[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Pages 10548-10556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6130]



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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration

49 CFR Parts 382, 383, 390, and 391

[FHWA Docket No. MC-96-6]
RIN 2125-AD66


Safety Performance History of New Drivers

AGENCY: Federal Highway Administration (FHWA), DOT.

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

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SUMMARY: The FHWA proposes to amend its regulations to specify minimum 
safety information that new and prospective employers must seek from 
former employers during the investigation of a driver's employment 
record. This notice of proposed rulemaking (NPRM) also proposes to 
increase the period of time for which carriers must record accident 
information in the accident register from one to three years. This 
proposal is mandated by section 114 of the Hazardous Materials 
Transportation Authorization Act of 1994 (HazMat Act). The proposed 
rules would ensure that employers would be cognizant of critical 
information concerning a driver's prior safety performance, while also 
affording the driver the opportunity to review and comment on that 
information.

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

ADDRESSES: All signed, written comments should refer to the docket 
number that appears at the beginning of this document and must be 
submitted to the Docket Clerk, Room 4232, Office of the Chief Counsel, 
Federal Highway Administration, 400 Seventh Street, SW., Washington, DC 
20590. All comments received will be available for examination at the 
above address from 8:30 a.m. to 3:30 p.m., e.t., Monday through Friday, 
except Federal holidays. Those desiring notification of receipt of 
comments must include a self-addressed, stamped postcard or envelope.

FOR FURTHER INFORMATION CONTACT: Ms. Valerie Height, Office of Motor 
Carrier Research and Standards, (202) 366-

[[Page 10549]]
1790, or Ms. Grace Reidy, Office of the Chief Counsel, (202) 366-0834, 
Federal Highway Administration, Department of Transportation, 400 
Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45 
a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal 
holidays.

SUPPLEMENTARY INFORMATION:

Background

    The FHWA is initiating this rulemaking in response to section 114 
of the HazMat Act, Public Law 103-311, August 26, 1994, 108 Stat. 1677. 
Section 114 directs the FHWA to amend its regulations to require a 
motor carrier to request from previous employers specific safety 
information when investigating a driver's employment record pursuant to 
49 CFR 391.23. The former employers would be required to respond to 
such requests within 30 days. The driver would be afforded an 
opportunity to review and comment on any information obtained from a 
former employer.
    Currently, Sec. 391.23(a)(2) of title 49 of the Code of Federal 
Regulations (CFR) requires motor carriers to make ``an investigation of 
the driver's employment record during the preceding three years,'' 
without specifying the type of information to be sought. The current 
regulation does not require a former employer to respond to the new and 
prospective employer's inquiry. For this reason, former employers may 
refuse to respond to such requests, and new and prospective employers 
are, therefore, unable to obtain important safety information about the 
driver.
    The FHWA proposes to amend 49 CFR parts 382, 383, 390, and 391 to 
incorporate the changes mandated by the HazMat Act. Section 391.23 
would be amended to require a motor carrier to obtain, for the 
preceding three-year period, information about a driver's accident 
record, hours-of- service violations resulting in an out-of-service 
order, violations of the prohibitions in subpart B of part 382, and 
failure to undertake or complete a rehabilitation program recommended 
by a substance abuse professional (SAP) under Sec. 382.605. Former 
employers would be required to respond within 30 days to such requests. 
Drivers would be afforded an opportunity to review and comment on this 
information. Conforming changes would be made to Secs. 383.35(f) and 
391.21(d) to reflect the driver applicant's right to review and comment 
on information obtained from previous employers. To facilitate 
information exchange, Sec. 390.15 would be amended to expand the time 
period for which carriers must record and retain accident information 
in an accident register from one to three years and require that the 
information in the accident register be provided to a subsequent 
employer in response to a request made during an employment 
investigation.
    Part 382 would also be amended to incorporate the drug and alcohol 
provisions of section 114 of the HazMat Act. Consistent with 
Sec. 391.23(c), Sec. 382.413 would be amended to require employers to 
investigate whether a driver failed to undertake or complete 
rehabilitation or violated the prohibitions in subpart B of part 382. 
Employers subject to part 382 would also be required to obtain 
information concerning whether a driver violated the drug and alcohol 
rules of other DOT agencies as well as the prohibitions in subpart B of 
part 382. Other conforming changes are proposed for part 382 that do 
not affect Sec. 391.23(c) and are discussed in greater detail under the 
section entitled ``Conforming Changes to Part 382.''

