company, a
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union, and a public interest organization.
General Support and Opposition
Fifteen commenters including motor carriers, associations, public
interest groups, and a union generally support the SNPRM and state that
the proposed rule is a long overdue step in the right direction.
Many of those same commenters, and others, criticize various
proposals in the SNPRM. For example, American Trucking Associations,
Inc. (ATA) writes--
Generally, there is consensus [among their membership] that the
proposal to amend the Federal Motor Carrier Safety Regulations
(FMCSRs) to require previous employers to respond to employment and
safety history inquiries will be beneficial and will enhance the
ability of motor carriers to obtain specific, objective information
on important aspects of prior safety performance of driver
applicants beyond what is now generally furnished. * * * Despite our
general support, the intended safety gains will not be realized
unless several fundamental changes are made in the proposed rule.
The opposition to the proposals set forth in the SNPRM generally
center around the process for obtaining driver safety performance
history information, the limited liability of employers, the burden
placed on motor carriers to provide and obtain the employee
information, and FMCSA's cost/benefit analysis. For example, Con-Way
Transportation Services (Con-Way) comments that the rule would ``delay
the hiring of drivers, increase paperwork and [administrative burdens]
with little or no benefit'' and ``[t]he cost assumptions made by the
FMCSA are insufficient.'' In addition, one individual writes that the
burden should not be on the motor carriers to enforce alcohol and
controlled substances rules, but rather on the State to suspend a
driver's license.
Owner Operator Independent Drivers Association, Inc. (OOIDA) also
states that ``The requirements for motor carriers to investigate the
safety background of truck drivers as part of the hiring process has
always been a good idea in theory but a dubious practice under the
FMCSA rules.'' OOIDA continues, ``Beyond a carrier's duty to determine
whether a driver is qualified under the rules to drive a truck, the
existing rule does not require a carrier to take any particular action
or make any particular decisions based on the driver information it
receives.''
OOIDA also expresses a unique concern to this proposed rule. OOIDA
comments that--
It is important for the FMCSA to create rules that are fair on
their face and comport with the legal rights and responsibilities of
the parties under the law. But FMCSA should also keep in mind that
professional drivers have little or no bargaining power with motor
carriers. Carriers set the driver's agenda through every step of the
hiring process and during the length of their relationship. Drivers
who do not accede to a carrier's demands, no matter what they are,
usually face one result, termination. Drivers who try to assert
their rights, including the kind of rights proposed in this rule,
are told to be quiet if they want to keep their job.
FMCSA Response: The FMCSA appreciates the thoughtful comments and
many specific suggestions received from commenters on both the NPRM and
SNPRM. As discussed under the following topics, the FMCSA has carefully
considered these comments and has incorporated many of the suggestions
into the final rule.
Timetable To Obtain Safety Performance History for New Drivers
Several commenters discuss the timetable for prospective employers
to obtain safety performance histories for driver applicants outlined
in the proposed rule. Those commenting from the perspective of being a
prospective hiring motor carrier commonly suggested reducing the
allotted time. Those commenting from the perspective of being a
previous employer providing driver safety performance history
information, commonly suggested increasing the allotted time.
Several commenters are opposed to the overall length of time the
proposed rule, in their view, would permit for obtaining, providing,
and refuting employee history information. Under the proposed rule,
past employers would have 30 days to respond to prospective employers'
investigation requests. There are up to two additional days for
providing copies of the investigations to a driver wanting to review
his or her record, and possibly another 30 days for the rebuttal
process. Truckload Carriers Association (TCA) states that ``assuming
that FMCSA intends for the prospective employer to delay its hiring
decision pending the running of the appeal time, it would be possible
under the proposed rule for carrier hiring decisions to be forced to be
delayed for as long as sixty (60) days.''
The length of time, write other commenters, forces motor carriers
to hire drivers conditionally. As Con-way writes, ``most carriers,
would not want to hire someone until the investigation is complete.
Hiring a driver and then terminating his employment after receiving
information from previous employers is not an acceptable practice.''
Another general concern with the time allowed to obtain a driver's
safety performance history is that such a delay in the hiring decision
process will compel drivers to look for jobs outside the industry.
Con-Way recommends an alternative timetable. Con-Way suggests a 5/
5/2/5 business day structure where: (1) The prospective employer has
five business days to request the driver safety performance history
investigation data, (2) the previous employer has five business days to
respond to the request for information, (3) the applicant must send
corrections to the previous employer within two business days, and (4)
the previous employer must respond to the request for corrections
within five business days.
FMCSA Response: Because this is a rather complex process with
numerous possibilities, each component of the time line is discussed
below in detail as a separate topic. FMCSA has carefully considered
these comments and has incorporated many of the suggestions into the
final rule, while balancing the need for large truck and bus safety on
our nation's highways.
30-Day Investigation Period (Sec. 390.15 and Sec. 391.23 (g))
Seven commenters answered from the perspective of a hiring motor
carrier and recommend reducing the time period allowed for previous
employers to respond to requests for new driver safety performance
history information. One of those commenters proposes that the response
time period be ten days. Most of those seven commenters suggest
reducing the time period allowed for the investigation from 30 days to
five days.
Commenters cite various reasons for recommending the reduction in
response time. For example, the TCA explains from the perspective of
the truckload sector, ``the trucking industry has been experiencing a
driver shortage for years and this shortage is not expected to end any
time soon. Because of the shortage, carriers have a critical need to be
able to screen prospective drivers in the shortest time possible.''
Commenters express concern that the length of time would force some
drivers to look for employment outside the motor carrier industry. In
addition, Consumer Energy remarks, a lesser amount of time ``should be
ample time to gather information that would already be assembled in
order to not delay a potential employer's hiring decision.'' Finally,
commenters express concern that the length of time will force
conditional hiring of drivers while the process is completed. As TCA
explains,
[[Page 16687]]
A major safety drawback of the 30-day time frame proposed is
that many carriers will find themselves being forced to hire drivers
on a conditional basis instead of waiting as long as thirty days to
receive and review the required information beforehand, only to
later find out that one or more of the drivers they hired should not
have been hired because of the safety risk they pose. Clearly, such
an outcome unnecessarily puts the public at risk and could easily be
prevented if the 30-days were reduced to five.
The International Brotherhood of Teamsters (IBT) offers no
objection to reducing the time period as long as employers can provide
accurate information in compliance with the regulations in that time
frame.
Two commenters answered from the perspective of a previous employer
providing information. One recommends increasing the time period for a
previous employer to respond. This commenter suggests increasing the
time period to 60 days in order to reduce the burden on small
businesses. Another commenter proposes a 15-day hardship extension if
the prospective employer agrees.
FMCSA Response: The length of time allowed for previous employers
to respond to an investigation is specified in the HazMat Act as within
30 days. Although FMCSA could specify a shorter response time, the
agency is cognizant that the majority of motor carriers that will now
be required to provide this information for the first time are small
businesses. FMCSA believes that the implied 30 days in the existing
regulation for provision of this data continues to be the most
considerate for the majority of impacted entities. The regulation at
Sec. 391.23 (b) and (c) has for many years said ``* * * must be made
within 30 days of the date the driver's employment begins.'' The text
proposed in the SNPRM for Sec. 391.23(c) was slightly revised to
conform to the language set forth in 49 CFR 40.25(d) as ``* * * must be
completed within 30 days of the date the driver's employment begins.''
FMCSA notes that it has always been up to the motor carrier whether
to immediately employ an applicant and have that person operate a
commercial motor vehicle for that motor carrier during the 30-days
allowed for the motor carrier to obtain the required inquiry and
investigation information. This final rule still leaves that decision
to the motor carrier and its insurer.
Two-Day Response to Driver (Sec. 391.23(i)(2))
The SNPRM proposed that the prospective employer be required to
provide the driver with his or her previous employer-provided records
within two days of the driver's written request, or within two days of
having received the information if the driver request is presented
before the investigation information arrives. Five commenters recommend
increasing the time that a prospective employer has to respond to a
driver's request for copies of the information received from previous
employers. Recommendations were for five, seven, or ten days.
Commenters cite the proposed 2-day requirement as an unreasonable
burden especially during concentrated hiring periods, stating that the
time to retrieve records, especially if records are kept off site, and
limited staff resources are reasons to increase the time period. Most
commenters mention that an increase in this time period should not
unduly disrupt prospective employer hiring operations.
One commenter agrees with FMCSA's proposal of two business days for
the prospective employer to provide a copy of the investigative data to
the driver.
FMCSA Response: FMCSA asked whether a longer time period should be
allowed, and suggested 5, 7 and 10 days. Comments to the docket,
especially in regard to small business concerns, appear to generally
favor lengthening the time allowed for a prospective motor carrier to
provide previous employer information to a driver who requests a copy
of that investigation information. Therefore in the final rule FMCSA
has increased the proposed 2 days for that function to 5 days. The
agency believes this will provide carriers a greater degree of
flexibility without detrimentally impacting driver rights.
30-Day Driver Correction and Rebuttal Period (Sec. 391.23(j)(3))
Almost no commenters directly addressed this issue. Two commenters
recommend reducing the time the previous employer has to send the
corrected or rebutted information to the prospective employer from 30
days to 20 days. Another recommends 5 days. The commenters suggest this
change in order to significantly reduce the time both the applicant and
the prospective employer are awaiting a decision on the applicant's
employment.
OOIDA is concerned that drivers have no leverage to get previous
employers to correct driver safety performance history, and a
disgruntled previous employer might deliberately delay responding as
long as allowed, thus leaving the driver unemployed for that period of
time. Both TCA and National School Transportation Association (NSTA)
are concerned about the total time that could elapse before a hiring
decision could be made.
FMCSA Response: The few commenters who addressed this question are
in favor of shortening the time period allowed for the driver and a
previous employer to resolve differences, or include a rebuttal from
the driver in the previous employer's information. There was no
opposition to shortening the time allowed from any of the commenters to
the docket in response to this question in the SNPRM. After reviewing
these comments, FMCSA believes a shorter response period is warranted.
Therefore, the final rule is revised to reduce the proposed 30 days
for a previous employer to respond to a request for correction to 15
days. This still allows the previous employer the time and opportunity
to review the driver's record to determine if the previous employer
agrees the correction is warranted.
