[Federal Register Volume 68, Number 137 (Thursday, July 17, 2003)]
[Proposed Rules]
[Pages 42339-42360]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18137]


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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: Supplemental notice of proposed rulemaking (SNPRM); request for 
comments.

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

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

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

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

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

[[Page 42340]]

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

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

Background

    Section 391.23 of Title 49 of the Code of Federal Regulations 
(CFR), Investigations and Inquiries, sets forth a motor carrier's 
responsibility to check the driving record and investigate the 
employment history of a new driver. The section directs the motor 
carrier to investigate information about the employment history from a 
driver's previous employers during the last three years. It does not 
specify what type of information must be investigated. The driver's 
driving records are to be obtained from each State in which the driver 
held a motor vehicle operator's license or permit during the preceding 
three years. These inquiries and investigations must be completed 
within 30 days of hiring the new employee. Currently, there is no 
specification of what information must be investigated, or a 
requirement for a current or previous employer to respond to such 
investigations. Consequently, many former employers refuse to respond 
to employment investigations, while others--for fear of litigation--
merely verify that the driver worked for the carrier and provide the 
driver's dates of employment.
    The Hazardous Materials Transportation Authorization Act of 1994 
was signed into law on August 26, 1994 (Pub. L. 103-311, 108 Stat. 
1677) (HazMat Act), partly codified at 49 U.S.C. 5101-5127. Section 114 
of the HazMat Act directed the Secretary of Transportation to amend 
Sec.  391.23 to specify minimum safety information to be investigated 
from previous employers when performing employment record 
investigations on driver candidates and newly hired drivers. A copy of 
section 114 of the HazMat Act is included in the docket as document 37. 
Section 114 specified that a motor carrier must investigate a driver's 
3-year accident record, and drug and alcohol history, from employers 
the driver worked for within the previous three years. Current or 
previous employers must be required to respond to the investigating 
employer within thirty days of receiving the investigation request.
    The agency published the NPRM for implementing regulations in the 
Federal Register on March 14, 1996 (61 FR 10548). A copy of the NPRM is 
in docket FMCSA-1997-2277.

Summary of NPRM

    The March 14, 1996, NPRM proposed changes to 49 CFR part 391 
(Qualification of Drivers), with proposed conforming amendments to 
parts 382 (Controlled Substances and Alcohol Use and Testing), 383 
(Commercial Driver's License Standards; Requirements and Penalties), 
and 390 (Federal Motor Carrier Safety Regulations; General). The agency 
proposed under Sec.  391.23 that motor carriers investigate the 
following minimum safety information from the previous 3-year period 
from all employers who employed the driver during that time: (1) Hours-
of-service violations that resulted in an out-of-service order, (2) 
accidents as defined under Sec.  390.5, (3) failure to undertake or 
complete a rehabilitation program recommended by a substances abuse 
professional (SAP) under Sec.  382.605, and (4) any ``misuse'' of 
alcohol or use of a controlled substance by the driver after he/she had 
completed a Sec.  382.605 SAP referral. The existing Sec.  391.23(b) 
requirement to obtain a driver's driving record(s) from the State(s) 
would be retained. To harmonize Sec.  391.23(e) with then current drug 
and alcohol regulations under Sec.  382.413, the agency also proposed 
the motor carrier obtain the driver's written authorization to 
investigate the required drug and alcohol information.
    Current and former employers would be required to respond to an 
investigating employer within 30 days of receiving an investigation 
request. The investigating motor carrier would have to afford the 
driver a reasonable opportunity to review and comment on any 
information obtained during the employment investigation, and would 
have to inform the driver of this right at the time of application for 
employment. Conforming changes were also proposed to Sec. Sec.  
383.35(f) and 391.21(d) to reinforce the driver notification 
requirement.
    Further, the agency proposed under Sec.  390.15 to change the 
required retention period for the accident register maintained by motor 
carriers from one year to three years, and to begin requiring motor 
carriers to provide information from the accident register in response 
to all prospective employer investigations pursuant to Sec.  391.23. 
These provisions would facilitate the proposal requiring investigation 
of accident information by prospective employers by expanding a source 
of accident data that was already being collected and maintained by 
motor carriers for other purposes.
    When the NPRM was published in 1996, the agency drug and alcohol 
regulations codified at 49 CFR part 382 required employers to 
investigate: (1) Alcohol tests with a result of 0.04 or greater alcohol 
concentration, (2) verified positive controlled substances test 
results, and (3) refusals to be tested. Section 382.413(a)(2) allowed a 
previous employer to pass along drug and alcohol test information 
received from other previous employers (as long as the information 
covered actions occurring within the previous two-year period). Under 
Sec.  382.413(b), if an employer found that it was not feasible to 
obtain the drug and alcohol information prior to the first time a 
driver performed a safety-sensitive function for the employer, that 
employer could continue to use the driver in a safety sensitive 
function for up to 14 calendar days. After that time period, the 
employer could not use the driver in a safety-sensitive function unless 
the requisite information was obtained, or the employer had made a good 
faith effort to obtain it.
    In its 1996 NPRM, the agency also proposed numerous conforming 
amendments to expand the type of drug and alcohol information that 
should be sought under Sec.  382.413(a). Employers would be required to 
investigate whether, in the past 3 years, a driver had: (1) Violated 
the prohibitions in subpart B of part 382, or the alcohol or controlled 
substances rules of other DOT agencies; and (2) failed to undertake or 
complete a SAP's rehabilitation referral pursuant to Sec.  382.605, or 
the alcohol or controlled substances rules of another DOT agency. 
Beyond incorporating the HazMat Act requirements into part 382, the 
violations enumerated in Sec.  382.413 would also have been included in 
the alcohol and controlled substances regulations of ``all DOT 
agencies.'' At that time, FHWA believed that some drivers might apply 
for positions that require driving a CMV after having violated the 
alcohol or drug use prohibitions of another DOT agency. Therefore, the 
agency included a requirement for an employer to investigate 
information from all past employers for which a driver had worked in a 
position covered by the alcohol and/or drug prohibitions and testing 
requirements of another DOT