Applicability

    Motor carriers subject to part 391 would be required to investigate 
the specific safety information proposed for Sec. 391.23(c). They would 
be required to obtain information relative to a driver's accident 
experience and hours-of-service violations from all of the driver's 
motor carrier employers during the preceding three years. These motor 
carriers would also be required to request certain drug and alcohol 
information from employers that employed the driver to operate a 
commercial motor vehicle (CMV) requiring a commercial driver's license 
(CDL) under part 383 concerning events that occurred during the 
preceding three years. The source of the Sec. 391.23(c) drug and 
alcohol information has been limited to motor carriers because, under 
this part, the FHWA only has authority to require a response from these 
employers. New and prospective employers would only be required to 
investigate the drug and alcohol information for drivers who operated a 
CMV requiring a CDL within the preceding three years because only these 
drivers are subject to the part 382 drug and alcohol testing program.
    Under Sec. 391.23, motor carriers may request general employment 
information from any employer who hired the driver within the preceding 
three years. The FHWA proposes to require that new and prospective 
employers request the safety information required under section 114 of 
the HazMat Act only of previous employers that are motor carriers. 
Although section 114 states that the requests for the safety 
information must be made to ``former employers,'' only motor carriers 
and persons who operate CMVs must comply with the requirements of 49 
CFR Part 391. Thus, the proposed inquiry requirements of 49 CFR 391.23 
would only apply to former employers that are (or were) motor carriers.
    Section 114(a)(2) of the HazMat Act requires former employers to 
respond within 30 days to requests for safety information on a driver. 
Section 391.23(c) requires the motor carrier to make this investigation 
within 30 days of hiring the driver. To avoid prolonging the employment 
investigation process to 60 days (up to 30 days for the motor carrier 
to initiate the investigation plus up to 30 days for former employers 
to respond), the FHWA proposes to clarify Sec. 391.23(c) to require a 
motor carrier to commence the investigation as soon as possible, but 
not later than 30 days after hiring the driver. Section 391.23(c)(2) is 
added to require former employers to provide the information in 
Sec. 391.23(c) within 30 days of receiving the request. The former 
employer's 30-day response period commences from the postmarked date on 
a mailed request, the date of transmission on a facsimile request, or 
the date that the former employer was contacted for a personal or 
telephone interview. The 30-day period refers to calendar days and 
includes weekends and holidays. The 30-day response period concludes as 
of the date of postmark on a mailed response, date of transmission on a 
facsimile response, or the date that the former employer provides the 
information in a personal or telephone interview.
    Under these proposed regulations, the driver would be given a 
reasonable opportunity to review and comment on any information 
obtained during the overall employment investigation. The motor carrier 
would be required to notify the driver applicant of such right when 
applying for employment.
    The items of information proposed in Sec. 391.23(c) are minimum 
safety indicators that would be investigated under Sec. 391.23, in 
addition to general employment information. The specified information 
should not necessarily be regarded as an exclusive list of the 
information that would be obtained during the driver's employment 
record investigation. Employers would be allowed to continue to 
investigate, generally, an applicant's employment record. Employers who 
are subject to part 382 would also be required to obtain the 
information required by that part (See the section entitled

[[Page 10550]]
``Conforming Amendments to Part 382'').
Specific Minimum Safety Information To Be Sought When Investigating 
the Driver's Employment Record Under Sec. 391.23
    Under Sec. 391.23, motor carriers would be required to request the 
following safety information from a motor carrier employer who, within 
the preceding three years, hired the driver to operate a CMV:
    1. Accidents (as defined in Sec. 390.5) in which the driver was 
involved during the past three years; and
    2. Hours-of-service violations that resulted in an out-of-service 
order being issued to the driver during the past three years.
    Motor carriers would also be required to request information 
regarding the following safety violations from an employer who, within 
the preceding three years, hired the driver to operate a CMV requiring 
a CDL under part 383:
    3. Failure of the driver to undertake or complete a rehabilitation 
program prescribed by a substance abuse professional pursuant to 
Sec. 382.605 during the past three years; and
    4. Violations of the prohibitions in subpart B of part 382 during 
the past three years.
    A discussion of each of the minimum safety indicators follows.
Accidents
    The FHWA proposes to require new and prospective employers to 
investigate accidents occurring within the preceding three years 
involving a driver applicant. An accident is defined in Sec. 390.5 as 
follows:
    [A]n occurrence involving a commercial motor vehicle operating on a 
public road in interstate or intrastate commerce which results in--
    (i) A fatality;
    (ii) Bodily injury to a person who, as a result of the injury, 
immediately receives medical treatment away from the scene of the 
accident; or
    (iii) One or more motor vehicles incurring disabling damage as a 
result of the accident, requiring the motor vehicle to be transported 
away from the scene by a tow truck or other motor vehicle.
    Section 390.5 provides that the definition of an accident does not 
include the following:
    (i) An occurrence involving only boarding and alighting from a 
stationary motor vehicle; or
    (ii) An occurrence involving only the loading or unloading of 
cargo; or
    (iii) An occurrence in the course of the operation of a passenger 
car or a multipurpose passenger vehicle (as defined in 49 CFR 571.3 of 
this title) by a motor carrier and is not transporting passengers for 
hire or hazardous materials of a type and quantity that require the 
motor vehicle to be marked or placarded in accordance with 49 CFR 
177.823 of this title.
    ``Disabling damage'' is defined in Sec. 390.5 as ``damage which 
precludes departure of a motor vehicle from the scene of the accident 
in its usual manner in daylight after simple repairs.'' This includes 
``damage to motor vehicles that could have been driven but would have 
been further damaged if so driven.'' However, Sec. 390.5 provides that 
disabling damage does not include--
    (i) Damage which can be remedied temporarily at the scene of the 
accident without special tools or parts.
    (ii) Tire disablement without other damage even if no spare tire is 
available.
    (iii) Headlamp or taillight damage.
    (iv) Damage to turn signals, horn, or windshield wipers which makes 
them inoperative.
    The FHWA proposes that only accidents, as defined in Sec. 390.5, be 
investigated instead of ``any motor vehicle accidents'' as stated in 
the HazMat Act for the following reasons. First, the FMCSR's definition 
of ``accident'' contained in 49 CFR 390.5 is not as all inclusive as 
``any motor vehicle accident''; and the FMCSR's definitions apply to 
part 391. Section 390.15 already requires motor carriers to retain a 
record of ``accidents'' as defined in Sec. 390.5. Broadening the term 
``accident'' to include occurrences beyond those described in 
Sec. 390.5 would make its definition inconsistent with the National 
Governors' Association (NGA) definition and would, therefore, skew the 
data contained in the SAFETYNET System. Such action could also 
significantly increase the paperwork burden placed upon the motor 
carrier industry. The FHWA published a final rule on February 2, 1993, 
in the Federal Register (58 FR 6729) which incorporated into the FMCSRs 
the accident definition recommended in the NGA study entitled, ``Truck 
and Bus Accidents: Getting the Facts'' (1990). In that final rule, the 
FHWA eliminated the requirements that motor carriers submit accident 
reports to the FHWA and notify the agency telephonically of fatal 
accidents, adopted a new accident reporting system (SAFETYNET Accident 
Module) which collects information from police accident reports and 
incorporates the NGA accident reporting data elements, and required 
motor carriers to maintain a register of accidents for a period of one 
year after the accident occurs. Each of the actions put into effect by 
the February 2, 1993, final rule is based upon the uniform definition 
of the term ``accident.'' Therefore, the FHWA proposes to restrict the 
accidents investigated under Sec. 391.23(c)(1)(i) to those accidents 
defined in Sec. 390.5 so that (1) the relationship between the 
definition of an accident and the actions accomplished by the February 
2, 1993, final rule is maintained and (2) motor carrier employers may 
comply with the HazMat Act requirements without undue burden or 
confusion.
    To facilitate implementation of the accident information 
requirements, the FHWA also proposes to broaden the use of the accident 
register. Currently, the accident register may be used to assist 
investigations and special studies conducted by representatives or 
special agents of the FHWA. The FHWA proposes to encourage motor 
carriers also to use it when responding to a new or prospective 
employer's request for information about a driver applicant's accident 
record.
    The FHWA proposes to extend the period of time that the register 
must be retained from one to three years. Extending the retention 
period to three years would enable a motor carrier employing a driver 
for three or more years to provide an accident history to a subsequent 
employer for the entire period required by the proposed rule.
    This proposal to require inquiries of former employers would not 
set aside the motor carrier's responsibility to investigate a driver's 
driving record under Sec. 391.23(a)(1). Motor carriers are still 
required to inquire about a driver's driving record from the 
appropriate State agency in accordance with Sec. 391.23(a)(1). Accident 
information obtained from previous employers would supplement any 
information from State agencies and, therefore, provide a more 
comprehensive safety profile of the driver.
Hours-of-Service Violations Resulting in an Out-of-Service Order
    The FHWA considers a driver's hours-of-service violations to be a 
major safety indicator. The FHWA would require this information to be 
included in the employment investigation under the authority in section 
114(b)(4) of the HazMat Act that authorizes ``any other matters 
determined by the Secretary of Transportation to be appropriate and 
useful for determining the driver's safety performance,'' to be a part 
of the investigation. Drivers who violate the hours-of-service rules 
often have insufficient rest to safely operate a CMV. The fatigue and 
loss of alertness

