[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Pages 10548-10556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6130]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Parts 382, 383, 390, and 391
[FHWA Docket No. MC-96-6]
RIN 2125-AD66
Safety Performance History of New Drivers
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: The FHWA proposes to amend its regulations to specify minimum
safety information that new and prospective employers must seek from
former employers during the investigation of a driver's employment
record. This notice of proposed rulemaking (NPRM) also proposes to
increase the period of time for which carriers must record accident
information in the accident register from one to three years. This
proposal is mandated by section 114 of the Hazardous Materials
Transportation Authorization Act of 1994 (HazMat Act). The proposed
rules would ensure that employers would be cognizant of critical
information concerning a driver's prior safety performance, while also
affording the driver the opportunity to review and comment on that
information.
DATES: Comments must be received on or before May 13, 1996.
ADDRESSES: All signed, written comments should refer to the docket
number that appears at the beginning of this document and must be
submitted to the Docket Clerk, Room 4232, Office of the Chief Counsel,
Federal Highway Administration, 400 Seventh Street, SW., Washington, DC
20590. All comments received will be available for examination at the
above address from 8:30 a.m. to 3:30 p.m., e.t., Monday through Friday,
except Federal holidays. Those desiring notification of receipt of
comments must include a self-addressed, stamped postcard or envelope.
FOR FURTHER INFORMATION CONTACT: Ms. Valerie Height, Office of Motor
Carrier Research and Standards, (202) 366-
[[Page 10549]]
1790, or Ms. Grace Reidy, Office of the Chief Counsel, (202) 366-0834,
Federal Highway Administration, Department of Transportation, 400
Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45
a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal
holidays.
SUPPLEMENTARY INFORMATION:
Background
The FHWA is initiating this rulemaking in response to section 114
of the HazMat Act, Public Law 103-311, August 26, 1994, 108 Stat. 1677.
Section 114 directs the FHWA to amend its regulations to require a
motor carrier to request from previous employers specific safety
information when investigating a driver's employment record pursuant to
49 CFR 391.23. The former employers would be required to respond to
such requests within 30 days. The driver would be afforded an
opportunity to review and comment on any information obtained from a
former employer.
Currently, Sec. 391.23(a)(2) of title 49 of the Code of Federal
Regulations (CFR) requires motor carriers to make ``an investigation of
the driver's employment record during the preceding three years,''
without specifying the type of information to be sought. The current
regulation does not require a former employer to respond to the new and
prospective employer's inquiry. For this reason, former employers may
refuse to respond to such requests, and new and prospective employers
are, therefore, unable to obtain important safety information about the
driver.
The FHWA proposes to amend 49 CFR parts 382, 383, 390, and 391 to
incorporate the changes mandated by the HazMat Act. Section 391.23
would be amended to require a motor carrier to obtain, for the
preceding three-year period, information about a driver's accident
record, hours-of- service violations resulting in an out-of-service
order, violations of the prohibitions in subpart B of part 382, and
failure to undertake or complete a rehabilitation program recommended
by a substance abuse professional (SAP) under Sec. 382.605. Former
employers would be required to respond within 30 days to such requests.
Drivers would be afforded an opportunity to review and comment on this
information. Conforming changes would be made to Secs. 383.35(f) and
391.21(d) to reflect the driver applicant's right to review and comment
on information obtained from previous employers. To facilitate
information exchange, Sec. 390.15 would be amended to expand the time
period for which carriers must record and retain accident information
in an accident register from one to three years and require that the
information in the accident register be provided to a subsequent
employer in response to a request made during an employment
investigation.
Part 382 would also be amended to incorporate the drug and alcohol
provisions of section 114 of the HazMat Act. Consistent with
Sec. 391.23(c), Sec. 382.413 would be amended to require employers to
investigate whether a driver failed to undertake or complete
rehabilitation or violated the prohibitions in subpart B of part 382.