[[Page 42341]]

agency. That could have helped to ensure that persons applying for 
positions that require operating a CMV would have all of their relevant 
records of violations investigated. It would also have ensured that a 
SAP evaluated persons who test positive, and that violators completed a 
recommended rehabilitation program before returning to perform safety-
sensitive functions.
    The Sec.  382.413(a)(2) requirement to pass along drug and alcohol 
information received from other previous employers when responding to 
an employer's investigation under Sec.  382.413 was subsequently 
incorporated into the FMCSRs as a technical amendment in a final rule 
published in the Federal Register on March 8, 1996, (61 FR 9546). 
However, because Sec.  382.413(a)(2) constituted a substantive change 
which should be subject to public notice and comment before becoming a 
final rule, the agency also included it in the March 14, 1996 NPRM.
    In a related change proposed under Sec.  382.405, disclosure of the 
information pursuant to Sec.  382.413(a) would have required the 
driver's written authorization, and responding employers would have 
been required to reply within 30 days of receiving the investigation 
request.
    Under proposed Sec.  382.413(b), the agency would have extended the 
time period allowed to use a driver in a safety-sensitive function 
without having received the requisite drug and alcohol information from 
14 days to 30 days. After 30 days, the employer would have been 
prohibited from continuing to use the driver to perform safety 
sensitive functions without having received, or having documented a 
good faith effort to obtain, the driver's drug and alcohol history.

Discussion of Comments to the NPRM

Small Business Administration Concerns

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

Employer Liability and Driver Rights

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

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

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

[[Page 42342]]

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

[[Page 42343]]

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

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

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

[[Page 42344]]

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

Drug and Alcohol Reporting

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

Accidents

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

Employment History Form

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

Summary of the SNPRM

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

[[Page 42345]]

employers to make sound hiring decisions. The procedures proposed in 
this SNPRM will enable obtaining more complete driver safety 
performance information by motor carriers. It will also maximize the 
use of this information by providing a limitation on liability of those 
providing and using this information, while subjecting them to 
administrative controls to protect driver privacy.
    The SNPRM specifies minimum safety performance history data that a 
motor carrier must investigate about a driver's employment history 
under the proposed Sec.  391.23(d) and (e). It differs from the NPRM 
by: (1) Refining the list of what information is to be investigated 
from previous employers, (2) establishing employer protections for 
providing and using the safety performance history information, (3) 
clarifying drivers' rights to review, correct or rebut information 
provided, (4) providing enhanced Regulatory Flexibility Act and 
Paperwork Reduction Act analyses, and (5) dropping conforming 
amendments to part 382 because they were already addressed under 
separate rulemakings discussed in the preamble.
    FMCSA has refined the safety performance history data list in 
response to comments to the docket and because of changes to agency 
drug and alcohol regulations made by recent rulemakings. Section 4014 
of the TEA-21 mandated the new employer liability limitation and driver 
protections being proposed. Enhanced Regulatory Flexibility analysis is 
provided in response to comments to the docket from the Small Business 
Administration.

Impacts of Other Related Rulemakings

Recent Changes in Alcohol and Controlled Substance Regulations

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

[[Page 42346]]

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

Request for Comments

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

Rulemaking Analyses and Notices

Regulatory Notices

    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.) You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://dms.dot.gov.