The final rule further clarifies that if the driver chooses to
submit a rebuttal, the previous employer has 5 days to forward the
rebuttal to the prospective motor carrier employer and to append a copy
of the rebuttal to any other information in the driver's safety
performance history record. The agency believes that drivers will have
somewhat of a disincentive to submit a rebuttal first, if a correction
is possible. This is because a rebuttal presents a conflicting story to
a prospective motor carrier employer, whereas a correction represents
agreement between the parties involved. Upon receiving a rebuttal, the
previous employer must forward a copy of it to the prospective motor
carrier employer and append it to the driver's safety performance
history record.
There are two scenarios that could occur when the driver applicant
receives a copy of the previous employers' safety performance history
information. Under the first scenario, the driver could first request a
correction. The previous employer could agree to the correction and
forward the corrected information to the prospective motor carrier
employer within 15 days. However, if the previous employer disagrees
with the driver that a correction is warranted, the previous employer
could decline to correct and notify the driver within 15 days of its
decision not to do so. The driver could then submit a rebuttal, and the
previous employer would have five (5) days to forward the rebuttal to
the prospective motor carrier employer, and include the rebuttal in the
driver's safety performance history record.
Under the second scenario, the driver could simply submit a
rebuttal as a first step, with no request for correction of
[[Page 16688]]
the data. The previous employer would then have five days to forward a
copy of the rebuttal to the prospective motor carrier employer.
Thus, the 30 day time period is reduced to a minimum of 5 days and
a maximum of 20 days. FMCSA believes this responds to commenters
concerns, while not detrimentally impacting the drivers or employers
involved.
Review Time
Under the proposed rule at Sec. 391.23(i)(2), a driver may submit
a written request to the prospective employer to review his or her
safety performance histories received by that motor carrier. OOIDA
suggests that, rather than the driver needing to request his or her
previous employer information to review, the prospective employer
should automatically give the driver a copy of any background
information it receives. OOIDA supports the driver's right to access
his or her record, and believes this recommendation will lead to
quicker corrections, streamline the investigation process, and
eliminate unnecessary burden on the driver to submit a request.
American Truck Dealers Division of the National Automobile Dealers
Association (ATD) states that as proposed, employers would have two
days to provide an employee access to information upon request, and
prior employers would have 30 days to respond to a driver's concerns.
They point out that the rule does not appear to set a time limit for
the driver's review itself. ATD recommends that we allow drivers 3 days
after receipt of requested information to request corrections.
FMCSA Response: In response to OOIDA's point, FMCSA believes it is
important to minimize the cost of regulations. However, it is also
necessary that a reasonable opportunity be provided drivers to review,
correct and rebut previous employer safety performance history
information. Thus, any driver must be able to request that prospective
motor carrier employers provide information received from previous
employers. To minimize the potential for such requests to be frivolous
actions taken by some drivers, FMCSA requires this request to be in
writing. FMCSA believes that it would be overly burdensome for
prospective employers to provide information not requested or
frivolously requested by the driver.
FMCSA can not address ATD's recommendation in this final rule on
setting a limit on how long a driver has to respond to a previous
employer seeking correction or rebuttal, since this is not addressed in
the SNPRM. Moreover, the agency believes this is likely to be self-
regulating, since it is in the driver's interest to request correction
or rebuttal as quickly as possible.
Prospective Employer Responsibilities
3-Year Requirement (Sec. 390.15(a); Sec. 391.23(d))
Under the proposed rule, motor carriers must contact all the
previous DOT regulated employers of the applicant driver from the last
three years. Seven commenters address this requirement. Several
commenters mention the ineffectiveness and paperwork burden of this
requirement. Two commenters state that with the high level of driver
turnover involved in their sector of the industry [truckload],
requesting information from prior employers in the last three years
could involve numerous inquiries. Also, the potential for gaps in
employment history poses problems in complying with this requirement.
Another commenter mentions the paperwork burden on small businesses and
that this requirement forces motor carriers to keep employment records
longer than the six months now required for hours-of-service record of
duty status logs.
A few commenters discuss more specifically the requirement that
three years of employment history must be investigated. One commenter
recommends that all DOT modes be consistent in the time period required
for the background investigations. For example, the length of
background investigations is specified as 2-years in part 40, and 3-
years in part 391. Another commenter submits that no requirement in the
rules should create longer retention periods than those currently
applicable. For example, records relating to the collection process for
alcohol and controlled substances testing programs must be retained for
two years (Sec. 382.401(b)(2)), whereas records of negative and
cancelled controlled substances test results must be maintained for a
minimum of one year (Sec. 382.401(b)(3)). Finally, commenters suggest
that only the immediate former employer needs to be contacted or that a
valid commercial driver's license should be sufficient evidence of a
prospective employee's driving record.
OOIDA expresses concern that if ``FMCSA requires former carriers to
turn over all safety employment history in the carrier's possession,
then in many instances it will be requiring more than three years of
records to be transmitted.'' OOIDA continues by saying that ``FMCSA
does not give guidance in the SNPRM as to whether the previous carrier
should be required to delete any information older than three years
from its own records or from the records it received from other
carriers.'' OOIDA is concerned that older information would be less
reliable and less accurate.
AT&T observed that driving is a minor part of at least some of
their jobs. They asked whether the inquiries and investigations must be
made for every job applicant or only for candidates who are actually
being extended a job offer, and when must they be made?
FMCSA Response: The requirement to investigate all former employers
of the past 3 years is specified in the HazMat Act. FMCSA therefore has
no latitude, and must specify in the final rule that the background
investigation cover the prior three years. The problem with possible
gaps in employment history based on this process is well known. It
includes former employers that have gone out of business, as well as
those not listed by the driver applicant when applying for a job. The
alcohol and controlled substances regulations at 49 CFR 40.25(c) and
40.333(a)(2) attempt to mitigate such possible gaps in previous
employer information by requiring an employer to retain for 3 years any
Sec. 40.25(b) specified information that any previous employer
furnished and to pass the most recent 2-years of it along to
prospective employers performing an investigation of the driver
applicant.
The retention period specified for data in the driver qualification
file in Sec. 391.51(d) has been 3-years since at least 1971. The data
retention period specified for hours-of-service records of duty status
logs in Sec. 395.8(k) has been 6-months since 1982. No changes to
these retention periods were proposed in the SNPRM, and therefore none
are being made in this final rule.
Parts 40 and 382 currently specify making investigations to
previous employers for a minimum of 2-years regarding alcohol and
controlled substances data. However, the HazMat Act requires all safety
performance history investigations, including those for alcohol and
controlled substances information, to be made to all employers of the
driver for the previous three years, which is what was proposed in the
SNPRM. A motor carrier that is in compliance with the new 3-year
investigation requirement in Sec. 391.23 will automatically be in
compliance with the 2-year background investigation requirements of
parts 40 and 382.
The 2-year requirement for data retention found at Sec.
382.401(b)(2) refers to information about the processes used
[[Page 16689]]
by the employer to collect the alcohol and controlled substances
information, not the actual results that are considered driver safety
performance history information. The correct reference for data
retention about positive driver test results would be Sec.
382.401(b)(1), and it specifies 5 years as the minimum retention time.
The one year requirement for data retention found at Sec.
382.401(b)(3) refers to negative test results and canceled tests.
However, FMCSA believes the thrust of the comments is focused on
the background time period that must be investigated. They are correct
that Sec. 40.25(b) specifies investigating employers from the previous
2-years. Since the HazMat Act specifies this investigation must be for
3-years, motor carriers will now be required to investigate one
additional year of alcohol and controlled substances background driver
safety performance history information than entities regulated by other
DOT modes.
In order to clarify when the 3-year time period begins, text for
the final rule is modified for Sec. 391.23(e) to define that the three
years to be investigated and reported on begins from the date of the
employment application. This is the point of reference used in parts 40
and 382, and such text already exists in the proposed text at Sec.
391.23(d) for accident data. In regard to OOIDA's concern about more
than 3-years of background data being provided by previous employers,
FMCSA believes most employers where allowed will choose not to retain
or provide data older than the 3-year minimum requirement as a means of
reducing their costs.
The requirements in parts 40 and 382 encourage the prospective
employer to complete the investigations before allowing the driver to
perform safety sensitive functions for that employer. However, just as
in part 391, they do not require the employer to complete the
investigations until 30 days from the date the driver's employment
begins. Thus, an employer would be free to screen and test the driver
in any way the employer chooses prior to performing the investigations
required by this rulemaking, including hiring the driver. However,
after 30 days from beginning employment, the employee may not be used
to operate a CMV unless the responses to the investigation requests are
received and placed in the appropriate file, or documentation of a good
faith effort to obtain such data is placed in that file.
In regard to the question by AT&T, FMCSA is aware there are
different screening processes used by different employers covered by
the FMCSRs. As pointed out by AT&T, some employers physically see and
screen the driver before deciding to perform the background inquiries
and investigations required by Sec. 391.23 under this final
rulemaking. Some begin the Sec. 391.23 inquiry and investigation
process immediately for all records available based on phone
applications for each applicant before seeing them.
Companies absolutely may perform substantial screening of potential
employees on their own company job criteria that forms the major
portion of the job responsibilities. The requirement contained in this
final rule merely requires the company to complete the inquiries and
investigations required by Sec. 391.23 on all drivers that will
operate a CMV within 30 days of that employee being hired. Such drivers
have invested considerably in acquiring skills sufficient to qualify to
work for companies. A similar pattern applies to a number of employers
covered by the FMCSRs, but whose primary business requires the employee
to have skills in addition to being a driver, plumber, electrician,
etc. All such employees have much more at stake to preserve their
professions, and may be less likely to have used alcohol or controlled
substances or been involved in numerous accidents. It would be good
business sense for such companies to only perform inquiries and
investigations required by Sec. 391.23 after they have determined the
applicant passes all their other company screening requirements.
Accident Information (Sec. 391.23(d)(2))
The HazMat Act requires prospective motor carrier employers to
investigate accident data for the prior three years, and for previous
motor carrier employers to provide all accident data for that driver
for the previous three years from the date of the application. As
pointed out in the SNPRM, some process is needed to enable a smooth
transition from the current regulation's one year retention requirement
to the three year retention period required by the HazMat Act.
The SNPRM proposed a phased process whereby beginning on the
effective date of the final rule, motor carriers would be required to
retain all accident information then retained in their accident
registers, plus all new accident information, for three years. This
adds a requirement of two additional years of retention to the current
one year retention requirement. Thus, the retained accident data will
grow from the current one year of retained data to three years over
time.
No comments were received on that phased approach to data
retention. Therefore, the proposal as presented in the SNPRM is
included in the final rule.
TCA states that the proposed Sec. 391.23(d)(2) would require past
employers to report and prospective employers to review the specific
data related to a driver's accident record, as specified at Sec.