[[Page 10551]]
resulting from insufficient rest may place them and other highway users 
at higher risk. This information, therefore, will help new and 
prospective employers identify potentially unsafe drivers.

Failure to Undertake or Complete Drug or Alcohol Rehabilitation

    The FHWA proposes to amend Sec. 391.23 so that motor carriers would 
be required to investigate whether, within the preceding three years, a 
driver failed to undertake or complete a rehabilitation program 
pursuant to 49 U.S.C. 31306 after having been found to have used drugs 
or alcohol in violation of law or Federal regulation. (Section 
114(b)(2) of the HazMat Act incorrectly references 49 U.S.C. 31302 in 
addressing this issue; the drafters of the Act clearly intended to 
reference the rehabilitation program under section 31306. This 
intention is evidenced by earlier versions of Senate Bill 1640 that 
relate the rehabilitation program to section 12020 of the Commercial 
Motor Vehicle Safety Act of 1986.)
    Under 49 U.S.C. 31306, the Secretary of Transportation is directed 
to ``prescribe regulations establishing requirements for rehabilitation 
programs that provide for the identification and opportunity for 
treatment of operators of commercial motor vehicles who are found to 
have used alcohol or a controlled substance in violation of law or a 
Government regulation.'' The regulations implementing the 
rehabilitation requirements of section 31306 appear in 49 CFR 382.605 
and apply generally to drivers of CMVs with a gross vehicle weight 
rating (GVWR) in excess of 26,000 lbs., vehicles transporting hazardous 
materials which are required to be placarded, or vehicles designed to 
transport more than 15 passengers, including the driver. Part 382 
contains alcohol and drug rules pertaining to motor carriers and 
provides procedures and regulations for referring drivers who violate 
its prohibitions to a SAP, to determine what, if any, rehabilitation 
programs are needed to resolve problems associated with alcohol misuse 
and substance abuse. Section 382.501(b) also prohibits an employer from 
using a driver who was found to have illegally used drugs or alcohol in 
a safety-sensitive function until that driver has received the 
recommended treatment.
    The amendments proposed under Sec. 391.23(c)(1)(iii) and (iv) would 
better enable a motor carrier that operates CMVs with a GVWR between 
10,000 and 26,000 lbs. in interstate commerce to comply with 
Sec. 382.501(b). Although such an employer is not subject to the entire 
part 382, he or she may not use a driver in safety-sensitive functions, 
including driving a CMV, if that driver has been found to have 
illegally used drugs or alcohol until that driver has received the 
recommended treatment. Section 391.23(c)(1)(iv) would require a motor 
carrier to investigate whether a driver had illegally used drugs or 
alcohol within the previous three years. Section 391.23(c)(1)(iii) 
would require a motor carrier to determine whether a driver had failed 
to undertake or complete recommended treatment after having been found 
to have illegally used drugs or alcohol. This information would assist 
the motor carrier that is not subject to part 382 in determining 
whether a driver was qualified to operate a CMV.
    Determining whether a driver completed rehabilitation may not 
always be a straightforward process. Section 382.605(b) requires 
employers to refer CDL holders violating the prohibitions of part 382 
to a SAP. The SAP must determine what, if any, assistance the driver 
needs in resolving problems associated with controlled substance use 
and alcohol misuse. If a SAP refers a driver to a rehabilitation 
program, the employer may not use that driver in a safety-sensitive 
function until assured that the driver has complied with the treatment 
recommended by the SAP. The employer is required to maintain records 
pertaining to a SAP's determination concerning a driver's need for 
assistance and records concerning a driver's compliance with the SAP's 
recommendations. Even if a SAP does not refer a driver to a 
rehabilitation program, the employer is still required to maintain a 
record of the SAP's evaluation.
    However, if a driver quits working for the employer before seeing a 
SAP or undertaking or completing rehabilitation, that employer is not 
required to ensure that the driver completes the SAP reference and 
evaluation process. An employer is only prohibited from using the 
driver in a safety-sensitive function until the driver complies with a 
SAP's recommendations. If the driver terminates employment before the 
SAP evaluation or rehabilitation, the employer may not know if 
rehabilitation was undertaken, completed or even recommended. A new or 
prospective employer would also have no evidence that the driver 
complied with the SAP's recommendations.
    Therefore, to comply with this requirement, a new employer would 
have to investigate whether (1) the driver was ever referred to a SAP, 
(2) the SAP referred the driver to a rehabilitation program, and (3) a 
SAP's evaluation certified the driver was qualified to return to duty.