Employers subject to part 382 would also be required to obtain
information concerning whether a driver violated the drug and alcohol
rules of other DOT agencies as well as the prohibitions in subpart B of
part 382. Other conforming changes are proposed for part 382 that do
not affect Sec. 391.23(c) and are discussed in greater detail under the
section entitled ``Conforming Changes to Part 382.''
Applicability
Motor carriers subject to part 391 would be required to investigate
the specific safety information proposed for Sec. 391.23(c). They would
be required to obtain information relative to a driver's accident
experience and hours-of-service violations from all of the driver's
motor carrier employers during the preceding three years. These motor
carriers would also be required to request certain drug and alcohol
information from employers that employed the driver to operate a
commercial motor vehicle (CMV) requiring a commercial driver's license
(CDL) under part 383 concerning events that occurred during the
preceding three years. The source of the Sec. 391.23(c) drug and
alcohol information has been limited to motor carriers because, under
this part, the FHWA only has authority to require a response from these
employers. New and prospective employers would only be required to
investigate the drug and alcohol information for drivers who operated a
CMV requiring a CDL within the preceding three years because only these
drivers are subject to the part 382 drug and alcohol testing program.
Under Sec. 391.23, motor carriers may request general employment
information from any employer who hired the driver within the preceding
three years. The FHWA proposes to require that new and prospective
employers request the safety information required under section 114 of
the HazMat Act only of previous employers that are motor carriers.
Although section 114 states that the requests for the safety
information must be made to ``former employers,'' only motor carriers
and persons who operate CMVs must comply with the requirements of 49
CFR Part 391. Thus, the proposed inquiry requirements of 49 CFR 391.23
would only apply to former employers that are (or were) motor carriers.
Section 114(a)(2) of the HazMat Act requires former employers to
respond within 30 days to requests for safety information on a driver.
Section 391.23(c) requires the motor carrier to make this investigation
within 30 days of hiring the driver. To avoid prolonging the employment
investigation process to 60 days (up to 30 days for the motor carrier
to initiate the investigation plus up to 30 days for former employers
to respond), the FHWA proposes to clarify Sec. 391.23(c) to require a
motor carrier to commence the investigation as soon as possible, but
not later than 30 days after hiring the driver. Section 391.23(c)(2) is
added to require former employers to provide the information in
Sec. 391.23(c) within 30 days of receiving the request. The former
employer's 30-day response period commences from the postmarked date on
a mailed request, the date of transmission on a facsimile request, or
the date that the former employer was contacted for a personal or
telephone interview. The 30-day period refers to calendar days and
includes weekends and holidays. The 30-day response period concludes as
of the date of postmark on a mailed response, date of transmission on a
facsimile response, or the date that the former employer provides the
information in a personal or telephone interview.
Under these proposed regulations, the driver would be given a
reasonable opportunity to review and comment on any information
obtained during the overall employment investigation. The motor carrier
would be required to notify the driver applicant of such right when
applying for employment.
The items of information proposed in Sec. 391.23(c) are minimum
safety indicators that would be investigated under Sec. 391.23, in
addition to general employment information. The specified information
should not necessarily be regarded as an exclusive list of the
information that would be obtained during the driver's employment
record investigation. Employers would be allowed to continue to
investigate, generally, an applicant's employment record. Employers who
are subject to part 382 would also be required to obtain the
information required by that part (See the section entitled
[[Page 10550]]
``Conforming Amendments to Part 382'').
Specific Minimum Safety Information To Be Sought When Investigating
the Driver's Employment Record Under Sec. 391.23
Under Sec. 391.23, motor carriers would be required to request the
following safety information from a motor carrier employer who, within
the preceding three years, hired the driver to operate a CMV:
1. Accidents (as defined in Sec. 390.5) in which the driver was
involved during the past three years; and
2. Hours-of-service violations that resulted in an out-of-service
order being issued to the driver during the past three years.
Motor carriers would also be required to request information
regarding the following safety violations from an employer who, within
the preceding three years, hired the driver to operate a CMV requiring
a CDL under part 383:
3. Failure of the driver to undertake or complete a rehabilitation
program prescribed by a substance abuse professional pursuant to
Sec. 382.605 during the past three years; and
4. Violations of the prohibitions in subpart B of part 382 during
the past three years.