390.15, for the preceding three years, and include it in the driver's
investigation history file. TCA believes that, while such accident
information may be relevant to FMCSA and clearly should be maintained
by carriers, such information is not at all relevant to a hiring
decision and should therefore not be required.
OOIDA is concerned about the definition of ``accidents.'' OOIDA
states, ``It is the experience of OOIDA members that the term
``accident'' is sometimes used loosely in the trucking industry. * * *
This casual use of the word `accident' leaves drivers' safety histories
vulnerable to interpretations that are inaccurate and could
unreasonably damage their job prospects.'' OOIDA suggests referring to
the definition of ``accident'' as defined in Sec. 390.5 to help avoid
this problem.
Other commenters express concern about the accident data itself.
Current Sec. 390.15(b)(1) lists six items that must appear on the
accident register. ATA believes that two items from the accident
register, driver's name and date of accident, along with two data
elements that are not in the accident register, (1) any traffic
citation(s) related to each accident and (2), if available, whether
each accident was determined to be ``preventable'' or ``non-
preventable.'', are necessary to make an informed hiring decision.
In contrast, J.B. Hunt expresses considerable concern about the
amount of effort that would be required to deal with driver protests
about carrier attribution of ``preventability.'' It says ``We deal with
requests daily to change our attribution of preventability of accidents
on driver's records. The burden to maintain all of the rebuttals and
explanations on why every accident should be non-preventable would, in
and of itself, be extremely burdensome.''
FMCSA Response: The HazMat Act requires previous employers to
report 3-years of accident information to prospective employers. The
NPRM, SNPRM and this final rule all use the existing definition of
accident as contained at 49 CFR 390.5. The only changes proposed in the
SNPRM and finalized in this rule to Sec. 390.15 are for accident data
retention to allow a phase-in period from the current one year to the
required three years of accident data
[[Page 16690]]
retention and provision. If employers choose to share information about
minor accidents not included in the definition at Sec. 390.5, there is
no prohibition on them doing so. However, for purposes of making the
minimum requirement clear, the phrase ``as defined by Sec. 390.5 of
this chapter'' is added to Sec. 391.23(d)(2) in the final rule.
Regarding ATA's comments to change the data items/elements recorded
in the existing accident register and reported in response to requests
for information, FMCSA believes this would represent a substantial
change in the existing definition of accident data, and is outside the
scope of this rulemaking. Comments to the docket, very explicitly by
J.B.Hunt, point out that attribution of ``preventable'' and ``non-
preventable'' contributes to drivers contesting the carrier's accident
information. Thus, FMCSA has decided not to make revision to the
definition of accident as part of this final rule.
Standardized Forms and Instructions (Sec. 391.23(f))
The SNPRM proposed a conforming amendment in Sec. 391.23(f) that
the prospective employer provide the previous employer with the
driver's written authorization to obtain his or her safety performance
history information, often via a release form. Online Employment
Verification Services (OEVS) states that the problem of releasing
alcohol and controlled substances information is magnified because
prospective employers do not know the proper verbiage to include on the
driver authorization release. According to OEVS, at least 10% of the
requests do not meet the requirements of DOT for driver authorization.
In addition, up to 75% are vague or difficult to interpret as to
whether they comply, resulting in slower turn around time for the
prospective employer to receive the requested information. OEVS
suggests that DOT provide standard verbiage for requestors to include
in the driver authorization form they use. This would allow 3rd party
providers, such as OEVS and previous employers, to process such
requests without hesitation, eliminating the time and cost required to
scrutinize and analyze whether the correct details are contained within
the document, thus increasing the percentage of successful requests and
shortening the response times.
Also, commenters suggest that the FMCSA provide outreach and
standard instructions along with standardized forms. For example,
Petroleum Marketers Association of America (PMAA) ``believes that the
way FMCSA issued its new hours-of-service regulation is an appropriate
model of how to publicize any new regulations on conducting safety
background checks. The brochures, pocket cards, etc., explaining the
hours-of-service rule were very beneficial to PMAA members.''
FMCSA Response: The defining procedures for what must be
investigated and what must be reported for alcohol and controlled
substances are spelled out in parts 40 and 382. This rule merely adds
conforming amendments for that requirement to part 391. The
specification of what must be included in the driver's authorization
for the previous employer to release the alcohol and controlled
substances data is found at Sec. 40.321(b). In order to clarify what
authorization information must be provided, a reference to Sec.
40.321(b) is added in this final rule at Sec. 391.23(f). FMCSA notes
that entities like OEVS are free to provide their clients with a form
meeting the requirements of Sec. 40.321(b).
Record of Compliance
The proposed rule would require employers, both prospective and
previous, to maintain certain employee records. Petroleum
Transportation & Storage Association (PTSA) urges the FMCSA to drop the
1-year record retention requirement for non-hired drivers. PTSA
believes that this provision would make prospective employers a
depository of information that is completely unrelated to their
responsibility for maintaining and providing employee records under the
FMCSRs. In addition, PTSA argues that there is no need for a
prospective employer to keep such records, since the very same
information is already on file with the driver's previous employer, and
that the potential liability involved with the management of non-hire
driver information is far too great when weighed against any
discernable regulatory benefit that may result. Finally, PTSA stresses
the burden for small businesses of maintaining records. Reusable
Industrial Packaging Association (RIPA) agrees with PTSA's arguments
and also does not believe it serves any purpose to require employers,
who decide against hiring a driver applicant, to maintain for a year
any information received from previous employers.
Two commenters specifically discuss the documentation requirement
at Sec. 391.53(b)(2) for the prospective employer to show that a
``good faith'' effort was made to contact previous employers. National
Ready Mixed Concrete Association (NRMCA) explains that good faith ``is
a vague term, open to many interpretations.'' It asks for specific
examples of ``good faith'' efforts to help eliminate any question about
being in compliance. The other commenter states that the ``current
system of ``good faith'' checks is absolutely abysmal'' and that any
system of contacting former employers should be administered by a
pseudo-governmental agency or contractor.
FMCSA Response: FMCSA proposed the one year retention of background
investigation information for all drivers as part of its desire to
establish an enhanced capability for enforcement of these requirements.
However, we are persuaded that eliminating this requirement would do no
harm. If the driver is not hired, it is not relevant to safety concerns
whether the prospective employer performed the investigations and
inquiries required by Sec. 391.23. Further, if the driver applies and
is hired by another motor carrier, that employer is required to have
performed the required investigations and inquiries and to have placed
the information received in the appropriate file, or documented a good
faith effort to have done so. Any additional data that may have been
gained regarding previous employers who are failing to provide the
required information can be gained via the complaint process, as
recommended in Sec. Sec. 391.23(g)(3) and 391.23(j)(4).
With regard to NRMCA's request for examples of good faith efforts,
FMCSA notes that this term has been used in the FMCSRs for a number of
years. The agency believes that the most appropriate guidance it can
give in the context of this rule is that employers document in the
driver investigation history file their efforts to comply with the
requirements to obtain the background investigation information. This
could also include documentation of having reported previous employers
to FMCSA using the procedures at Sec. 386.12 that failed to provide
the required safety performance history information.
Further, FMCSA believes the environment for verifying the ``good
faith'' requirement will be substantially changed by this rule. There
is no current requirement for previous employers to respond to
investigations. Establishment of this requirement by this final rule
requires previous employers to furnish the information and keep records
of having done so. This will make it possible to corroborate whether a
motor carrier has contacted a previous employer. Thus, the substantial
change in the reporting and recordkeeping requirements of previous
employers will in turn create the ability to verify
[[Page 16691]]
whether there was a good faith effort made by prospective motor
carriers to obtain this data.
In regard to assigning the responsibility for administering driver
safety background checks to a separate entity, the HazMat Act
specifically requires the prospective employer, or perhaps their agent,
to make the investigations to the previous employers, or their agent.
Previous Employer Responsibilities
Requirement To Respond
Several commenters express concern that the proposed rule does not
impose a requirement on the previous employer to respond to the
prospective employer's request. Most commenters on this issue state
that there is no burden of compliance placed on the previous employer.
Coach USA explains that in their experience, ``many previous employers
fail to respond because they are not required to keep a record as such
and do not fear enforcement.'' In contrast, DAC Services recommends
that--
The record keeping requirements should be consistent between
Parts 40.25 and 391.23. If the FMCSA has found part 40.25(g) useful,
it might prove useful under the requirements of 391.23. On the other
hand, if 40.25(g) has not been beneficial, it should not be required
under 391.23 and the 40.25(g) requirement should be revisited, as it
requires considerable record keeping efforts on the part of motor
carriers.
Although the proposed rule provides previous employers with
liability ``limitation'' regarding their response to investigations,
Coach USA points out that it does not allow for any means to enforce
non-compliance by previous employers that choose to ignore such
requests. Coach USA believes that this rule will be ineffective unless
it includes an unequivocal requirement to respond for previous
employers and to maintain corresponding records.
Two commenters are specifically concerned that the rule does not
place liability with former employers that do not respond to a
prospective employer's request for information within 30 days. In
addition to issuing the rule, one commenter suggests that FMCSA educate
employers, provide standard forms (possibly via the internet), and
otherwise eliminate every possible reason for not supplying a valid
response.
Five commenters sought clarification of the rule's enforcement
mechanism. For example, Consumer Energy states, ``The SNPRM suggests
taking enforcement action, but does not provide details of the action,
when an employer does not provide the required information in the
allotted time.'' Advocates for Highway and Auto Safety (AHAS)
* * * strongly supports this rulemaking action, but we are
concerned that the agency does not plan any targeted oversight
actions to ensure that prospective employers are requesting safety
performance information on applicant drivers or that current or
previous employers are complying with requests for the appropriate
information.
AHAS states that the agency needs to emphasize, with specific action
items, how it intends to publicize and educate the motor carrier
community about its new responsibilities under this proposed
regulation, exactly what oversight actions it will carry out to ensure
very high rates of compliance, and specifically what enforcement
actions will be brought against non-complying motor carriers.
Dart Transit Company (Dart) comments that the enforcement
procedures, if a carrier does not respond, are unclear. Dart asks,
``What penalty or penalties will be imposed and how will enforcement be
achieved and by whom?'' OOIDA agrees that ``if FMCSA expects carriers
to comply with these rules, it needs to consider adopting some kind of
enforcement mechanism, including monetary penalties.'' In addition,
Dart believes some direction should be adopted in terms of the
inquiring carrier. For example, Dart asks, ``What is an inquiring
carrier obligated to do if a response is not received?'' OOIDA also
remarks that whereas a driver who does not authorize release of his or
her alcohol and controlled substances data cannot be hired, there are
no penalties or consequences for carriers that fail to abide by this
proposed rule. Finally, these commenters identify enforcement as an
important issue and obstacle to the success of this rule.