Violations of the Prohibitions in Subpart B of Part 382

    Section 114(b)(3) of the HazMat Act mandates the investigation of 
``any use by the driver, during the preceding 3 years, in violation of 
law or Federal regulation, of alcohol or a controlled substance 
subsequent to completing such a rehabilitation program.'' This mandate 
requires that a motor carrier determine whether a driver continued to 
abuse alcohol and/or a controlled substance subsequent to treatment for 
such abuse. Section 114(b)(4) authorizes the Secretary to include in 
the required information other matters that are appropriate and useful 
to determine a driver's safety record. In conjunction with section 
114(b)(3), the FHWA proposes to execute the authority granted in 
section 114(b)(4) to clarify and enhance the substance abuse safety 
information requirement.
    Under Sec. 391.23, the FHWA proposes to require that only 
violations of the prohibitions listed in 49 CFR Part 382, subpart B, be 
required as reportable violations of ``law or Federal regulation, of 
alcohol or a controlled substance,'' pursuant to section 114(b)(3). It 
is impractical for the FHWA to enforce a rule requiring a motor carrier 
to investigate all illegal uses of drugs and alcohol. The statutory 
language, ``in violation of law or Federal regulation,'' is broad and 
includes drug and alcohol use in violation of State, Federal, or local 
law or Federal regulation. A previous employer may have knowledge of 
whether a driver used drugs or alcohol ``in violation of law or Federal 
regulation,'' but, under this part, the FHWA could only require 
employers subject to its regulations to provide it. Most employers may 
not willingly respond to such requests for fear of a lawsuit by the 
driver.
    It is more feasible to clarify the term, ``in violation of law or 
Federal regulation,'' to mean violations of the prohibitions in subpart 
B of part 382. Subpart B contains drug and alcohol regulations that 
pertain to CMV operators. Transmission of the required information will 
be aided by the fact that employers subject to part 383 already 
maintain a record of a driver's violations under part 382.
    The FHWA also proposes to utilize the section 114(b)(4) authority 
to require that all part 382, subpart B, violations occurring within 
the previous three years be transmitted to the inquiring motor carrier 
from the previous

[[Page 10552]]
employer. This requirement expands the provision that required 
violations occurring subsequent to rehabilitation be transmitted to the 
motor carrier requesting the information. The FHWA believes that a 
three-year period, as specified in section 114(b) for other required 
information, is in accordance with the intent of the HazMat Act to 
grant new and prospective employers sufficient knowledge about safety 
histories of drivers.
    Extending the reporting period to three years is also efficient 
because it may be difficult to determine when rehabilitation was 
completed. Many times when a driver is found to have illegally used 
drugs or alcohol, an employer provides the driver a list of SAPs, 
terminates the driver's employment, and makes a record of the referral. 
In this case, the employer would not know whether rehabilitation was 
recommended or completed, nor is he or she required to know. Thus, it 
could be very difficult, if not impossible, for a new or prospective 
employer to ascertain when rehabilitation was recommended or completed.
    Removing the ``after rehabilitation'' limitation would satisfy the 
intent of the HazMat Act within the authority granted FHWA and enable 
motor carriers to more easily implement the requirement. A new or 
prospective employer would only be required to know whether, during the 
past three years, the driver operated a CMV requiring a CDL under part 
383, to determine whether this information must be obtained. If so, the 
motor carrier would be required to seek the information only from 
employers that hired the driver to operate a CMV requiring a CDL under 
part 383 during the past three years.

The Driver's Written Consent for Drug or Alcohol Information

    Part 382 requires that drug and alcohol information pertaining to a 
driver be released pursuant to the terms of the driver's written 
consent. For this reason, the FHWA proposes to add Sec. 391.23(e) to 
similarly require employers to request the drug and alcohol information 
pursuant to the driver's written consent. Thus, employers could avoid 
processing delays caused when the request is not accompanied by the 
driver's written authorization.