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

    The FMCSA has determined this action is a significant regulatory 
action within the meaning of Executive Order 12866, and is significant 
within the meaning of Department of Transportation regulatory policies 
and procedures (44 FR 11034, February 26, 1979). It has been reviewed 
by the Office of Management and Budget. The subject of requirements for 
background checks of prospective driver safety performance history 
information will likely generate considerable public interest within 
the meaning of Executive order 12866. We have classified the rule as 
significant because of the high level of public and congressional 
interest in the rule.
    This SNPRM modifies an earlier notice of proposed rulemaking by: 
(1) Including an expanded discussion of the economic and information 
collection burdens of the proposal, (2) setting limitations on employer 
liability for using and providing the safety performance history data 
of a driver by including the requirements of section 4014 of TEA-21 
codified at 49 U.S.C. 508, and (3) establishing the Act's required due 
process rights of drivers. FMCSA anticipates that the economic impact 
of this SNPRM will not exceed the annual $100 million threshold for 
economic significance.
    Under a following section of this SNPRM entitled ``Regulatory 
Evaluation: Summary of Benefits and Costs,'' the agency estimated the 
first-year costs to implement this rule would amount to approximately 
$10 million. Total discounted costs over the 10-year analysis period 
(2003-2012) would be $76 million, using a discount rate of seven 
percent. All these costs are associated with the statutorily mandated 
requirements of section 114 of the Hazmat Act and section 4014 of TEA-
21. The first-year net benefits associated with this rule would be 
negative. Total discounted benefits over the 10-year analysis period 
(2003-2012) would be equal to $88 million. Total discounted net 
benefits from implementing this rule would equal $12 million over the 
10-year analysis period (2003-2012).

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement and Fairness Act (SBREFA), requires 
Federal agencies to analyze the impact of rulemakings on small 
entities, unless the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
In response to SBA's request for more information on the economic 
impact of this proposed rule upon small entities, and the determination 
that this is considered a significant rulemaking proposal, the agency 
has prepared an initial regulatory evaluation and the following RFA 
analysis.
    (1) A description of the reasons why action by the agency is being 
considered. A large number of motor carriers must hire drivers to 
operate large commercial motor vehicles on the nation's roads and 
highways. These drivers are responsible for safe, secure and reliable 
operation of these vehicles on the nation's roads and highways. Public 
concern regarding the safety of commercial motor vehicles and their 
operators has heightened awareness of the limited driver safety 
performance information available to prospective motor carrier 
employers when making hiring decisions. If prospective employers had 
access to more information about driver safety performance history it 
would enable employers to make more informed decisions regarding the 
relative safety risk of drivers who apply for employment.
    With enactment of section 114 of the HazMat Act, Congress directed 
FMCSA to revise its safety regulations to specify additional minimum 
driver safety performance information a prospective employer must 
investigate from previous employers. Additionally, the HazMat Act sets 
a time limit for previous employers to respond to the investigations, 
and provides the driver an opportunity to review and, if necessary, 
correct or rebut the safety performance information provided by current 
or previous employers to the prospective employer.
    In response to industry concerns about the legal liability which 
would arise from providing information about driver employment safety 
history, Congress determined that the societal importance of this 
information is sufficient to grant limited liability to motor carriers 
by preempting State and local laws and regulations creating liability. 
This is carried out in section 4014 of TEA-21. The liability limitation 
applies to prospective and previous employers, their agents, and their 
insurance providers from defamation suits when investigating, using or 
providing accurate information about safety performance histories of 
their drivers. The right of drivers to review such employer 
investigation records, and to have them corrected or include a rebuttal 
from the driver, is made statutory. FMCSA is directed to develop 
procedures for implementing these requirements as part of the changes 
to Sec.  391.23 mandated by section 114 of the HazMat Act.
    (2) A succinct statement of the objectives of, and legal basis for, 
the proposed rule. The legal bases for this proposed rule are the 
Congressional directives contained in section 114 of the HazMat Act and 
section 4014 of TEA-21. Congressional intent is to ensure prospective 
motor carriers have

[[Page 42347]]