Also, two commenters state that there is no requirement for
previous employers to document or even maintain a log of to whom
information about a previous employee was furnished. The commenters
believe that, without this requirement, many previous employers may
fail to respond because they are not required to keep a record as such
and do not fear enforcement.
However, one commenter, concerned with the additional
administrative burden, disagrees with the other commenters. It prefers
that the FMCSA allow the industry some flexibility in responding to
inquiries about the performance of past employees without mandating
completion and retention of additional forms, especially if the driver
retires, leaves the industry, or otherwise does not seek further
employment.
FMCSA Response: The conforming requirement in this rule for
providing the required information to the prospective motor carrier
employer and keeping a record of having done so, especially for alcohol
and controlled substances, is based on the provisions found at Sec.
40.25(g). That provision states that a previous employer must maintain
a written record of the information released, including the date, the
party to whom it was released, and a summary of the information
provided. Thus, this previous employer recordkeeping provision is
already contained in the proposed driver safety performance history
requirements. Nonetheless, as clarification to avoid any possible
confusion in the future, the language contained at Sec. 40.25(g) is
also added to the conforming language in the final rule at Sec.
391.23(g)(1).
As with all violations of our regulations, FMCSA may cite and take
enforcement action against carriers that do not comply with our
regulatory requirements. Carriers who fail to maintain the records
required by this rule may be cited and are subject to the fines and
penalties prescribed in Appendix B paragraph (a)(1) to Part 386,
Penalty Schedule; Violations and Maximum Monetary Penalties;
Recordkeeping, which says ``a person or entity that fails to prepare or
maintain a record required by parts 385 and 390-399 of this subchapter,
or prepares or maintains a required record that is incomplete,
inaccurate, or false, is subject to a maximum civil penalty of $550 for
each day the violation continues, up to $5,500.''
FMCSA is aware a number of previous employers covered by
requirements in parts 40 and 382 are currently failing to provide the
information specified at Sec. 40.25(b) and required by Sec. 40.25(h).
Carriers that fail to provide the information required by Sec. Sec.
391.23(g)(1) and 391.23(j) are subject to the fines and penalties
prescribed in Appendix B paragraph (a)(3) to Part 386, Penalty
Schedule; Violations and Maximum Monetary Penalties; Non-recordkeeping
violations, which says ``a person or entity who violates parts 385 or
390-399 * * * is subject to a civil penalty not to exceed $11,000 for
each violation.''
FMCSA has a formal process in place for drivers and carriers that
wish to file a complaint against a person or entity that fails to
comply with the FMCSRs. FMCSA intends for drivers and prospective motor
carriers to inform the agency using the existing complaint process
specified at Sec. 386.12, entitled
[[Page 16692]]
``Complaint.'' This includes previous motor carriers that either fail
to correct their records or include the driver's rebuttal, or who fail
to provide the required information to prospective motor carriers. To
make this clear, the FMCSA has added language to the final rule in
Sec. Sec. 391.23(g) and 391.23(j) pointing out that drivers and
prospective employers should report information about such failures to
comply with these requirements. Complaints about failures to comply
will be investigated and carriers failing to comply will be cited, and
in addition may be subject to civil penalties for other violations
found during a carrier compliance review.
The agency believes inclusion in this rule of the requirement to
record and provide the alcohol and controlled substances data, as well
as accident data, may additionally create a legal liability for
previous employers who fail to provide this data. Previous employers
who fail to provide the required driver safety performance history
information may ultimately be found liable if the requesting motor
carrier hires an unsafe driver without receiving the requested history
and the driver is involved in an accident.
Additionally, FMCSA believes the motor carriers who will choose to
pay little attention to safety performance history information received
and hire drivers with substantial adverse safety performance histories,
likely are the same ones already doing this with driving behavior
traffic conviction information received on the MVR from the licensing
State or such predecessor States. FMCSA is in the process of analyzing
a capability to enable SafeStat to better identify motor carriers who
are systematically hiring drivers with poor driving records, and target
them for a carrier compliance review. This is expected to also help
with identifying motor carriers who continue to hire drivers with poor
safety performance history. A copy of a current updated report on that
analysis is included in the docket as document 85.
To ensure the effectiveness of this rule, FMCSA will undertake a
number of activities, including: (1) Preparing guidance materials for
enforcement of these new requirements; (2) monitoring the level of
complaints received for non-compliance; (3) removing the previously
issued interpretation Question and Answer 1 under Sec. 391.23; (4)
encouraging use of the FMCSA safety violation and commercial complaint
hotline (1-800-DOT-SAFT) and Web site (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://nccdb.fmcsa.dot.gov) for
filing complaints; and (5) assembling a team to develop recommendations
for continued improvements to the program.
With regard to the commenter concerned about recordkeeping
regarding drivers that retire, leave the industry, or otherwise do not
seek further employment as a driver after leaving a previous employer,
there would be no requirement placed on any employer to report
additional information.
Use of Third Party Providers
Two commenters ask FMCSA to add appropriate language to the final
rule to specifically allow third-party providers to obtain driver
safety performance history information for motor carriers. These
commenters believe that third-party providers perform valuable services
for motor carriers, especially during the driver-applicant screening
and hiring process. The commenters state that, as written, the rule
seems to imply that a motor carrier may use a third-party to perform
the required investigations. The commenters believe that the rule
should explicitly allow third parties to obtain information for
prospective employers.
FMCSA Response: The language in the proposed rule does not address
how the prospective motor carrier may obtain information from previous
employers. FMCSA does not believe it is appropriate for it to
specifically endorse commercial companies.
The agency has existing guidance in the form of Question and Answer
2 under Sec. 391.23, indicating that a motor carrier may use a third
party provider to obtain information to meet the inquiry requirements
of Sec. 391.23. Question 2 under Sec. 391.23 says: ``May motor
carriers use third parties to ask State agencies for copies of the
driving record of driver-applicants?'' The answer is: ``Yes. Driver
information services or companies acting as the motor carrier's agent
may be used to contact State agencies. However, the motor carrier is
responsible for ensuring the information obtained is accurate.'' There
is similar guidance under Sec. 391.25. FMCSA is aware that many motor
carriers use third parties to obtain this information for them rather
than directly dealing with many different State driver-licensing
agencies.
The preamble to the SNPRM pointed out that if such a third-party
party is the agent of the motor carrier, it would be covered by the
limited liability implemented by this rule. If the third party is not
the agent of the motor carrier, then it is not covered by these
regulations, but is still operating under the provisions of the Fair
Credit Reporting Act (FCRA) (15 U.S.C. 1681 et seq.) for performing
this function.
The provision by Congress of granting limited liability to agents
of the motor carriers in carrying out the requirements of the HazMat
Act is an opportunity for motor carriers and their agents to take
advantage of such services, but it is not a requirement. The discussion
about whether previous employers may charge fees for providing the
required data, talks in terms of FMCSA encouraging a competitive, open,
free, efficient, market economy approach to management of the fee
issue.
Driver Information To Be Reported (Sec. 391.23(d)(1) and (2))
Several commenters urge FMCSA to clarify and to add details on what
needs to be included in the information investigated about a driver's
safety performance history, and what must be provided. For example,
Qwest Communications International, Inc. (Qwest) recommends that
additional language be added to Sec. 391.23(d)(1) describing the
general information about a driver's employment record that should be
investigated. Qwest proposes that the general information further
identify employment and job responsibilities.
OOIDA agrees and asks FMCSA to revise the description of employee
background information in two ways. First, the rule should limit the
investigation to information directly related to a driver's
qualifications under Federal or State law. Second, the rule should
require that the information reported in safety background
investigations be made with sufficient detail so that an accurate
safety assessment of the driver can be made. OOIDA is concerned that
the broad language of proposed Sec. 391.23(d)(1) could invite the
dissemination of a wide range of non-safety information. In that
section FMCSA would require that a prospective employer investigate
``General information about a driver's employment record.'' OOIDA
believes that this requirement invites any and all information to be
transmitted as part of a driver's safety background. OOIDA asks that
FMCSA be much more specific, by listing the ``facts'' that make up the
general background history that FMCSA proposes be transmitted, such as
date of hire, safety information, and final date of employment.
FMCSA Response: FMCSA agrees that the wording contained in Sec.
391.23(d)(1) of the SNPRM for information the prospective employer is
to request of the previous employer is general in nature. What was
intended for this category is for the prospective motor carrier to
[[Page 16693]]
provide the driver identifying data, such as name, date-of-birth, and
social security number for the driver on whom it is requesting safety
performance history information, and for the previous employer to
provide information about that same driver, such as starting and ending
employment dates and job responsibilities. However, the agency is not
specifying that information in the regulatory text of this final rule,
so that employers have some degree of flexibility in providing such
basic information. FMCSA does not believe that this type of information
will detrimentally impact drivers. All of the information requested in
Sec. 391.23 is in the context of driver safety performance history.
How To Respond Absent Any Data (Sec. 391.23(g))
Section 391.21(g) requires all previous employers to respond to
each request for a driver's record as outlined in the rule. Safe Fleet,
Inc. comments that the proposed rule does not require a response unless
the previous employer has derogatory information to report; however,
the new employer must have a response within 30 days from every
previous employer. Safe Fleet believes the previous employers should be
required to respond in every case.
FMCSA Response: All previous employing motor carriers must respond
to each investigation within 30 days as specified in the HazMat Act.
Responses are required even in the absence of data on accidents, or
alcohol and controlled substances abuse. Accordingly, FMCSA has made
this more explicit in Sec. 391.23(g) of the final rule by adding words
clarifying that a response is required even when there is no accident
or alcohol or controlled substances data, by stating that no such data
is on file.
Designated Contact Persons
Qwest requests that FMCSA include a provision indicating that
employers must designate a person to receive requests for information
from prospective employers and former employees, and clarify when the
proposed time frames for required actions start. Qwest states that it
is a large, national company, which routinely receives correspondence
that is incorrectly or inadequately addressed, thus delaying delivery
to the responsible party by up to several days. Qwest believes that
compliance with time frames for required actions in the rule should be
based on start times that begin when the designated responsible person
within the organization receives the request for action, rather than
when the request may be received by the organization.
FMCSA Response: Each employer is free to provide their contact
information in any way they desire to facilitate this process, such as
on its Website, or perhaps designating an agent.