Driver's Right to Review and Comment on Information

    The motor carrier must allow the driver a reasonable opportunity to 
review and comment on any safety information obtained. This proposal 
does not define ``a reasonable opportunity'' but proposes to leave this 
to the motor carrier's discretion. We invite public comment on whether 
it is necessary for the FHWA to define what constitutes ``reasonable 
opportunity'' and include a specific time frame for compliance.
    The driver's right to review and comment on the information is 
clearly established by section 114(a)(3) of the HazMat Act. The FHWA 
believes that the motor carrier should inform the driver of this right 
when the application for employment is completed. The driver's 
comments, if any, could be made orally or in writing. However, the 
motor carrier is not responsible for correcting any information 
obtained. The driver should contact the former employer to settle 
disputes over allegedly incorrect information.

Conforming Amendments to Part 382

    Because much of the information mandated by section 114 of the 
HazMat Act is similar to information currently shared by employers 
under part 382, conforming changes are being proposed for Secs. 382.405 
and 382.413 to ensure consistency with the HazMat Act. Accordingly, 
Sec. 382.413 would be amended to require an employer to seek 
information from former employers regarding (1) a driver's failure, 
during the preceding three years, to undertake or complete a 
rehabilitation program after being found to have violated alcohol or 
controlled substances laws or regulations, and (2) any use by the 
driver, during the preceding three years, of alcohol or a controlled 
substance in violation of 49 CFR Part 382, subpart B or the rules of 
other DOT agencies. The congressional mandate in the HazMat Act 
requires that this information be released by former employers within 
30 days, and that the driver to whom the information applies would have 
a reasonable opportunity to review and comment on the information.
    Section 382.413, as currently written, requires much of the same 
information to be shared between new and prospective employers and 
former employers as proposed in this action. Section 382.413 requires 
the sharing of information on certain violations of part 382: positive 
drug test results, alcohol results of 0.04 alcohol concentration or 
greater, and refusals to be tested. Section 114(b)(3) of the HazMat Act 
is both broader and narrower than part 382's requirements since section 
114(b)(3) mandates the sharing of information on all prohibited uses of 
drugs and alcohol by drivers, but limits the inquiry to those 
violations that occurred after completing rehabilitation. Section 
382.413(a) would be revised to include all violations of subpart B by a 
driver, not just testing violations. In addition, based on the 
authority granted by section 114(b)(4) of the HazMat Act, which 
empowers the Secretary to include other matters ``appropriate and 
useful for determining a driver's safety performance'', such violations 
would continue to include, but not be limited to, those occurring after 
rehabilitation. The FHWA believes that all violations of the 
prohibitions in part 382 are important indicators of the driver's 
safety performance.
    The information required by section 114(b)(2) of the HazMat Act 
relative to a driver's failure to complete rehabilitation (already 
required implicitly by Sec. 382.413(g)) which must be obtained before a 
violator may be permitted to return to driving would be listed as a 
separate item in Sec. 382.413(a)(1)(ii).
    It should be noted that the records required to be obtained under 
Sec. 382.413 would be limited only to those records generated under 
part 382 and the alcohol and drug testing rules of other DOT agencies 
after January 1, 1995. Interstate motor carriers must maintain their 
records, generated under part 391, for the periods of time specified in 
Sec. 382.401. Because of the significant difference between the testing 
programs in parts 382 and 391, the FHWA would not require new or 
prospective employers to obtain the information maintained by former 
employers prior to January 1, 1995, for large employers, and January 1, 
1996, for small employers. See Sec. 382.413(i).
    Other amendments are necessary to conform 49 CFR part 382 to the 
HazMat Act. First, Sec. 382.413(a)(1)(i) would extend the period of 
shared information from two to three years. Second, Sec. 382.413(h) 
would afford drivers a reasonable opportunity to review and comment on 
any information obtained by new or prospective employers under 
Sec. 382.413(a)(1). Third, Sec. 382.405(f) would allow former employers 
30 days to respond to requests for information. The amendment to 
Sec. 382.405(f) recognizes that a great majority of requests for 
testing information from former employers will occur pursuant to 
Sec. 382.413. There is no reason for two standards for response 
periods. The 30-day response period provided in the HazMat Act for 
information requests to former employers would be made a general 
standard in Sec. 382.405(f), thus applying to all requests for drug and 
alcohol testing information from employers. Of course, employers may 
only disclose a driver's drug and alcohol