access to increased information about the safety performance history of 
drivers, including access to investigation information from prior 
employers about driver applicants.
    Regulations at Sec.  391.23(a)(2) and (c) currently require 
prospective employers to investigate a driver's employment record with 
previous employers. The regulations do not specify what information 
prospective employers must investigate, nor do they require previous 
employers to respond to investigations received from prospective 
employers. Comments to the docket for this rulemaking such as those 
from Dart and Fleetline, Food Distributors International, Interstate 
Truckload Carriers Conference, American Movers Conference, United Motor 
Coach Association, and the National Private Truck Council state that 
many previous employers are either not responding, or not providing any 
information other than verification of employment and dates.
    Further, comments to docket FMCSA-2001-9664 state that many 
previous employing motor carriers either do not respond to 
investigations for alcohol and controlled substances information, or do 
so belatedly, making the data of questionable value in the hiring 
decisions. Docket 9664 contains the Federal Register notice and 
numerous comments regarding the requirement of section 226 of MCSIA for 
a Report to Congress on the possibility of requiring employers to 
report positive controlled substances test results and for prospective 
employers to check such a computer source for the existence of such 
information as part of the hiring decision process. A copy of section 
226 of MCSIA is included in the docket as document 40.
    The objective of this proposed rulemaking is to improve the 
quantity and quality of investigations made to previous employers, as 
well as the quantity, quality and timeliness of background driver 
safety performance information provided to prospective employers. This 
should foster more informed employment judgments about the safety risks 
of potential new employees, while affording drivers the opportunity to 
review and comment on the accuracy of information provided by previous 
employers.
    This proposed regulation specifies minimum information that must be 
investigated, and proposes process modifications to facilitate this 
information exchange so as to minimize the reporting burden, including 
establishing the limit on potential liability of employers, their 
agents and insurance providers from defamation lawsuits, etc.
    (3) A description of, and, where feasible, an estimate of the 
number of small entities to which the proposed rule will apply. This 
proposal will apply to all motor carrier employers regulated by the 
FMCSRs whose employees apply to work for a motor carrier in interstate 
commerce. This includes small motor carriers as well as numerous 
entities in other industries covered by the FMCSRs because they operate 
their own private commercial motor vehicles. Examples include drivers 
who operate CMVs in industrial categories such as: bakeries, petroleum 
refiners, retailers, farmers, bus and truck mechanics, cement masons 
and concrete finishers, driver/sales workers, electricians, heating, 
air conditioning and refrigeration mechanics and installers, highway 
maintenance workers, operating engineers and other construction 
equipment operators, painters construction and maintenance workers, 
plumbers, pipefitters and steamfitters, refuse and recyclable material 
collectors, roofers, sheet metal workers, telecommunications equipment 
installers and repairers, welders, cutters, solderers, and brazers.
    The SBA regulations at 13 CFR part 121 specify Federal agencies 
should analyze the impact of proposed and final rules on small 
businesses using the SBA Small Business Size Standards. Where SBA's 
standards do not appropriately reflect the effects of a specific 
regulatory proposal, agencies may develop more relevant size 
determinants for rulemaking.
    The regulatory evaluation below estimates the number of driver 
hiring decisions affected by this proposed rule at approximately 
419,000 annually. This estimate is a function of three components, 
including (1) annual driver turnover within the industry, (2) annual 
employment growth within the industry, and (3) an increase in the 
number of drivers required to fill vacancies left by those denied 
employment when the background information proposed in this SNPRM 
becomes available to prospective employers.
    It is difficult to determine exactly how many existing motor 
carriers would be affected by this proposed rule, since it is not known 
year-to-year how many employers on average hire drivers. However, it is 
known from the Motor Carrier Management Information System (MCMIS) that 
there are approximately 500,000 active motor carriers currently 
operating in interstate commerce in the United States (this includes 
both for-hire and private motor carriers, but deducts a number of 
carriers believed not to be currently operating but still having files 
within MCMIS). Data from the 1997 Economic Census (U.S. Census Bureau), 
Standard Industrial Classification (SIC) Code 4213 ``Trucking, Except 
Local'' indicates that over 90 percent of trucking firms in that SIC 
code had less than $10 million in annual sales in 1997 ($10 million in 
annual revenues represents the threshold for defining small motor 
carriers in this analysis).
    Because the FMCSA does not have annual sales data on private 
carriers, we assume the revenue and operations characteristics of the 
private trucking firms would be generally similar to those of for-hire 
motor carriers. Using the 90-percent estimate to identify the small 
business portion of the existing industry indicates that 450,000 out of 
500,000 total existing motor carriers could be defined as small 
businesses within this industry. Also, we had estimated that a net 
419,000 hiring decisions would be affected by this proposed rule 
annually. These 419,000 net annual hirings within the industry 
represent 14 percent of the total three million drivers currently 
employed within the trucking industry. To be conservative, we assumed 
that 14 percent of existing motor carriers would be filling the 14 
percent of driver positions each year. Therefore, 14 percent of 
existing motor carriers translates to 70,000 out of the 500,000 
existing motor carriers who would be hiring drivers each year.
    We conservatively assumed that these 70,000 hiring employers would 
bear the full cost of the data retention and reporting on the 419,000 
drivers to be hired each year for the driver data search, duplication, 
and reporting costs incurred by previous employers for providing the 
information. (This may not be true based on FMCSA policy that the 
previous employer cannot demand payment as a condition for releasing 
the data.) Conversely, if we assumed previous employers would bear 
these costs (and we assume at least one previous employer to each 
driver over the past three years), we could divide compliance costs by 
140,000 carriers. However, to ensure we do not underestimate the impact 
to small employers, we will stick with the 70,000 estimate.
    Total discounted compliance costs of this proposed rule are 
estimated at $76 million over the 10-year analysis period (2003-2012), 
while first-year costs (in 2003) are estimated at $10 million. If we 
divide these first-year costs by the 70,000 hiring companies estimated 
to be hiring drivers within a given year, the