FMCSA has added requirements in the final rule language at Sec.
391.23(d) for each prospective employer to include information on a
point of contact when requesting this investigative background
information, and for the previous employer to provide similar contact
information on its response for use by a driver who may wish to contact
that previous employer.
FMCSA intends for the previous employer's 30-day response period to
begin when the prospective motor carrier submits the investigation
request to the previous employer or its agent.
Applicability to Current Employer
Three commenters state that the term ``previous employer'' does not
include the current employer. If an individual is currently employed
and is seeking a new position, his or her current employer should be
required to provide the accident history. FMCSA has clearly stated that
previous employers must respond to requests for information under the
new regulations. Unaddressed however, is the issue of whether a company
currently employing a driver must respond to a request from a company
that may be recruiting its driver. Two commenters want the FMCSA to
clarify whether a carrier that currently employs a driver must respond
to a request for information from a prospective employer. A third
commenter recommends that FMCSA require both previous and current
employers to respond to new or prospective employer inquiries.
FMCSA Response: The HazMat Act defines previous employer as any
employer that employed the driver in the preceding 3 years. From the
prospective employer's point of view, a current employer is a previous
employer. In accordance with the HazMat Act definition, FMCSA has added
a definition for previous employer to Sec. 390.5 in the final rule to
clarify that it includes a current employer.
Appending Rebuttal (Sec. 391.23(j)(3))
Under proposed Sec. 391.23(j)(3), if a driver refutes information
from a previous employer, that rebuttal must be appended to, and
provided with, the driver safety performance history information to
each subsequent prospective employer that requests it. Commenters state
that requiring previous employers to maintain rebuttals adds a
significant and unnecessary burden to previous employers. For example,
Coach USA requests that proposed Sec. 391.23(j)(3) be amended to
exclude the last sentence, which requires the previous employer to
append the driver's rebuttal to its file information and to provide the
complete file in any future requests. Coach USA believes that this
specific requirement will place an undue burden on previous employers,
and prejudice any response they may give to prospective investigating
employers. Coach USA considers the fact that the rule allows for an
applicant's rebuttal as sufficient to ensure that previous employers
provide accurate information, should they choose to respond.
J.B. Hunt states that it has a concern with
* * * the provision for requiring motor carriers to maintain and
provide to prospective employers the rebuttals of former drivers
when the information provided by the motor carrier is correct,
complete, and factual. J.B. Hunt terminates many drivers whose only
purpose in life after termination is to make anyone associated with
the carrier miserable. These drivers would likely submit rebuttals
of several hundred pages, just to increase the carrier's costs.
J.B. Hunt further says ``It should not be the previous motor
carrier's responsibility to provide the rebuttal to prospective
employers.''
Two commenters suggest that, in order to keep the process
manageable and to be consistent with the Fair Credit Reporting Act, the
rebuttal should be limited to not more than 100 words.
FMCSA Response: The HazMat Act specifies that the safety
performance history data be requested from the previous employer. The
TEA-21 limitation on liability requires the driver to have an
opportunity to correct the data or rebut it. If the driver determines a
rebuttal is needed, it is necessary for that rebuttal to be provided
each time, along with the data to which the driver does not agree.
Since the data is coming from the previous employer or its agent, it is
necessary for the driver rebuttal information to also come from the
previous employer or its agent. Without this mechanism in place, future
prospective employers would not receive the driver's rebuttal as part
of the information furnished.
FMCSA has not specified a limit for the length of the driver
rebuttal. The agency believes it is important for drivers to have the
opportunity to adequately respond to what they believe is inaccurate
information. Further, the agency has no evidence demonstrating
[[Page 16694]]
that this would be widely abused by drivers.
Applicants--Driver Rights
Applicants Rights (Sec. 391.23 (i), (j), (k) and (h))
Under the proposed rule, the prospective employer must inform the
driver in writing of his or her review, correction and rebuttal rights
in the hiring process. DAC Services recommends that the rule explicitly
state that this written notification may be given to the driver
subsequent to initiating the hiring application and initial screening
processes to obtain driver safety performance history data, other than
alcohol and controlled substances. This clarification would allow motor
carriers to accept driver applications for employment over the phone or
via the Internet without written notification of due process slowing or
hindering such methods of quickly obtaining information.
Similarly, PTSA wants clarification of the rule that requires
prospective employers to notify driver applicants of their rights
regarding previous employers' records before an application is
submitted. The rule only specifies that the prospective employer must
``inform'' the driver of the procedures for the use and collection of
safety performance records. PTSA asks, ``Does the FMCSA intend that
this notification, like the notice of due process rights under 49 CFR
391.23(i), be in writing?'
PTSA also wants guidance on the requirement that the previous
employer ``take all precautions reasonably necessary to ensure the
accuracy of the records.'' PTSA requests that this language (and
similar language contained in Sec. Sec. 391.23(h) and (k)(2)) be
clarified to specify the type of precautions the FMCSA has in mind.
FMCSA Response: FMCSA has added a clarifying statement to the final
rule language for Sec. 391.23(i) that says the required notification
in writing of driver rights may occur anytime prior to a hiring
decision being made, but it must be made in writing to all applicants,
including those not hired. The SNPRM pointed out that if a motor
carrier is in compliance with Sec. 391.21(b) this could be done as
part of the employment application the driver signs.
The intent is to make it clear that provisions of the Fair Credit
Reporting Act can apply as part of the job application process. The
FCRA allows notification of the driver by telephone (or other
electronic communication) that the prospective employer will obtain the
inquiry and investigation information required by Sec. 391.23 based on
that application communication. FMCSA also notes that if the driver
makes the application over the Internet, the required notification in
writing about the driver's due process rights to review, correct and
rebut could be provided by the prospective employer as part of the
application process as well.
The request by PTSA for guidance regarding how previous employers
can be in compliance with the requirement to ``take all precautions
reasonably necessary to ensure the accuracy of the records'' cannot be
addressed by FMCSA. To qualify for limited liability protection set
forth in the HazMat Act, Congress intends for the previous employer to
furnish accurate safety performance history information. As part of
that limited liability concept, Congress also established the
requirement for drivers to be able to review, correct and rebut the
information furnished. The test of whether an employer has taken
reasonable precautions to ensure accuracy would be addressed within the
context of a driver taking a previous employer to court trying to prove
the information furnished is false. With this as the test, employers
should have sufficient records to substantiate that any information
they reported is accurate to the best of their knowledge.
Employee Access and Rebuttal
The proposed rule allows the driver to submit a written rebuttal to
the previous employer when agreement cannot be reached on whether
information provided to the prospective employer is erroneous.
According to commenters, while the SNPRM is clear on the
responsibilities of the driver and the previous employer with regard to
the rebuttal, the proposal is silent on the prospective employer's
responsibility when faced with conflicting information. PTSA requests
``that this provision be clarified so that prospective employers fully
understand their responsibilities (if in fact there are any) when faced
with conflicting information relating to driver safety performance
history.''
Two commenters disagree with the requirement of allowing a
prospective driver an opportunity to refute investigative information,
citing a large burden on small businesses and slowing the hiring
process with no significant benefit. Several commenters think that the
driver should only be allowed to access the information if employment
is denied. For example, Qwest--
* * * proposes that access to this information be provided only
if employment is denied by the prospective employer based solely on
the investigative information. This will allow drivers who have been
denied employment an opportunity to rebut potentially inaccurate
information. It will also decrease the administrative burden on
employers.
Further, ATA states that an applicant's right to review information
provided by previous employers should only address those persons who
are rejected for employment because of the information received. Hired
drivers have the ability to review and access their personnel files,
making a regulation for such drivers unnecessary. TCA agrees and
states,
The costs that such an across-the-board requirement would impose
on carriers would be significant and, in the absence of a dispute
over the accuracy of the information, seems entirely unnecessary and
unjustified. FMCSA's final rule should only extend the right of a
driver to receive the information from the prospective employer in
the event that the driver is denied employment based, in whole or in
part, on the information provided by a past employer.
The IBT, however, agrees with the provision that the driver should
be allowed, upon request, to see his or her records obtained from
previous employers. In addition, the IBT questions the other
commenters' assertion that the cost of providing records to drivers
would be burdensome. The IBT claims ``that allowing drivers to view the
information provided whether they are denied employment or not may be
more efficient and result in saved costs as it will allow drivers to
correct or rebut information sooner, without having to wait until they
are denied jobs based on the information.''
Finally, OOIDA believes that the rebuttal process leaves the driver
in a distinct disadvantage because a driver can only correct his or her
record during the hiring process while the carrier can make changes to
the driver's record at any time. OOIDA suggests that a driver have a
right of rebuttal or correction any time a carrier makes a change to
the driver's record.
FMCSA Response: Congress, in the HazMat Act, requires that the
previous employer provide driver safety performance history information
to the prospective motor carrier employer. TEA-21 requires that all
drivers have the right to a rebuttal, and that the previous employers'
information may be made available to the prospective motor carrier's
insurance provider. TEA-21 also requires that provisions implementing
these requirements be added to Sec. 391.23 dealing with investigations
and inquiries required as part of the hiring process.
[[Page 16695]]
There are no requirements in the HazMat Act, TEA-21, or existing
regulations regarding what a prospective employer is required to do
with previous employer information. They are similarly silent regarding
what to do with driver rebuttals that presumably will conflict with the
previous employer information.
TEA-21, however, provides the insurer of the motor carrier
requesting the data with the same limited liability as the prospective
motor carrier requesting the data. FMCSA believes that by also granting
insurers limited liability to gain access to the information (the final
rule excludes the alcohol and controlled substances information),
Congress intended for business decisions between the prospective motor
carrier and the insurance provider to function as a mechanism by which
this data will be evaluated. FMCSA believes there is motivation for the
carrier and insurer to make good sound judgments of the relative risk
of prospective drivers. Those judgments will now be based on better
documentation about the driver's past safety performance history.
FMCSA believes the final rule must allow all drivers the right to
submit a rebuttal, as specified in TEA-21. The request by OOIDA to
allow the driver a rebuttal right at any time a motor carrier makes an
entry to the driver's record is not required by the HazMat Act or TEA-
21, and would be intrusive on the operating practices of motor
carriers.