[[Page 10553]]
records under part 382 pursuant to the driver's written consent.
    The current 14-day limit for new employers to obtain the 
information after first using a driver, when not feasible to do so 
before using the driver, would be extended to 30 days. Employers would 
be required to request the information from former employers as soon as 
the employer expects to use or hire the driver to drive or perform 
other safety-sensitive functions. The 30-day period should be 
sufficient to accommodate information requests and responses made by 
mail. Although there is no requirement that the inquiries and responses 
be processed by mail, the prudent employer may wish to employ the 
faster and confidential communication methods authorized in 
Sec. 382.413(e) to meet the 30-day time limit requirement.
    Part 382 would continue to require, if feasible, the employer to 
obtain the information prior to the first performance of safety-
sensitive functions by a driver. If obtaining the information prior to 
the driver's first performance of safety-sensitive functions for the 
employer is not feasible, the information would have to be obtained as 
soon as possible, but no more than 30 days after first using the driver 
to perform safety-sensitive functions.
    Beyond incorporating the HazMat Act requirements into part 382, the 
source of the violations enumerated in Sec. 382.413 would also be 
amended to include all DOT agencies'' alcohol and controlled substances 
regulations. The FHWA believes that some drivers may apply for 
positions that require driving CMVs after they have violated the 
alcohol or drug use prohibitions of another DOT agency. The FHWA has, 
therefore, included a requirement that employers request information 
from all past employers for which a driver worked in a position covered 
by the alcohol and/or drug prohibitions and testing requirements of 
another DOT agency. This would ensure that persons applying for 
positions that require operating a CMV would have all of their relevant 
records of violations investigated. It would also ensure that persons 
who test positive are evaluated by a SAP, and, before returning to 
perform safety-sensitive functions, complete a recommended 
rehabilitation program.
    Section 382.413(a)(2) was incorporated into the FMCSRs by a final 
rule published in the Federal Register on March 8, 1996, (61 FR 9546). 
That action allows previous employers to include information obtained 
from other previous employers when responding to requests for a 
driver's drug and alcohol information under Sec. 382.413(a)(1), as long 
as that information falls within the previous two- year period. Because 
the March 8, 1996, final rule was a technical amendment, the FHWA was 
unable to mandate the requirements now proposed in Sec. 382.413(a)(2). 
Such an action would have made a substantive change to the regulations 
requiring public notice before becoming a final rule. This notice 
proposes to mandate the requirements proposed in Sec. 382.413(a)(2) in 
accordance with the intent of section 114(b) of the HazMat Act by 
changing the word ``may'' to ``shall.''
    New and prospective employers should ensure that the driver's 
written consent authorizes former employers to disclose all 
prohibitions listed under Sec. 382.413(a)(1), that occurred within the 
previous three years, of which the former employer has knowledge. 
Otherwise, a former employer may be prohibited by Sec. 382.405(f) from 
passing along to the inquiring employer any Sec. 382.413(a)(1) 
information that was obtained from another previous employer. Section 
382.405(f) states that records under part 382 may only be released to a 
subsequent employer upon receipt of written authorization from a 
driver. Disclosure of the part 382 records by the subsequent employer 
is also permitted only as expressly authorized by the terms of the 
driver's signed authorization. If the driver's authorization had 
prohibited the subsequent employer from disclosing the information, 
sharing that information with the inquiring employer would be in 
violation of Sec. 382.405(f).

Rulemaking Analyses and Notices

    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination in the docket at the above address. Comments received 
after the comment closing date will be filed in the docket and will be 
considered to the extent practicable. In addition to late comments, the 
FHWA will also continue to file in the docket relevant information that 
becomes available after the comment closing date. Interested persons 
should continue to examine the docket for new material. Nevertheless, 
the FHWA may issue a final rule on this matter at any time after the 
close of the comment period.

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

    The FHWA has determined that this document does not constitute a 
significant regulatory action for the purposes of Executive Order 12866 
or a significant regulation under the regulatory policies and 
procedures of the DOT. These proposed changes to the Federal Motor 
Carrier Safety Regulations would not cause an annual impact on the 
economy of over $1 million, and they would not adversely affect a 
sector of the economy in a material way. These changes would not create 
an inconsistency or otherwise interfere with another agency's actions, 
nor do they raise novel legal or policy issues. These changes merely 
implement a recently enacted legislative mandate directing the FHWA to 
amend its regulations to require a motor carrier to request from 
previous employers specific safety information when investigating a 
driver's employment record pursuant to 49 CFR 391.23. Motor carriers 
are already required by section 391.23(a)(2) to make ``an investigation 
of the driver's employment record during the preceding three years.'' 
These proposed changes merely specify the types of information to be 
sought, increase the period of time for which carriers must record 
accident information from one to three years, direct former employers 
to respond to information requests within thirty days, and require that 
drivers be afforded an opportunity to review and comment on any 
information obtained from a former employer. Thus, in light of this 
analysis, especially the finding that the economic impact of this 
action is likely to be minimal, the FHWA has determined that a full 
regulatory evaluation is not required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small 
entities. It is anticipated that the economic impact of this rulemaking 
on all employers, regardless of size, will be minimal. This NPRM 
proposes to set forth minimum safety information that new and 
prospective employers would request when investigating a driver 
applicant's employment record. Employers are already required to 
maintain this safety information. These amendments would clarify 
existing requirements and would impose only a minor additional 
requirement on employers to record and retain accident information for 
three years instead of one. Accordingly, the

[[Page 10554]]
FHWA certifies that under the criteria of the Regulatory Flexibility 
Act this action will not have a significant economic impact on a 
substantial number of small entities.

Executive Order 12612 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612, and it has been determined 
that these proposed changes would not preempt any State law or State 
regulation, and no additional costs or burdens would be imposed on the 
States. In addition, these changes would have no effect on the States' 
ability to discharge traditional State governmental functions. Motor 
carrier safety is a matter of national concern to which Congress has 
responded by enacting section 114 of the HazMat Act which directs the 
FHWA to amend its regulations to specify the safety information a motor 
carrier must request from a driver's former employers. Thus, in light 
of the importance to the nation as a whole of ensuring that motor 
carrier vehicles are operated by safety conscious drivers, this Federal 
action regarding the safety performance history of drivers is justified 
and does not have sufficient federalism implications to warrant the 
preparation of a federalism assessment.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities apply to this program.