A discussion of each of the minimum safety indicators follows.
Accidents
The FHWA proposes to require new and prospective employers to
investigate accidents occurring within the preceding three years
involving a driver applicant. An accident is defined in Sec. 390.5 as
follows:
[A]n occurrence involving a commercial motor vehicle operating on a
public road in interstate or intrastate commerce which results in--
(i) A fatality;
(ii) Bodily injury to a person who, as a result of the injury,
immediately receives medical treatment away from the scene of the
accident; or
(iii) One or more motor vehicles incurring disabling damage as a
result of the accident, requiring the motor vehicle to be transported
away from the scene by a tow truck or other motor vehicle.
Section 390.5 provides that the definition of an accident does not
include the following:
(i) An occurrence involving only boarding and alighting from a
stationary motor vehicle; or
(ii) An occurrence involving only the loading or unloading of
cargo; or
(iii) An occurrence in the course of the operation of a passenger
car or a multipurpose passenger vehicle (as defined in 49 CFR 571.3 of
this title) by a motor carrier and is not transporting passengers for
hire or hazardous materials of a type and quantity that require the
motor vehicle to be marked or placarded in accordance with 49 CFR
177.823 of this title.
``Disabling damage'' is defined in Sec. 390.5 as ``damage which
precludes departure of a motor vehicle from the scene of the accident
in its usual manner in daylight after simple repairs.'' This includes
``damage to motor vehicles that could have been driven but would have
been further damaged if so driven.'' However, Sec. 390.5 provides that
disabling damage does not include--
(i) Damage which can be remedied temporarily at the scene of the
accident without special tools or parts.
(ii) Tire disablement without other damage even if no spare tire is
available.
(iii) Headlamp or taillight damage.
(iv) Damage to turn signals, horn, or windshield wipers which makes
them inoperative.
The FHWA proposes that only accidents, as defined in Sec. 390.5, be
investigated instead of ``any motor vehicle accidents'' as stated in
the HazMat Act for the following reasons. First, the FMCSR's definition
of ``accident'' contained in 49 CFR 390.5 is not as all inclusive as
``any motor vehicle accident''; and the FMCSR's definitions apply to
part 391. Section 390.15 already requires motor carriers to retain a
record of ``accidents'' as defined in Sec. 390.5. Broadening the term
``accident'' to include occurrences beyond those described in
Sec. 390.5 would make its definition inconsistent with the National
Governors' Association (NGA) definition and would, therefore, skew the
data contained in the SAFETYNET System. Such action could also
significantly increase the paperwork burden placed upon the motor
carrier industry. The FHWA published a final rule on February 2, 1993,
in the Federal Register (58 FR 6729) which incorporated into the FMCSRs
the accident definition recommended in the NGA study entitled, ``Truck
and Bus Accidents: Getting the Facts'' (1990). In that final rule, the
FHWA eliminated the requirements that motor carriers submit accident
reports to the FHWA and notify the agency telephonically of fatal
accidents, adopted a new accident reporting system (SAFETYNET Accident
Module) which collects information from police accident reports and
incorporates the NGA accident reporting data elements, and required
motor carriers to maintain a register of accidents for a period of one
year after the accident occurs. Each of the actions put into effect by
the February 2, 1993, final rule is based upon the uniform definition
of the term ``accident.'' Therefore, the FHWA proposes to restrict the
accidents investigated under Sec. 391.23(c)(1)(i) to those accidents
defined in Sec. 390.5 so that (1) the relationship between the
definition of an accident and the actions accomplished by the February
2, 1993, final rule is maintained and (2) motor carrier employers may
comply with the HazMat Act requirements without undue burden or
confusion.