[[Page 42348]]

result is a total compliance cost of roughly $143 per motor carrier in 
the first year of implementation.
    Data from the 1997 Economic Census, SIC 4213 (derived from NAICS 
Categories 484121, 484122, 484210, and 484230) divides trucking firms 
into 11 revenue categories, beginning with those firms generating less 
than $100,000 in annual gross revenues and ending with those generating 
$100 million or more. As stated, ``small'' trucking firms are defined 
here as those that generate less than $10 million in annual revenues. 
The 1997 Economic Census divides these firms into eight specific 
revenue categories. The annual revenue categories, the number of firms 
in each, and the average annual revenues of firms in each category are 
listed below in Table 1.

   Table 1.--Average Annual Revenues of Small Trucking Firms (SIC 4213, ``Trucking, Except Local), by Revenue
                                                    Category
----------------------------------------------------------------------------------------------------------------
                                                                             Compliance costs   Average pre-tax
                                      Number of firms/%    Average annual    ($143), as % of    profit margins,
     Revenue category ($1,000s)         of total small        revenues        avg. revenues     by revenue size
                                            firms            ($1,000s)           percent           (percent)
----------------------------------------------------------------------------------------------------------------
<$100...............................         1,487 (5%)                $67               0.21                9.5
$100-$249.9.........................        8,715 (30%)                160               0.09                9.5
$250-$499.9.........................        5,687 (19%)               $356               0.04                9.5
$500-$999.9.........................        4,890 (17%)                710              <0.01                9.5
$1,000-$2,499.9.....................        4,819 (16%)              1,580              <0.01                2.8
$2,500-$4,999.9.....................         2,414 (8%)              3,490              <0.01                2.9
$5,000-$9,999.9.....................         1,407 (5%)              7,000              <0.01                3.5
                                     --------------------
Total...............................      29,419 (100%)  .................  .................  .................
----------------------------------------------------------------------------------------------------------------
 Source: 1997 Economic Census, Sales Size of Firms, NAICS Categories 484121, 484122, 484210, and 484230
  aggregated to SIC 4213.

    We applied the total first-year regulatory compliance costs ($10 
million) to the number of existing motor carriers in the industry we 
anticipated would be hiring drivers in that year (70,000). As seen in 
the above table, the compliance costs of this proposed rule per 
existing motor carrier ($143) represent 0.21 percent (or a little more 
than 2/10 of one percent) of gross annual revenues of the smallest 
firms (i.e., those with annual gross revenues less than $100,000). For 
the second smallest revenue group, compliance costs represent 0.09 
percent of gross revenues in the first year.
    Data obtained from Robert Morris Associates (RMA) in 1999 on pre-
tax profit margins of trucking firms in SIC Code 4213 are contained in 
the right-hand column of the above table. For all firms with less than 
$1 million in annual revenues, the RMA listed average pre-tax profit 
margins of 9.5 percent. Since the 1997 Economic Census data had 
additional revenue categories, FMCSA applied the same profit margins 
(9.5%) to all firms with annual revenues of less than $1 million. The 
data reveal that total discounted 10-year costs to existing motor 
carriers would reduce, although not eliminate average pre-tax profits 
for carriers in any of the carrier revenue groups. The smallest revenue 
group in this table (<$100,000 annual revenues), which represents 5 
percent of the firms in the Economic Census table, would experience an 
average reduction in pre-tax profit margins of 2.2 percent (0.25/
9.5=2.2%). For the second smallest revenue group ($100--249.9), which 
represents 30 percent of the small carriers in this motor carrier 
group, pre-tax profit margins are reduced by about 0.9 percent. For the 
third smallest revenue group, the annual compliance costs associated 
with this proposed rule are expected to reduce these carriers' average 
pre-tax profit margins by 0.4 percent.
    (4) A description of the proposed reporting, recordkeeping and 
other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities which will be subject to the 
requirements and the type of professional skills necessary for 
preparation of the report.
Reporting. No new reporting to the Federal government or a State is 
required. New reporting is required by all motor carrier employers of 
the previous three years to prospective motor carrier employers. For 
employees who assert their right to disagree with the investigative 
driver safety performance data reported by that previous employer, 
those previous employers will also be required to work with their 
previous employees.
    In the case of alcohol and controlled substances all previous 
employers subject to DOT drug and alcohol regulations or their agents, 
are required by 49 CFR 40.25(h) to report specified minimum employer 
investigative safety performance history data for their previous 
employees to prospective employers upon receiving an investigation.
    Data to be provided would include at least the following:
    1. Information verifying the driver worked for that employer and 
the dates of employment.
    2. The driver's three-year alcohol and controlled substances 
history, an increase of one year from the two-year history now 
required, which will make it the same as the already required three-
year retention of this data.
    3. Information indicating whether the driver failed to undertake or 
complete a rehabilitation referral prescribed by a SAP within the 
previous three years, but only if that information is recorded with the 
responding previous employer. Previous employers would not be required 
to seek alcohol and controlled substance data they are not already 
required to retain by part 382.
    4. Information indicating whether the driver illegally used alcohol 
and controlled substances after having completed a rehabilitation 
referral, but only if recorded with the responding previous employer. 
Previous employers would not be required to seek alcohol and controlled 
substances data they are not already required to retain by part 382.
    5. Information indicating whether the driver was involved in any 
accidents as defined in Sec.  390.5.
    Previous employers or their agents for three years after a driver 
leaves their employ will be required to respond within 30 days to 
investigations from prospective motor carriers about an applicant and 
provide at least the minimum information specified in this proposed 
rulemaking.
    Motor carriers are already required to respond to alcohol and 
controlled