Paperwork Reduction Act

    This action would impact existing collection of information 
requirements for purposes of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501--3520). It would affect the period of retention for an 
existing accident record keeping requirement, extend the period of 
inquiry relating to a driver's alcohol and controlled substance 
history, and require additional information relating to a driver's 
employment investigation under Sec. 391.23 to be retained in the 
driver's qualification file. Because of these changes, existing Office 
of Management and Budget (OMB) approvals are being revised.
    Motor carriers are required under 49 CFR 390.15 to maintain and 
retain an accident register for a period of one year. That requirement 
was approved by the OMB under control number 2125-0526. This NPRM 
proposes to extend the period for which the accident register must be 
retained from one to three years under the previous OMB authority. 
Extending the retention period would enable motor carriers to satisfy, 
with an existing resource, the accident reporting requirements of 
section 114(b) of the HazMat Act for the full three-year period. The 
information collection requirements imposed by this proposed amendment 
have been submitted to the OMB under OMB Control Number 2125-0526 for 
approval under the Paperwork Reduction Act.
    Section 391.23(c) proposes to require motor carriers to request 
from previous employers information about a driver's accidents, illegal 
drug and alcohol use, failure to complete recommended treatment for 
such abuse, and certain hours of service violations. Currently, motor 
carriers are only required to request general employment information 
from the previous employer. The amendments proposed in Sec. 391.23(c) 
are mandated by Congress and would ensure that employers are cognizant 
of critical information concerning a driver's safety performance. The 
information collection requirements imposed by these proposed 
amendments have been submitted to the OMB under OMB Control Number 
2125-0065 for approval under the Paperwork Reduction Act.
    Similarly, employers of both interstate and intrastate drivers that 
must hold commercial drivers licenses are required, under 49 CFR 
382.413, to seek testing information from previous employers for only 
the preceding two years. OMB approval for that requirement was granted 
under control number 2125-0543. This NPRM would require all motor 
carriers to request three years of drug and alcohol testing information 
on new drivers who operate in interstate commerce. Therefore, employers 
subject to 49 CFR 382.413 would be required to seek drug and alcohol 
information about a driver for the previous three years instead of two. 
Additionally, not just testing information would be requested from 
former employers. Employers would be required to obtain information 
about violations of the prohibitions of subpart B of part 382 or the 
drug and alcohol rules of another DOT agency or a driver's failure to 
undertake or complete recommended treatment. These conforming 
amendments are mandated by section 114 of the HazMat Act. The 
information collection requirements imposed by these proposed 
amendments have been submitted to the OMB under OMB Control Number 
2125-0543 for approval under the Paperwork Reduction Act. The FHWA 
requests public comment on these new and revised paperwork collection 
requirements.

National Environmental Policy Act

    This agency has analyzed this proposed action for the purpose of 
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) 
and has determined that it would not have any effect on the quality of 
the environment.

Regulation Identification Number

    A regulatory identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

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

    Alcohol concentration, Alcohol testing, Commercial motor vehicles, 
Controlled substances testing, Drivers, Driver qualifications, Highway 
safety, Highways and roads, Hours of Service, Intermodal 
transportation, Motor carriers, Motor vehicle safety, Reporting and 
recordkeeping requirements, Safety, Transportation.

    Issued on: March 6, 1996.
Rodney E. Slater,
Federal Highway Administrator.

    In consideration of the foregoing, the FHWA proposes to amend title 
49, CFR, subtitle B, chapter III, parts 382, 383, 390, and 391 as set 
forth below:

PART 382--[AMENDED]

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

    Authority: 49 U.S.C. 31133, 31136, 31301 et seq., 31502; sec. 
114, Pub. L. 103-311, 108 Stat. 1673, 1677; and 49 CFR 1.48.

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


Sec. 382.405  Access to facilities and records.

* * * * *
    (f) Records shall be made available, within 30 days, to a 
subsequent employer upon receipt of written authorization from a 
driver. Disclosure by the subsequent employer is permitted only as 
expressly authorized by the terms of the driver's signed authorization.
* * * * *
    3. Section 382.413 is revised to read as follows:
    
[[Page 10555]]



Sec. 382.413  Inquiries for alcohol and controlled substances 
information from previous employers.

    (a) (1) An employer, including a prospective employer, shall, 
pursuant to the driver's written authorization, inquire about the 
following information relating to the driver from the driver's previous 
employers:
    (i) Violations of the prohibitions contained in subpart B of this 
part, or the alcohol or controlled substances rules of other DOT 
agencies, during the past three years; and
    (ii) Failure to undertake or complete a rehabilitation program 
prescribed by a substance abuse professional pursuant to Sec. 382.605, 
or the alcohol or controlled substances rules of another DOT agency, 
during the past three years.
    (2) The information obtained from a previous employer must contain 
any alcohol and drug information the previous employer obtained from 
other previous employers under paragraph (a)(1) of this section.
    (b) If feasible, the information in paragraph (a) of this section 
must be obtained and reviewed by the employer prior to the first time 
the driver performs safety-sensitive functions for the employer. If not 
feasible, the information must be obtained and reviewed as soon as 
possible, but no later than 30 calendar days after the first time a 
driver performs safety-sensitive functions for the employer. An 
employer shall not permit a driver to perform safety-sensitive 
functions after 30 days without having made a good faith effort to 
obtain the information as soon as possible. If a driver hired or used 
by the employer ceases performing safety-sensitive functions for the 
employer before expiration of the 30-day period or before the employer 
has obtained the information in paragraph (a) of this section, the 
employer must still make a good faith effort to obtain the information.
    (c) An employer shall maintain a written, confidential record of 
the information obtained under paragraph (a) or (f) of this section. 
If, after making a good faith effort, an employer is unable to obtain 
the information from a previous employer, a record shall be made of the 
efforts to obtain the information and retained in the driver's 
qualification file.
    (d) The new/prospective employer must provide to each of the 
driver's previous employers the driver's specific, written 
authorization for release of the information in paragraph (a) of this 
section.
    (e) The release of any information under this section may take the 
form of personal interviews, telephone interviews, letters, or any 
other method of transmitting information that ensures confidentiality. 
The written authorization for release of this information may be 
transmitted to the previous employer by any method that ensures 
confidentiality.
    (f) The information in paragraph (a) of this section may be 
provided directly to the prospective employer by the driver, provided 
the employer assures itself that the information is true and accurate.
    (g) An employer may not use a driver to perform safety-sensitive 
functions if the employer obtains information on a violation of the 
prohibitions in subpart B of this part by the driver, without obtaining 
information on subsequent compliance with the referral and 
rehabilitation requirements of Sec. 382.605 of this part.
    (h) An employer shall afford the driver a reasonable opportunity to 
review and comment on any information obtained by the employer under 
paragraph (a) of this section. The employer shall notify the driver of 
this provision at the time of application for employment.
    (i) Employers need not obtain information under paragraph (a) of 
this section generated by previous employers prior to the starting 
dates in Sec. 382.115 of this part.