Appeal Process (Sec. 391.23(i) and (j))
Commenters express concern that the appeal process would inhibit
prospective employers from hiring a driver. For example, TCA opposes
FMCSA's proposed appeal process. A driver's dispute over information
provided by a past employer, would require the prospective employer to
delay making its hiring decision until the dispute has been resolved or
the driver provides his or her rebuttal. TCA believes the impact that
such a mandatory requirement would have on carriers [in the truckload
sector of the industry] would be extremely impractical from an
operational standpoint and also unduly burdensome and costly. TCA
states, on the other hand, ``* * * FMCSA's decision not to mandate such
a delay in hiring decisions would have a minimal impact on drivers,
since the dispute resolution process should enable the driver to cure
the inaccuracy in a reasonably timely fashion and thereby limit any
denial of work based on the disputed information * * *''
The IBT, however, disagrees with TCA's position. The IBT does not
think it would be proper for the FMCSA to issue a regulation explicitly
permitting a prospective employer to make a decision not to hire a
driver before the process is complete.
FMCSA Response: There is no requirement for the motor carrier to
delay putting the driver to work pending the appeal process. The
proposal in the SNPRM was that the investigations `` * * * must be
completed within 30 days of the date the driver's employment begins.''
FMCSA has modified Sec. 391.23(c) in the final rule to make it clearer
that the employer is allowed to put the driver to work for up to 30
days without having completed the required safety performance history
background investigation.
FMCSA desires to keep the new requirement for safety performance
history Sec. 391.23 as close as possible to current requirements so
that the provisions of this rule are consistent with existing
requirements. The requirement is that the inquiries and investigations
must be performed and information received within 30 days or the motor
carrier must not allow the driver to continue operating a CMV. In order
to keep that requirement as it is, the additional new times added by
this rule for completing the driver appeal process are defined as being
outside of the 30 days allowed for obtaining the initial safety
background information. For example, a motor carrier hires a driver and
on the 29th day from the start of employment, the hiring motor carrier
receives a response from a previous employer that contains accident
data. If the driver requests a copy of that report from the prospective
(hiring) employer, and then decides to request correction or to rebut
it, the hiring motor carrier is not required by these regulations to
prevent the driver from operating a CMV for the new (prospective)
employer while the driver is exercising his or her rights to review,
correct or rebut the information provided.
Access to Data
Insurer Access to Data (Sec. Sec. 391.23 (h) and 391.53(a)(1))
The Daily Underwriters of America thinks that the regulation should
be expanded to include insurers of commercial autos. It argues that
``Allowing the insurance company access to the same information would
enhance the decision making process and offer another professional
opinion on the safety risk presented by each driver.''
The TCA and ATA are opposed to allowing insurers of motor carriers
access to safety performance history information. TCA argues that the
provision will effectively give insurers the implicit right to direct
the hiring decisions of motor carriers and may expose carriers to
liability for adverse hiring decisions.
ATA points out that part 40 allows the release of alcohol and
controlled substance information to anyone named on the driver's
release authorization. ATA states that `` * * * Sec. 391.53(a)(1), as
proposed, would be inconsistent with Sec. 40.25.''
FMCSA Response: In regard to the Daily Underwriters of America
request to expand this rule to include commercial autos, the FMCSA
notes it only has authority to regulate commercial motor vehicles as
defined in Sec. 390.5. Unless the autos are carrying placardable
amounts of hazardous materials (thus requiring a commercial driver
license (CDL) to operate them) they are not CMVs. Additionally, in part
391 FMCSA only has authority over motor carriers operating in
interstate commerce. Thus, unless the commercial autos are being
operated by a motor carrier in interstate commerce carrying placardable
amounts of hazardous materials, FMCSA has no jurisdiction over such
autos even if used commercially, such as in sales fleets.
In regard to TCA and ATA not wanting to release accident data to
their insurers, FMCSA notes that Congress specified in TEA-21 that the
motor carrier's insurer could have access to the safety performance
history. This is one of the mechanisms by which the safety performance
history data is made part of the hiring decision process.
In regard to ATA's question about whether the proposed Sec.
391.53(a)(1) is inconsistent with Sec. 40.25, FMCSA believes the
reference should more accurately be to Sec. 40.321. FMCSA further
notes that the regulations in Sec. 391.23 apply to what a motor
carrier can do. Section 391.53(a)(1) says the prospective motor carrier
cannot give the alcohol and controlled substances information to its
insurer. Departmental policy in part 40 seeks to protect the privacy
rights of drivers, and does not want alcohol and controlled substances
information released for purposes other than intended, namely to keep
drivers with positive tests from operating CMVs until they have
completed the process of return-to-duty status. There is no need for
insurers to have access to this data, because prospective employers are
prohibited from allowing such drivers to operate CMVs.
[[Page 16696]]
However, as ATA points out, if a driver wishes to give
authorization for their alcohol and controlled substance data to be
released by the previous employer to the insurer of the prospective
motor carrier, they are free to do so. However, there is no regulatory
requirement for them to do so.
Access to and Use of Driver Investigation History File (Sec.
391.53(a))
The SNPRM contained a provision that restricts access to the Driver
Investigation History file to the hiring decision process and to those
persons involved. Con-Way and the ATA oppose this provision. Both
commenters cite the burden of maintaining two files--a Driver
Investigation History file, which can only be accessed by those
involved in the hiring process, and a second Driver Qualification file
with the rest of an employee's information. Both commenters recommend
that the provision be amended to permit storage of all of an employee's
information in one file. ATA also argues that management personnel of a
motor carrier should have the right to review the information in a
driver's file for any valid reason whether or not they were involved in
the hiring process.
RIPA seeks guidance with regard to the agency's interpretation of
the term ``controlled access'' as it is used in Sec. 391.53. In this
section, the proposed rule states that the Driver Investigation History
file ``must be maintained in a secure location with controlled
access.''
FMCSA Response: FMCSA does not believe it has any latitude to
permit the investigation records required by the rule to be mingled
with the inquiry records, nor to allow the investigation information to
be used for any other purpose, even for FMCSA required reviews, such as
the annual review required by Sec. 391.25.
TEA-21, as codified at 49 U.S.C. 508(b)(1)(B), requires the
prospective motor carrier to ``* * * protect the records from
disclosure to any person not directly involved in deciding whether to
hire that individual.'' In addition, 49 U.S.C. 508(b)(1)(C) requires
that ``the motor carrier has used those records only to assess the
safety performance of the individual who is the subject of those
records in deciding whether to hire that individual.''
In addition to the Congressional requirement at 49 U.S.C.
508(b)(1)(C), as it relates to Con-Way's and ATA's concern about the
burden of maintaining an extra file, FMCSA notes that this file is
customarily maintained separately for alcohol and controlled substance
results. The proposal at Sec. 391.53 was developed based on this
common practice of motor carriers maintaining such files separately in
order to be able to withstand driver court challenges when asked how
they can prove they met the requirements of part 40 for secure and
controlled access. Thus, FMCSA proposed that the Driver Investigation
History file could be combined with the already separately maintained
alcohol and controlled substances response file in order to minimize
any additional costs imposed on motor carriers.
The terms secure and controlled-access are adopted as a conforming
amendment from part 40, which has used these terms for some time.
National Database or Access to FMCSA Data Files
Instead of requesting driver information from previous employers,
nine commenters advocate a national or centralized database to include
information, such as driver accidents, alcohol and controlled
substances test results, safety related medical conditions, citations,
and out of service inspections. The arguments presented for such a
database include better tracking of drivers, less expensive and easier
access to the information, and less burden on the motor carriers. For
example, Consumer Energy explains that a database system could
eliminate the paperwork burden, limit the possibility of a driver's
falsification of employment, failure to provide documentation of
previous employers, and speed up the hiring process. Consumer Energy
recommends modeling a database after the Nuclear Regulatory
Commission's Personnel Access Data System (PADS).
J.B Hunt concurs that a database would lessen the burden to motor
carriers from the thousands of requests for information gathered in the
hiring process. This commenter suggests adopting a national program
similar to the California Pull-Notice Program where motor carriers
register new drivers in a database of safety performance indicators,
such as accidents, alcohol and controlled substances test failures, and
traffic convictions. The administrator of the database notifies
employing motor carriers when a driver's record changes, and drivers
would have access to their records to make rebuttals. The American Bus
Association agrees that such a database ``would solve the problem that
occurs when a driver applicant `forgets' to list a previous employer to
avoid scrutiny.''
TCA, ATA, and DAC Services all urge FMCSA to allow motor carriers
access to driver information in the Motor Carrier Management
Information System (MCMIS) database. These commenters argue that by
giving access to this data, motor carriers would gain access to more
information about a driver than under this rule. ATA urges FMCSA
to immediately take the necessary action to allow prospective motor
carriers to access the MCMIS database, on a real-time basis, for the
purpose of obtaining driver-applicants accident data, as well as
other important roadside inspection safety compliance and
performance data.
Similarly, the Commercial Vehicle Safety Alliance (CVSA) states that
roadside safety inspection reports include information that would allow
prospective employers the opportunity to analyze the driving habits of
prospective employees by reviewing their FMCSR violation histories and
that of the vehicles they operated. Access to this information might be
accomplished by providing access to driver specific information via
SAFER [Safety And Fitness Electronic Records] and/or other databases.
Access to this driver information would provide motor carriers a more
comprehensive rendering on which to base their hiring decisions. While
the CVSA strongly recommends motor carrier access to driver specific
roadside safety inspection information, it also recognizes the fiscal
implication at both the Federal and State levels. For this reason the
CVSA requests that FMCSA be cognizant and sensitive to the limited
resources available in regard to proposed upgrades to information
systems.
The IBT strongly opposes making individual driver records publicly
available via MCMIS. IBT is concerned about maintaining the
confidentiality of the information and believes the rule as proposed
implements the necessary precautions to protect the confidentiality of
this information by making it only available to individuals involved in
the hiring process.
FMCSA Response: The FMCSA recognizes the interests demonstrated by
the suggestions to provide the safety performance history for new
drivers using national databases rather than investigations to previous
employers. For the benefit of those interested, FMCSA provides this
summary of related activities in each of the suggested areas.
FMCSA has been building the MCMIS database of motor carrier
information for many years. However, the agency is also aware that
there are accompanying cost and individual privacy issues. As the
commenters indicate, the MCMIS contains information on accidents and
out-of-service orders, and is used by
[[Page 16697]]
FMCSA for various purposes, including prioritizing motor carriers to
receive carrier compliance reviews. In any event, access to that MCMIS
database or the development of another database was not proposed in the
SNPRM, and is outside the scope of this rulemaking.
Regarding an alcohol and controlled substances database, section
226 of the Motor Carrier Safety Improvement Act of 1999 (MCSIA) (Pub.