To facilitate implementation of the accident information
requirements, the FHWA also proposes to broaden the use of the accident
register. Currently, the accident register may be used to assist
investigations and special studies conducted by representatives or
special agents of the FHWA. The FHWA proposes to encourage motor
carriers also to use it when responding to a new or prospective
employer's request for information about a driver applicant's accident
record.
The FHWA proposes to extend the period of time that the register
must be retained from one to three years. Extending the retention
period to three years would enable a motor carrier employing a driver
for three or more years to provide an accident history to a subsequent
employer for the entire period required by the proposed rule.
This proposal to require inquiries of former employers would not
set aside the motor carrier's responsibility to investigate a driver's
driving record under Sec. 391.23(a)(1). Motor carriers are still
required to inquire about a driver's driving record from the
appropriate State agency in accordance with Sec. 391.23(a)(1). Accident
information obtained from previous employers would supplement any
information from State agencies and, therefore, provide a more
comprehensive safety profile of the driver.
Hours-of-Service Violations Resulting in an Out-of-Service Order
The FHWA considers a driver's hours-of-service violations to be a
major safety indicator. The FHWA would require this information to be
included in the employment investigation under the authority in section
114(b)(4) of the HazMat Act that authorizes ``any other matters
determined by the Secretary of Transportation to be appropriate and
useful for determining the driver's safety performance,'' to be a part
of the investigation. Drivers who violate the hours-of-service rules
often have insufficient rest to safely operate a CMV. The fatigue and
loss of alertness
[[Page 10551]]
resulting from insufficient rest may place them and other highway users
at higher risk. This information, therefore, will help new and
prospective employers identify potentially unsafe drivers.
Failure to Undertake or Complete Drug or Alcohol Rehabilitation
The FHWA proposes to amend Sec. 391.23 so that motor carriers would
be required to investigate whether, within the preceding three years, a
driver failed to undertake or complete a rehabilitation program
pursuant to 49 U.S.C. 31306 after having been found to have used drugs
or alcohol in violation of law or Federal regulation. (Section
114(b)(2) of the HazMat Act incorrectly references 49 U.S.C. 31302 in
addressing this issue; the drafters of the Act clearly intended to
reference the rehabilitation program under section 31306. This
intention is evidenced by earlier versions of Senate Bill 1640 that
relate the rehabilitation program to section 12020 of the Commercial
Motor Vehicle Safety Act of 1986.)
Under 49 U.S.C. 31306, the Secretary of Transportation is directed
to ``prescribe regulations establishing requirements for rehabilitation
programs that provide for the identification and opportunity for
treatment of operators of commercial motor vehicles who are found to
have used alcohol or a controlled substance in violation of law or a
Government regulation.'' The regulations implementing the
rehabilitation requirements of section 31306 appear in 49 CFR 382.605
and apply generally to drivers of CMVs with a gross vehicle weight
rating (GVWR) in excess of 26,000 lbs., vehicles transporting hazardous
materials which are required to be placarded, or vehicles designed to
transport more than 15 passengers, including the driver. Part 382
contains alcohol and drug rules pertaining to motor carriers and
provides procedures and regulations for referring drivers who violate
its prohibitions to a SAP, to determine what, if any, rehabilitation
programs are needed to resolve problems associated with alcohol misuse
and substance abuse. Section 382.501(b) also prohibits an employer from
using a driver who was found to have illegally used drugs or alcohol in
a safety-sensitive function until that driver has received the
recommended treatment.
The amendments proposed under Sec. 391.23(c)(1)(iii) and (iv) would
better enable a motor carrier that operates CMVs with a GVWR between
10,000 and 26,000 lbs. in interstate commerce to comply with
Sec. 382.501(b). Although such an employer is not subject to the entire
part 382, he or she may not use a driver in safety-sensitive functions,
including driving a CMV, if that driver has been found to have
illegally used drugs or alcohol until that driver has received the
recommended treatment. Section 391.23(c)(1)(iv) would require a motor
carrier to investigate whether a driver had illegally used drugs or
alcohol within the previous three years. Section 391.23(c)(1)(iii)
would require a motor carrier to determine whether a driver had failed
to undertake or complete recommended treatment after having been found
to have illegally used drugs or alcohol. This information would assist
the motor carrier that is not subject to part 382 in determining
whether a driver was qualified to operate a CMV.