PART 383--[AMENDED]

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

    Authority: 49 U.S.C. 3102, 31101 et seq.; and 31136; sec. 114, 
Pub. L. 103-311, 108 Stat. 1673, 1677; and 49 CFR 1.48.

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


Sec. 383.35  Notification of previous employment.

* * * * *
    (f) Before an application is submitted the employer shall inform 
the applicant that the information he/she provides in accordance with 
paragraph (c) of this section may be used, and the applicant's previous 
employers will be contacted, for the purpose of investigating the 
applicant's work history. The employer shall also inform the applicant 
that he/she will be provided an opportunity to review and comment on 
any information obtained from previous employers.

PART 390--[AMENDED]

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

    Authority: 49 U.S.C. 5901-5907, 31132, 31133, 31136, 31502, and 
31504; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677; and 49 CFR 
1.48.

    7. Section 390.15 is revised to read as follows:


Sec. 390.15  Assistance in investigations and special studies.

    (a) A motor carrier shall make all records and information 
pertaining to an accident available to an authorized representative or 
special agent of the Federal Highway Administration upon request or as 
part of any inquiry within such time as the request or inquiry may 
specify. A motor carrier shall give an authorized representative of the 
Federal Highway Administration all reasonable assistance in the 
investigation of any accident including providing a full, true and 
correct response to any question of the inquiry.
    (b) Motor carriers shall maintain for a period of three years after 
an accident occurs, an accident register containing at least the 
following information:
    (1) A list of accidents containing for each accident:
    (i) Date of accident,
    (ii) City or town in which or most near where the accident occurred 
and the State in which the accident occurred,
    (iii) Driver name,
    (iv) Number of injuries,
    (v) Number of fatalities, and
    (vi) Whether hazardous materials, other than fuel spilled from the 
fuel tanks of motor vehicle(s) involved in the accident, were released.
    (2) Copies of all accident reports required by State or other 
governmental entities or insurers.
    (c) Motor carriers shall make available, within 30 days after 
receiving a request for information about a driver's accident record 
from a new or prospective employer, all records and information within 
the accident register that pertain to that driver's accident record.

PART 391--[AMENDED]

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

    Authority: 49 U.S.C. 504, 31133, 31136, and 31502; sec. 114, 
Pub. L. 103-311, 108 Stat. 1673, 1677; and 49 CFR 1.48.

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


Sec. 391.21  Application for employment.

* * * * *
    (d) Before an application is submitted, the motor carrier shall 
inform the applicant that the information he/she provides in accordance 
with paragraph (b)(10) of this section may be used, and the applicant's 
prior employers will be

[[Page 10556]]
contacted for the purpose of investigating the applicant's background 
as required by Sec. 391.23. The employer shall also inform the 
applicant that he/she will be provided an opportunity to review and 
comment on any information obtained from previous employers.
    10. In Sec. 391.23, paragraph (c) is revised and new paragraphs (d) 
and (e) are added to read as follows:


Sec. 391.23  Investigation and inquiries.

* * * * *
    (c) The investigation of the driver's employment record required by 
paragraph (a)(2) of this section must commence as soon as possible, but 
no later than 30 days after the date the driver's employment begins. 
The investigation shall consist of personal interviews, telephone 
interviews, letters of inquiry, or any other method of obtaining 
information that the motor carrier deems appropriate. Each motor 
carrier must make a written record with respect to each previous 
employer that was contacted. The record must include the previous 
employer's name and address, the date the previous employer was 
contacted, and its comments with respect to the driver. The record 
shall be maintained in the driver's qualification file.
    (1) The following information, as a minimum, must be obtained from 
all previous employers that employed the driver to operate a commercial 
motor vehicle:
    (i) Any accidents, as defined by Sec. 390.5 of this subchapter, in 
which the driver was involved during the preceding three years;
    (ii) Any hours-of-service violations resulting in an out-of-service 
order being issued to the driver within the preceding three years;
    (iii) Any failure of the driver, during the preceding three years, 
to undertake or complete a rehabilitation program pursuant to 
Sec. 382.605, after being found to have used, in violation of law or 
Federal regulation, alcohol or a controlled substance;
    (iv) Any use by the driver, during the preceding three years, in 
violation of law or Federal regulation, of alcohol or a controlled 
substance subsequent to completing such a rehabilitation program.
    (2) Previous employers shall respond to requests for the 
information in paragraph (c)(1) of this section within 30 days after 
the request is received.
    (d) The motor carrier shall afford the driver a reasonable 
opportunity to review and comment on any information obtained during 
the employment investigation, including the information described in 
paragraph (c)(1) of this section. The motor carrier shall notify the 
driver of this right at the time of application for employment.
    (e) The information required under paragraphs (c)(1)(iii) and (iv) 
of this section must be obtained pursuant to the driver's written 
authorization.

[FR Doc. 96-6130 Filed 3-13-96; 8:45 am]
BILLING CODE 4910-22-P