L. 106-159, 13 Stat. 1748 (December 9, 1999)) requires a report to
Congress on the feasibility and merits of an alcohol and controlled
substance database capability. Work on that report is progressing. When
the report is released to the public after being sent to Congress, it
will be placed in docket FMCSA-2001-9664. The long title of the report
is ``A Report to Congress On the Feasibility and Merits of Reporting
Verified Positive Federal Controlled Substance Test Results to the
States and Requiring FMCSA-Regulated Employers to Query the State
Databases Before Hiring a Commercial Driver's License (CDL) Holder.''
Regarding medical certification information as part of the CDL
process, section 215 of MCSIA requires a rulemaking to provide medical
certification information as part of the CDL licensing process. Work on
that rulemaking effort is progressing as well.
There were studies related to the possible value of a national
database of citations. However, there is no proposal or funding to
proceed with such an effort. It appears far more cost effective to
instead focus on using the data about traffic convictions available
from the Commercial Driver License Information System (CDLIS), and also
available to motor carriers from the Motor Vehicle Record (MVR)
obtained from the licensing State, and already required by Sec.
391.23(b). For CDL drivers, the FMCSA is working with the States to
improve the quality of this data in accordance with section 221 of
MCSIA.
Rejection Rate and Cost/Benefits
Several commenters addressed FMCSA's rejection rate in its SNPRM
cost/benefit analysis. Two commenters take issue with the FMCSA use of
a 4 percent rejection rate of applicants in the SNPRM regulatory
evaluation. These commenters state that the actual rate is much higher
and that therefore the FMCSA underestimated the cost of the proposed
rule. Con-Way states that the rejection rate is closer to 80 percent,
and that therefore the cost would be $1.52 billion, not $76 million as
stated in the SNPRM. Con-Way states,
* * * there is no doubt that the proposal will result in lots of
paper and administration. Not only employers but also potential
applicants would be impacted, as applicants may not be hired as
quickly, creating more hardship and loss of income for job seekers.
Con-Way further states that the analysis assumes, with no data to
support the assumptions, that there may be a 0 percent, 10 percent, 25
percent or 50 percent reduction in accidents (what is identified as
``deterrence effect''). In the opinion of Con-Way, the fact that there
is a wide range in accident reductions included in the sensitivity
analysis implies there is little data to support a more definitive
statement of benefits. Con-Way concludes that the benefit analysis is
inadequate, flawed, and based on little data and many assumptions.
The ATA contacted several motor carriers of varying sizes,
presumably among their membership, to get a better estimate of the
rejection rate of CMV driver applicants. ATA submitted the results of
its inquiries to the docket. ATA states that the information indicates
the actual driver employment rejection rate may be considerably higher
than the four per cent used by FMCSA in its cost/benefit analysis. The
table contained in ATA's document 83 in this docket gives the results
of the ATA inquiries. It also gives a weighted mean rejection rate of
80.1 percent. ATA suggests that FMCSA needs to further investigate its
rejection rate assumption and reexamine its cost/benefit analysis based
on the new information.
Three commenters assert that associated and administrative costs
will significantly exceed FMCSA's estimates and will cause significant
economic burden on the industry. For example, AT&T estimates that its
efforts to comply with these regulatory changes would result in very
costly modifications to an established, well-functioning system, which
would take considerable time. In AT&T's opinion, the FMCSA did not
prove that the benefit of the SNPRM's proposal would outweigh these
costs.
FMCSA Response: FMCSA stated in the preamble to the SNPRM, with a
reference to the supporting study in the docket, that it was aware of
the CDL Effectiveness focus groups study involving motor carrier safety
directors who stated that there is a substantial rejection rate of CMV
driver applicants. A copy of the relevant portions of that publication
is included in the docket as document 41. The preamble also stated that
because of limited information, that observation was not included in
the regulatory evaluation. Additionally, the SNPRM requested that more
information about rejection rates be provided in comments to the
docket. Based on the additional information received, FMCSA has revised
both the paperwork burden estimates and the regulatory evaluation,
using a higher rejection rate, and thus yielding higher burden and
cost. These are discussed in detail in the ``Paperwork Reduction Act''
and ``Regulatory Evaluation: Summary of Benefits and Costs'' sections
later in this preamble.
Fees (Previous Employers or Third Parties Charge)
Of those commenters that addressed this issue, some do not want
previous employers to be allowed to charge a fee to offset their costs
of providing safety background information about their previous
employees. Safe Fleet asserts that all motor carriers are both previous
and new employers, so all should share the burden and help out one
another with this cost. Two commenters suggest that, if previous
employers can require a payment for the required safety performance
history information, it should be a standard amount determined by the
FMCSA. ATA specifically urges FMCSA to make a decision on whether
charging a fee for safety performance history information is allowed or
prohibited.
FMCSA Response: There are two distinct requirements under Sec.
391.23, namely for ``Investigations'' and ``Inquiries.'' Under
``Inquiries'' motor carriers are required to obtain the driving record
from all States where the driver held a license or permit in the last
three years. All States commercially sell this information as the Motor
Vehicle Record (MVR) to authorized users. Payment of the fee set by
each State is a condition of the MVR being released by the State. These
fees are set by State government agencies for access to public records.
FMCSA has no part in setting these fees.
Under the ``Investigations'' requirements of the Sec. 391.23
``Investigations and inquiries,'' prospective motor carriers continue
to be required to request investigatory information from previous
employers, and the minimum data elements are now defined by this
rulemaking. In addition, previous employers are now required by this
rule to provide the specified minimum information.
Further, as pointed out in the SNPRM, it is an established practice
for some motor carriers to require a driver to have driving experience
before they will hire the driver. (See document 41 in this docket.)
This means some carriers are hiring the inexperienced new entrant
drivers, who systematically leave their employ to go to work for
carriers
[[Page 16698]]
requiring some type of driving experience.
Those carriers hiring inexperienced new entrant drivers will
systematically be subject to the costs of providing the safety
performance history data, but will not equally get the advantages of
this data from other previous employers. The Regulatory Evaluation
section presents two possible scenarios, each indicating that some
motor carriers hire drivers with no driving experience. Under scenario
1, the percent of drivers hired from outside the industry would be over
25 percent new entrants. Under Scenario 2, the percent of the drivers
hired from outside the industry would be over 34 percent new entrants.
FMCSA points out that our regulations do not prevent previous
employers from charging a fee for this information. If such fees are
charged to offset carriers' cost of providing the required safety
performance data, FMCSA encourages development of a market that
establishes reasonable, predictable fees. Although FMCSA agrees any
fees should be reasonable and predictable, somewhat like the State fees
for the MVRs, FMCSA does not believe it has the authority to set fees
for release of former driver safety performance history information to
prospective employers.
However, FMCSA believes it has the authority to require previous
employers to release the minimum data, for alcohol and controlled
substances specified in part 382 and for accidents as defined in Sec.
390.5, to the investigating prospective motor carrier within the time
period required at Sec. 391.23(g)(1), even if the previous employer
has to initially absorb the costs for maintaining and providing this
information, i.e., extend credit. Previous employers may not condition
release of this required investigative safety performance history
information on first receiving payment of a fee by the prospective
motor carrier. A copy of a corresponding FMCSA interpretation to this
effect in the context of alcohol and controlled substance information
was placed in the docket as document 55. This does not apply to
accident data not defined by FMCSA and retained either pursuant to
Sec. 390.15(b)(2) or because the motor carrier chooses to maintain
more detailed minor accident information for their own purposes.
FMCSA does not believe it has a regulatory role in establishing
reasonable, predictable fees for the safety performance history
information previous employers are required to provide once this rule
is implemented. What such fees may be, and how they are collected,
should be determined in a free, open, efficient, competitive
marketplace.
Miscellaneous
Relation of Hours of Service to Safety Performance
The ATA believes that the regulatory evaluation discussion in the
SNPRM did not provide the evidence showing the claimed positive
relationship between hours of service violations resulting in out-of-
service orders and future safety performance. ATA urges FMCSA to place
appropriate proof of this claimed relationship in the public docket.
AHAS strongly disagrees with FMCSA's decision to accept the SBA
request to delete the requirement for previous employers to disclose
records evidencing previous driver hours of service (HOS) violations
resulting in out-of-service orders. AHAS is not persuaded that the
agency's rationale for excising this aspect of the proposed rule has
any merit. AHAS challenges that a ``failure to require employers to
provide such information on driver HOS violations to any prospective
new employer of that driver arguably abets ongoing HOS violations by
refusing to stop their concealment from subsequent employers.''
FMCSA Response: With regard to ATA's comment, the information
referred to in the SNPRM was developed in a study for FMCSA. A
preliminary report on this study was presented at the 2002 annual
Transportation Research Board meeting in Washington, DC. A copy of a
current report on that analysis is included in the docket as document
85.
More accurately, the SNPRM discussion refers to a positive and
significant relationship between a measure developed by that study of
traffic convictions and driver out-of-service (OOS) orders, which are
largely from hours of service violations or record of duty (logbook/
timecard) violations. Drivers receiving more traffic convictions for
moving violations, particularly those defined as CDL serious or
disqualifying convictions, are identified by the required Commercial
Driver License Information System (CDLIS) recordkeeping functions.
Depending on the traffic law conviction received and the number of
such convictions, the driver may be identified by the State driver
licensing agency as a safety risk requiring driver improvement actions,
such as suspension or revocation, in accordance with the CDL program
regulations. It is an underlying premise of the CDL program that
drivers with such conviction patterns are considered higher risk for
being involved in accidents, and should be removed from driving CMVs,
either temporarily or permanently.
The study found a significant, positive, linear correlation between
the proposed carrier-driver conviction measure with OOS orders and
carrier power unit crash rate. This implies that if the driver OOS
information were available to prospective employers, it could also be
useful in predicting future safety problems, including accidents. The
relationship of driver OOS orders and future crash involvement is being
further researched.
In regard to the AHAS comments, as stated in the SNPRM, FMCSA
continues to believe ``* * * requiring this information collection and
establishing a motor carrier recording requirement would be
particularly burdensome to small entities * * *'' ``* * * because this
information is only systematically reported to FMCSA as part of the
Motor Carrier Safety Assistance Program (MCSAP) enforcement activities
of the States.'' FMCSA provides the following additional details why
this would be burdensome on small entities, as well as not meet the
three-year reporting requirement of the HazMat Act.
Motor carriers are not currently required by the FMCSRs to maintain
a three-year record for hours of service violations resulting in an
out-of-service order. Requiring motor carriers to maintain and provide
three-years of such information would necessitate creating a new
recordkeeping requirement for motor carriers to obtain and maintain
this data, and creation of such a process could be problematic.