Determining whether a driver completed rehabilitation may not
always be a straightforward process. Section 382.605(b) requires
employers to refer CDL holders violating the prohibitions of part 382
to a SAP. The SAP must determine what, if any, assistance the driver
needs in resolving problems associated with controlled substance use
and alcohol misuse. If a SAP refers a driver to a rehabilitation
program, the employer may not use that driver in a safety-sensitive
function until assured that the driver has complied with the treatment
recommended by the SAP. The employer is required to maintain records
pertaining to a SAP's determination concerning a driver's need for
assistance and records concerning a driver's compliance with the SAP's
recommendations. Even if a SAP does not refer a driver to a
rehabilitation program, the employer is still required to maintain a
record of the SAP's evaluation.
However, if a driver quits working for the employer before seeing a
SAP or undertaking or completing rehabilitation, that employer is not
required to ensure that the driver completes the SAP reference and
evaluation process. An employer is only prohibited from using the
driver in a safety-sensitive function until the driver complies with a
SAP's recommendations. If the driver terminates employment before the
SAP evaluation or rehabilitation, the employer may not know if
rehabilitation was undertaken, completed or even recommended. A new or
prospective employer would also have no evidence that the driver
complied with the SAP's recommendations.
Therefore, to comply with this requirement, a new employer would
have to investigate whether (1) the driver was ever referred to a SAP,
(2) the SAP referred the driver to a rehabilitation program, and (3) a
SAP's evaluation certified the driver was qualified to return to duty.
Violations of the Prohibitions in Subpart B of Part 382
Section 114(b)(3) of the HazMat Act mandates the investigation of
``any use by the driver, during the preceding 3 years, in violation of
law or Federal regulation, of alcohol or a controlled substance
subsequent to completing such a rehabilitation program.'' This mandate
requires that a motor carrier determine whether a driver continued to
abuse alcohol and/or a controlled substance subsequent to treatment for
such abuse. Section 114(b)(4) authorizes the Secretary to include in
the required information other matters that are appropriate and useful
to determine a driver's safety record. In conjunction with section
114(b)(3), the FHWA proposes to execute the authority granted in
section 114(b)(4) to clarify and enhance the substance abuse safety
information requirement.
Under Sec. 391.23, the FHWA proposes to require that only
violations of the prohibitions listed in 49 CFR Part 382, subpart B, be
required as reportable violations of ``law or Federal regulation, of
alcohol or a controlled substance,'' pursuant to section 114(b)(3). It
is impractical for the FHWA to enforce a rule requiring a motor carrier
to investigate all illegal uses of drugs and alcohol. The statutory
language, ``in violation of law or Federal regulation,'' is broad and
includes drug and alcohol use in violation of State, Federal, or local
law or Federal regulation. A previous employer may have knowledge of
whether a driver used drugs or alcohol ``in violation of law or Federal
regulation,'' but, under this part, the FHWA could only require
employers subject to its regulations to provide it. Most employers may
not willingly respond to such requests for fear of a lawsuit by the
driver.
It is more feasible to clarify the term, ``in violation of law or
Federal regulation,'' to mean violations of the prohibitions in subpart
B of part 382. Subpart B contains drug and alcohol regulations that
pertain to CMV operators. Transmission of the required information will
be aided by the fact that employers subject to part 383 already
maintain a record of a driver's violations under part 382.
The FHWA also proposes to utilize the section 114(b)(4) authority
to require that all part 382, subpart B, violations occurring within
the previous three years be transmitted to the inquiring motor carrier
from the previous
[[Page 10552]]
employer. This requirement expands the provision that required
violations occurring subsequent to rehabilitation be transmitted to the
motor carrier requesting the information. The FHWA believes that a
three-year period, as specified in section 114(b) for other required
information, is in accordance with the intent of the HazMat Act to
grant new and prospective employers sufficient knowledge about safety
histories of drivers.