[[Page 42349]]

substances inquiries under part 382. However, requests for that data 
are the last information requested in the screening process because of 
the requirement for a signed authorization to release any such data, 
and this occurs only for that portion of drivers still under 
consideration for employment. This proposed rule would enhance the 
ability to take enforcement action if a previous employer does not 
provide the information required in a timely manner.
    All small entities for the previous three years would now be 
required to provide their employment investigative safety performance 
history data. That data, minus the alcohol and controlled substances 
data, likely would be requested routinely for all driver applicants 
from all previous motor carriers as part of the initial employment 
screening process that does not require signed authorization. For those 
drivers still under consideration for employment, the same previous 
employers could receive a subsequent second request for the alcohol and 
controlled substances information.
    The 1997 CDL Effectiveness study contained a report of a focus 
group meeting of motor carrier safety directors. (CDL Focus Group 
Study, November 1996, copy of the Safety Director comments are included 
in docket as document 41.) It documents that a number of motor carriers 
require drivers to have obtained previous experience driving a CMV 
before that motor carrier will hire the driver. If some employers 
operate more as employers of entry-level drivers, then they could often 
be required to provide investigation information, but not get much 
benefit of receiving such investigations from other previous employers. 
In such cases, if the motor carriers furnishing the investigation data 
are small entities, the costs could potentially rise to the level of a 
significant economic impact on a substantial number of small entities.
    If such entities are unable to insist on receiving payment for the 
costs of performing this function prior to releasing the data because 
of FMCSA policy, there could be a negative impact on them. FMCSA 
requests comments on how significant this might be.
    Recordkeeping. It is a largely accepted industry practice that 
alcohol and controlled substance information is kept separately from 
the driver qualification file. This is a practical arrangement that 
assists employers to easily defend that the data is adequately secured 
and access to it is controlled, in compliance with the recordkeeping 
requirements of part 382.
    Employers are currently required by Sec.  391.23(c) to keep prior 
employer furnished investigative information in the driver 
qualification file. Because 49 U.S.C. 508 restricts previous employer 
investigative data to just the hiring decision, this SNPRM proposes 
changing the specification of where previous employer investigative 
information is kept to instead be with the alcohol and controlled 
substance data in the already established controlled access, secure 
file. Because such a file already exists, there should be no 
significant impact on recordkeeping requirements of prospective 
employers.
    Professional skills. Motor carriers are already required to provide 
alcohol and controlled substances data. That function requires a person 
who is designated as having controlled access to that data. The 
addition of reporting accident data could be an added responsibility of 
the person already required to report the alcohol and controlled 
substances data.
    (5) An identification, to the extent practicable, of all Federal 
rules which may duplicate, overlap, or conflict with the proposed rule. 
The Fair Credit Reporting Act (FCRA) specifies procedures that must be 
followed by consumer reporting agencies when providing inquiry and 
investigative data to motor carriers as part of the hiring decision 
process. If such a consumer reporting agency is also the agent of a 
motor carrier, then there could be overlap between proposals in this 
SNPRM and the FCRA.
    (6) A description of any significant alternatives to the proposed 
rule which accomplish the stated objectives of applicable statutes and 
which minimize any significant economic impact of the proposed rule on 
small entities. The FHWA published an NPRM on March 14, 1996 (61 FR 
10548) following the detailed prescriptive specifications contained in 
section 114 of the HazMat Act. It proposed processes for investigations 
with previous employers and use of that data in the hiring decision 
process. This SNPRM responds to additional prescriptive requirements 
contained in section 4014 of TEA-21, and to concerns expressed by 
various commenters, including the SBA. FMCSA believes that the 
alternatives discussed in this SNPRM are the ones available to the 
agency within the mandates of the HazMat Act and the TEA-21.