The following things are currently required. Drivers are required
by Sec. 395.13(d)(3) to notify their employer of having received a
driver out-of-service order for an hours-of-service violation. Motor
carriers are then required by Sec. 395.8(k)(1) to retain such data as
a supporting document for 6-months. Under Sec. 396.9(d)(3), motor
carriers are required to retain a copy of inspection reports they
receive from the driver, some of which could include information about
a driver out-of-service order, for 1-year.
Because of the known problem with drivers not providing all such
information to their motor carrier, FMCSA created a capability for
motor carriers to obtain a carrier profile from FMCSA for a fee. If
there is information on that profile about a driver-out-of-service
order the motor carrier did not receive from the driver, the motor
carrier may either contact the State MCSAP agency that issued the
report, or request a facsimile copy of that
[[Page 16699]]
information from the FMCSA for their records for a fee.
There is no requirement for the motor carrier to regularly obtain a
carrier profile in order to search for possible missing driver OOS
orders. However, if the carrier requests a profile from FMCSA, we
require the carrier to pay a fee to the agency for both the profile and
any missing facsimile data. This means there is no reliable,
institutionalized process for motor carriers to be notified of all such
orders received by their drivers. Even if the information were
obtained, the longest the motor carrier is required to keep reports on
file is 12 months for inspections.
The more reliable reporting process in place is the States' MCSAP
agency reporting this data to FMCSA, using SAFETYNET \2\ to place it in
MCMIS. There is no requirement for the States to provide this
information to motor carriers.
---------------------------------------------------------------------------
\2\ SAFETYNET is a database management system that allows entry,
access, analysis, and reporting of data from driver/vehicle
inspections, crashes, compliance reviews, assignments, and
complaints. It is operated at State safety agencies and Federal
Divisions and includes links to SAFER and MCMIS. It is an Oracle
based client-server system.
---------------------------------------------------------------------------
Broader Applicability (Non Safety Sensitive Functions)
The proposed rule requires that prospective employers investigate
alcohol and controlled substance testing information for prospective
drivers previously employed in safety-sensitive positions. Qwest
supports this requirement. However, Qwest believes the language in
Sec. 391.23(e) should be modified to state that all prospective driver
alcohol and controlled substance testing information should be
investigated, not just drivers that will perform safety-sensitive
functions for the prospective employer.
FMCSA Response: The requirements of part 382 only apply to persons
covered by part 383 (CDL) requirements. Section 391.23(e) adds
conforming amendments for the requirements of part 382 to those of part
391 as required by the HazMat Act. It is possible an applicant for a
driving job that does not require a CDL may have previously driven
vehicles requiring a CDL and failed an alcohol or controlled substance
required test.
The specification at Sec. 391.23(e) applies to all drivers who
held a safety sensitive job in the previous 3 years. For motor
carriers, this is a CDL driver. If they are driving a CMV, whether they
will perform a safety sensitive job for the prospective employer does
not matter. The prospective employer is required for such drivers to
request the alcohol and controlled substances information. The
requirement at 49 CFR 390.3(d) states an employer may specify more
stringent requirements as a condition of employment. However, if during
the previous three-year period the driver did not hold a safety
sensitive job subject to the requirements of part 40 or part 382, there
is no requirement for the previous employer to have applied the testing
requirements required for safety sensitive jobs. FMCSA does not have
the authority to require drivers not performing safety sensitive
functions to be subject to the requirements of parts 40 and 382.
Liability Limitation (Sec. 391.23 (l))
All commenters support the provision that limits liability when
previous employers are furnishing driver records. Two commenters raise
questions about whether immunity will apply to State courts and whether
this provision will prevent a driver who was not hired from suing.
Three commenters have specific recommendations regarding the language
of the provisions. First, Con-Way proposes that protections should
apply unless a person knowingly and intentionally furnishes false
information. Second, ATA urges the FMCSA to delete from Sec.
391.23(l)(2) the second phrase ``* * * or who are not in compliance
with the procedures specified for these investigations * * *'' by
placing a period after the word ``information'' and striking the
balance of the sentence in order to strengthen the employer
protections. However, the IBT disagrees with ATA and claims that this
suggestion would immunize employers from liability even if they do not
comply with the regulations. Finally, Qwest recommends protections for
good faith compliance.
However, OOIDA believes that motor carriers' fear of liability is
exaggerated. OOIDA states
The proposed rule emphasizes carriers' supposed fear of their
exposure to legal liability for following the rules. OOIDA finds
this fear suspect and vastly overstated. OOIDA does not understand
why any carrier would express any fear of liability unless they know
or believe that the information they are using is false, or that
they are engaged in the improper use of such information.
Furthermore, OOIDA is unaware of any litigation brought against a
carrier for the creation of false information in a driver's safety
performance history or the misuse of such information. FMCSA
presents no factual record to back up this fear. From OOIDA members'
experience, drivers' careers are much more likely to be damaged by
carrier misuse of background information than carriers are at risk
for litigation under the rules.
In addition, OOIDA expresses concern that motor carriers knowingly
passing along false information received from another carrier would be
shielded from legal liability.
FMCSA Response: The only basis provided under the statute and this
regulation for a driver to have standing in court is to allege the
previous employer knowingly provided false information. If the driver
proves false information was provided by the previous employer, the
liability limitation does not apply and the court can determine and
assess a penalty on the previous employer. The preemption language in
TEA-21 at section 4014(c) (see document 39 in this docket) explicitly
refers to State and local law and regulations that create liability
associated with providing or using safety performance history
investigative information.
FMCSA concurs with the IBT comment to the docket that the HazMat
Act does not provide discretion for partial or good faith compliance
with the procedures established by this final rule. Motor carriers must
comply with the regulations.
Implementation
The previous topics and their discussions indicate many commenters
are concerned about a number of practical difficulties that must be
dealt with to effectively implement this rule. Additionally the Small
Business Administration (SBA) submission to the docket in response to
the NPRM, document 26, expresses concern that the implementation needs
of the large number of small businesses should be given more explicit
attention. Two issues SBA explicitly addressed were the phasing in of
accident data retention and providing compliance assistance.
FMCSA Response: The issue of phasing in accident data retention is
addressed separately, and FMCSA is doing that. However, it only
addresses that specific aspect of implementation that is impossible to
accomplish until enough time has passed to allow accumulation of three
years of data.
An additional issue is allowing a reasonable enough time for all
parties to effectively implement the newly required processes for data
retention, investigating, reporting, using data obtained as part of the
hiring decision process, and managing the driver rights processes.
FMCSA determined that six months after the effective date of this rule
is a reasonable balance between motor carrier implementation and safety
requirements for all impacted parties to implement the process
capabilities required to operate in compliance with
[[Page 16700]]
this rule. This will also allow the industry together with FMCSA to
develop and make available various non-mandatory guidance materials.
Rulemaking Analyses and Notices
Privacy Act
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.) You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FMCSA determined this action is a significant regulatory action
within the meaning of Executive Order 12866, and is significant within
the meaning of Department of Transportation regulatory policies and
procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034, February
26, 1979), because the subject of requirements for background checks of
prospective driver safety performance history information generated
considerable public and congressional interest. FMCSA estimates the
economic impact of this rule will not exceed the annual $100 million
threshold for economic significance. The Office of Management and
Budget (OMB) reviewed the final rule, Paperwork Reduction Act
submission, the regulatory evaluation, and the regulatory flexibility
analysis associated with this action.
Under a following section of this rule entitled ``Regulatory
Evaluation: Summary of Benefits and Costs,'' the agency estimates the
first-year costs to implement this rule will amount to approximately
$15 million. Total discounted costs over the 10-year analysis period
(2004-2013) will be $113 million, using a discount rate of seven
percent. All these costs are associated with the statutorily mandated
requirements of section 114 of the Hazmat Act and section 4014 of TEA-
21. First-year benefits associated with this rule are estimated at $7
million. Total discounted direct benefits over the 10-year analysis
period (2004-2013) are estimated at $107 million. Total discounted net
benefits from implementing this rule are estimated at -$6 million
(without consideration of a deterrence effect) or as high as $47
million (with consideration of a deterrence effect).
A key assumption used in the above analysis involved the percentage
of newly available accidents for which prospective employers would be
able to determine, or infer, that the truck driver was at fault and
therefore deny the driver employment as a result. In the analysis
performed for the SNPRM, now called scenario 1, it was estimated that
30% of the drivers are at fault, and from those a total of 10% of
driver applicants would be denied employment. In this final rule it is
estimated from preliminary data from the Large Truck Crash Causation
Study that 38.64% of the drivers are at fault, and from those in
scenario 1 a total of 12.88% of driver applicants would be denied
employment. Both the 10% in the SNPRM and the 12.88% in this rule are
derived as one-third of the vehicle accidents involving a large truck
where the truck driver is estimated to be at fault.
For purposes of sensitivity analysis perspective, FMCSA also
presents a scenario 2 in the regulatory analysis where we assume the
full 38.64 percent of drivers at fault would be denied employment by
prospective employers because the employer would be able to determine,
or infer, from the data that the CMV driver was at fault in the
accident, and would choose to deny employment to all. This new, more
aggressive assumption is presented in an effort to provide readers with
the range of possible impacts, in light of the inherent uncertainty
regarding how much new accident data will become available to
prospective employers and exactly how they will use this data to make
hiring decisions. However, the more aggressive scenario 2 estimates are
only presented for sensitivity analysis perspective. FMCSA continues to
cite the original (now scenario 1) as the primary analysis performed
for this rule.
Under the scenario 2 assumption that prospective employers will be
able to accurately determine, or infer, fault in all the accident data
involving drivers applying for positions, and that all the drivers who
were at fault would be denied employment as CMV drivers for on average
six-months, the costs would remain the same, $113 million. But, the
first year benefits could be as high as $24 million, and the total
discounted 10-year benefits could be as high as $406 million. This
means the total discounted net benefits under this aggressive scenario
2 could be as high as $294 million over the 10-year analysis period
(2004-2013).
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement and Fairness Act (SBREFA), requires
Federal agencies to analyze the impact of rulemakings on small
entities, unless the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
In response to SBA's request for more information on the economic
impact of this final rule upon small entities, and the determination
that this is considered a significant rulemaking proposal, the agency
prepared a final regulatory evaluation and the following Regulatory
Flexibility Analysis.
(1) A description of the reasons why action by the agenc