Extending the reporting period to three years is also efficient
because it may be difficult to determine when rehabilitation was
completed. Many times when a driver is found to have illegally used
drugs or alcohol, an employer provides the driver a list of SAPs,
terminates the driver's employment, and makes a record of the referral.
In this case, the employer would not know whether rehabilitation was
recommended or completed, nor is he or she required to know. Thus, it
could be very difficult, if not impossible, for a new or prospective
employer to ascertain when rehabilitation was recommended or completed.
Removing the ``after rehabilitation'' limitation would satisfy the
intent of the HazMat Act within the authority granted FHWA and enable
motor carriers to more easily implement the requirement. A new or
prospective employer would only be required to know whether, during the
past three years, the driver operated a CMV requiring a CDL under part
383, to determine whether this information must be obtained. If so, the
motor carrier would be required to seek the information only from
employers that hired the driver to operate a CMV requiring a CDL under
part 383 during the past three years.
The Driver's Written Consent for Drug or Alcohol Information
Part 382 requires that drug and alcohol information pertaining to a
driver be released pursuant to the terms of the driver's written
consent. For this reason, the FHWA proposes to add Sec. 391.23(e) to
similarly require employers to request the drug and alcohol information
pursuant to the driver's written consent. Thus, employers could avoid
processing delays caused when the request is not accompanied by the
driver's written authorization.
Driver's Right to Review and Comment on Information
The motor carrier must allow the driver a reasonable opportunity to
review and comment on any safety information obtained. This proposal
does not define ``a reasonable opportunity'' but proposes to leave this
to the motor carrier's discretion. We invite public comment on whether
it is necessary for the FHWA to define what constitutes ``reasonable
opportunity'' and include a specific time frame for compliance.
The driver's right to review and comment on the information is
clearly established by section 114(a)(3) of the HazMat Act. The FHWA
believes that the motor carrier should inform the driver of this right
when the application for employment is completed. The driver's
comments, if any, could be made orally or in writing. However, the
motor carrier is not responsible for correcting any information
obtained. The driver should contact the former employer to settle
disputes over allegedly incorrect information.
Conforming Amendments to Part 382
Because much of the information mandated by section 114 of the
HazMat Act is similar to information currently shared by employers
under part 382, conforming changes are being proposed for Secs. 382.405
and 382.413 to ensure consistency with the HazMat Act. Accordingly,
Sec. 382.413 would be amended to require an employer to seek
information from former employers regarding (1) a driver's failure,
during the preceding three years, to undertake or complete a
rehabilitation program after being found to have violated alcohol or
controlled substances laws or regulations, and (2) any use by the
driver, during the preceding three years, of alcohol or a controlled
substance in violation of 49 CFR Part 382, subpart B or the rules of
other DOT agencies. The congressional mandate in the HazMat Act
requires that this information be released by former employers within
30 days, and that the driver to whom the information applies would have
a reasonable opportunity to review and comment on the information.
Section 382.413, as currently written, requires much of the same
information to be shared between new and prospective employers and
former employers as proposed in this action. Section 382.413 requires
the sharing of information on certain violations of part 382: positive
drug test results, alcohol results of 0.04 alcohol concentration or
greater, and refusals to be tested. Section 114(b)(3) of the HazMat Act
is both broader and narrower than part 382's requirements since section
114(b)(3) mandates the sharing of information on all prohibited uses of
drugs and alcohol by drivers, but limits the inquiry to those
violations that occurred after completing rehabilitation. Section
382.413(a) would be revised to include all violations of subpart B by a
driver, not just testing violations. In addition, based on the
authority granted by section 114(b)(4) of the HazMat Act, which
empowers the Secretary to include other matters ``appropriate and
useful for determining a driver's safety performance'', such violations
would continue to include, but not be limited to, those occurring after
rehabilitation. The FHWA believes that all violations of the
prohibitions in part 382 are important indicators of the driver's
safety performance.