Unfunded Mandates Reform Act of 1995

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

Executive Order 12988 (Civil Justice Reform)

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

Executive Order 13045 (Protection of Children)

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (April 23, 1997, 62 FR 19885), requires 
that agencies issuing ``economically significant'' rules that also have 
an environmental health or safety risk that an agency has reason to 
believe may disproportionately affect children must include an 
evaluation of the environmental health and safety effects of the 
regulation on children. Section 5 of Executive Order 13045 directs an 
agency to submit for a ``covered regulatory action'' an evaluation of 
its environmental health or safety effects on children. The agency has 
determined that this rule is not a ``covered regulatory action'' as 
defined under Executive Order 13045.
    This rule is not economically significant under Executive Order 
12866 because the FMCSA has determined that the changes in this 
rulemaking would not have an impact of $100 million or more in any one 
year. This rule also does not concern an environmental health risk or 
safety risk that would disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

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

Executive Order 13132 (Federalism)

    The safety performance of drivers operating commercial motor 
vehicles on

[[Page 42350]]

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

Executive Order 12372 (Intergovernmental Review)

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

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.), 
requires Federal agencies to obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. FMCSA has determined 
that the proposals in this SNPRM would impact and/or reference three 
currently-approved information collections (IC), as follows: (1) Driver 
Qualification Files, OMB Control No. 2126-0004 (formerly 2125-0065), 
approved at 941,856 burden hours through December 31, 2005; (2) 
Accident Recordkeeping Requirements, OMB Control No. 2126-0009 
(formerly 2125-0526), approved at 37,800 burden hours through September 
30, 2005; and (3) Controlled Substances and Alcohol Use and Testing, 
OMB Control No. 2126-0012 (formerly 2125-0543), approved at 573,490 
burden hours through August 31, 2004.
    The effect of this SNPRM on the burdens of the last two of these 
will be minimal, and will relate primarily to the length of time that 
records must be kept. The FMCSA, while acknowledging that there may be 
a minor impact associated with these collections, is not making 
estimates or discussing these minimal impacts at this time. Instead, 
the agency is focusing on the information collection regarding Driver 
Qualification Files, which will be impacted in a significant manner by 
this proposed rule.

[[Page 42351]]

    For purposes of this information collection, the agency is using 
6,458,430 as the estimate of the number of interstate and intrastate 
drivers that could be impacted by this proposal. Several existing FMCSA 
information collections employ this number (OMB Control No. 2126-0001--
Drivers Records of Duty Status; OMB Control No. 2126-0004--Driver 
Qualification Files; and OMB Control No. 2126-0006--Medical 
Qualification Files). The agency believes this high-end estimate 
captures all drivers who may be affected by the new information 
collection burdens being proposed. The agency continues to explore 
methods of more precisely determining the number of drivers that could 
be affected by FMCSA regulations.
    The truck driving industry is characterized, in general, by a high 
driver turnover rate. Previous information collections have estimated 
there are burden hours associated with 839,596 driver applications each 
year. That represents 13 percent of the 6,458,430 truck driver 
positions. Comments to the docket describe various driver-screening 
processes used by trucking companies to fill these driver positions. 
However, no data is currently available on how many applicants, or what 
percentage of applicants, are denied employment using current screening 
practices. FMCSA requests comments addressing what the current denial 
rates may be under existing driver screening processes.
    This proposed rule would provide employers with more information 
about the background and safety history of the applicants for 
employment as drivers. The agency estimates that an additional 10 
percent of the driver applicants with accidents over the last 3 years 
(14,300) and 25 percent of the drivers with positive alcohol or 
controlled substances tests for the 1 additional year (1,300) will be 
refused employment because of the heightened scrutiny of their 
background information. Rounded up to the nearest thousand, this 
represents 16,000 additional drivers that will be involved in the 
hiring process. Employing these figures, the agency estimates this 
proposed rule would require motor carriers to make requests for driver 
safety background information for a total of approximately 855,596 
(839,596 + 16,000) drivers.
    In addition, the proposed rule would require the prospective 
employer to seek information from all previous employers for whom the 
applicant has worked in the past 3 years. For purposes of this 
information collection, the agency is estimating that, on average, each 
applicant had 1.39 employers in the past 3 years. Therefore, the number 
of requests for background information would be 1,189,278 (1.39 
employers x 855,596 drivers).
    This proposed rule would also require driver applicants to be 
advised they can review, request correction, or rebut what a previous 
employer provided as that driver's employment history with that 
employer. The majority of these notifications would be made via a 
statement on the job application; therefore, we are not assigning an 
information collection burden for this notification. We request 
comments on whether there might be any significant burden in sectors of 
the industry using telephone job application processes.
    The currently-approved Driver Qualification Files information 
collection can be broken down into two sections: (1) Addressing the 
burdens of prospective employers and driver applicants during the 
hiring process, and (2) addressing the burdens related to carriers and 
drivers who are currently employed (e.g., annual review). This proposed 
rule would require revisions to the first section and leave the second 
section unchanged. In addition, it would create a third section--to 
address new burdens imposed by the proposed rule on the former 
employers of drivers. The resulting three elements of this information 
collection, as proposed, would be: (1) The hiring process (prospective 
employers and driver applicants), (2) the annual review (current 
employers and drivers), and (3) the responsibilities of previous 
employers.
    First Element of IC. The changes proposed by this SNPRM to the 
first item--the hiring process--address the specific types and 
timeframes of employment history to be requested (includes accident 
data). The proposed changes to specific types of safety performance 
history requested and timeframes of employment do not increase the 
information collection burden for the prospective employer 
investigations as part of the hiring process. However, prospective 
employers would be required to notify drivers of their right to review 
their safety performance history received from prospective employers 
and provide them with that information, if requested. The burden 
estimate for this element is 1,333 burden hours (16,000 drivers x 5 
minutes for prospective employers to provide the data to each of those 
drivers, divided by 60 minutes).
    Another increase regarding the various elements of the hiring 
process is to adjust the number of driver applicants estimate to 
include 16,000 additional drivers who would need to apply to fill the 
positions of the 16,000 it is estimated would not be hired due to 
enhanced safety performance history data being received. The increase 
in the various elements within the hiring section results in an 
additional burden of 4,799 hours for this first IC item (799 hours for 
the driver and motor carrier to perform 16,000 additional employment 
application-related activities + 4,000 hours for motor carriers to 
request driving and safety performance history data for 16,000 
additional applicants).
    Second Element of IC. The second element of the Driver 
Qualification Files--annual review--would be unaffected by this 
proposal.
    Third Element of IC. The third element of this information 
collection is created due to the changes made in this SNPRM. In the 
past, previous employers were not required to systematically provide 
employment history on their former employees. This proposal would 
require all employers to provide driver safety performance history data 
(including accident data) for the 3-year period preceding the date of 
the request. The annual burden for this requirement is estimated to be 
99,107 burden hours (855,596 drivers x an estimated 1.39 previous 
employers per driver x 5 minutes, divided by 60 minutes).
    This rule also proposes a new right for former drivers to protest 
or rebut employment data supplied by previous employers to prospective 
employers. Prospective employers would be required to provide the 
driver applicant with copies of the information it receives from the 
former employer. Former employers would have a duty and be required to: 
(1) Provide the past employee/driver the opportunity to rebut; (2) 
review a rebuttal, if submitted; (3) amend records, if persuaded by the 
rebuttal; (4) append the driver's rebuttal to the record, if not 
persuaded to revise their records by the rebuttal; and (5) keep a copy 
of the rebuttal with the file and send: (a) the revised record to the 
prospective employer, or a copy of the driver's rebuttal, and (b) the 
employment history with the appended rebuttal when requested in the 
future.
    The agency assumes that 16,000 drivers would protest the employment 
history provided by former employers. The FMCSA estimates it would take 
approximately 2 hours for the driver to create and submit a protest. It 
is further estimated that it would take the previous employer 2 hours 
to address and respond to each protest. Therefore, the burden estimate 
for this activity is 64,000 hours ((16,000 x 2 hours per protesting 
driver) + (16,000 x 2 hours per previous employer)).

[[Page 42352]]

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

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

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

National Environmental Policy Act

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

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

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

Regulatory Evaluation: Summary of Benefits and Costs

I. Background and Summary

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

[[Page 42353]]

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

                  Table 3.--Summary of Costs, 2003-2012
                        [In millions of dollars]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
First Year Costs.................................................    $10
Total Discounted Costs, 10-Year Period...........................     76
------------------------------------------------------------------------

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

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

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

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

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

II. Costs

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

[[Page 42354]]

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

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

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

[[Page 42355]]

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

[[Page 42356]]

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

III. Benefits

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

[[Page 42357]]

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

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

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

IV. Net Benefits

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

[[Page 42358]]



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

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

List of Subjects

49 CFR Part 390

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

49 CFR Part 391

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

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

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

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

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

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


Sec.  390.15  Assistance in investigations and special studies.

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

PART 391--QUALIFICATIONS OF DRIVERS [AMENDED]

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

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

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


Sec.  391.21  Application for employment.

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


Sec.  391.23  Investigations and inquiries.

* * * * *

[[Page 42359]]

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

[[Page 42360]]

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


Sec.  391.51  General requirements for driver qualification files.

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


Sec.  391.53  Driver Employment History File.

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

    Issued on: July 11, 2003.
Annette M. Sandberg,
Acting Administrator.
[FR Doc. 03-18137 Filed 7-16-03; 8:45 am]
BILLING CODE 4910-EX-P