The information required by section 114(b)(2) of the HazMat Act
relative to a driver's failure to complete rehabilitation (already
required implicitly by Sec. 382.413(g)) which must be obtained before a
violator may be permitted to return to driving would be listed as a
separate item in Sec. 382.413(a)(1)(ii).
It should be noted that the records required to be obtained under
Sec. 382.413 would be limited only to those records generated under
part 382 and the alcohol and drug testing rules of other DOT agencies
after January 1, 1995. Interstate motor carriers must maintain their
records, generated under part 391, for the periods of time specified in
Sec. 382.401. Because of the significant difference between the testing
programs in parts 382 and 391, the FHWA would not require new or
prospective employers to obtain the information maintained by former
employers prior to January 1, 1995, for large employers, and January 1,
1996, for small employers. See Sec. 382.413(i).
Other amendments are necessary to conform 49 CFR part 382 to the
HazMat Act. First, Sec. 382.413(a)(1)(i) would extend the period of
shared information from two to three years. Second, Sec. 382.413(h)
would afford drivers a reasonable opportunity to review and comment on
any information obtained by new or prospective employers under
Sec. 382.413(a)(1). Third, Sec. 382.405(f) would allow former employers
30 days to respond to requests for information. The amendment to
Sec. 382.405(f) recognizes that a great majority of requests for
testing information from former employers will occur pursuant to
Sec. 382.413. There is no reason for two standards for response
periods. The 30-day response period provided in the HazMat Act for
information requests to former employers would be made a general
standard in Sec. 382.405(f), thus applying to all requests for drug and
alcohol testing information from employers. Of course, employers may
only disclose a driver's drug and alcohol
[[Page 10553]]
records under part 382 pursuant to the driver's written consent.
The current 14-day limit for new employers to obtain the
information after first using a driver, when not feasible to do so
before using the driver, would be extended to 30 days. Employers would
be required to request the information from former employers as soon as
the employer expects to use or hire the driver to drive or perform
other safety-sensitive functions. The 30-day period should be
sufficient to accommodate information requests and responses made by
mail. Although there is no requirement that the inquiries and responses
be processed by mail, the prudent employer may wish to employ the
faster and confidential communication methods authorized in
Sec. 382.413(e) to meet the 30-day time limit requirement.
Part 382 would continue to require, if feasible, the employer to
obtain the information prior to the first performance of safety-
sensitive functions by a driver. If obtaining the information prior to
the driver's first performance of safety-sensitive functions for the
employer is not feasible, the information would have to be obtained as
soon as possible, but no more than 30 days after first using the driver
to perform safety-sensitive functions.
Beyond incorporating the HazMat Act requirements into part 382, the
source of the violations enumerated in Sec. 382.413 would also be
amended to include all DOT agencies'' alcohol and controlled substances
regulations. The FHWA believes that some drivers may apply for
positions that require driving CMVs after they have violated the
alcohol or drug use prohibitions of another DOT agency. The FHWA has,
therefore, included a requirement that employers request information
from all past employers for which a driver worked in a position covered
by the alcohol and/or drug prohibitions and testing requirements of
another DOT agency. This would ensure that persons applying for
positions that require operating a CMV would have all of their relevant
records of violations investigated. It would also ensure that persons
who test positive are evaluated by a SAP, and, before returning to
perform safety-sensitive functions, complete a recommended
rehabilitation program.
Section 382.413(a)(2) was incorporated into the FMCSRs by a final
rule published in the Federal Register on March 8, 1996, (61 FR 9546).
That action allows previous employers to include information obtained
from other previous employers when responding to requests for a
driver's drug and alcohol information under Sec. 382.413(a)(1), as long
as that information falls within the previous two- year period. Because
the March 8, 1996, final rule was a technical amendment, the FHWA was
unable to mandate the requirements now proposed in Sec. 382.413(a)(2).
Such an action would have made a substantive change to the regulations
requiring public notice before becoming a final rule. This notice
proposes to mandate the requirements proposed in Sec. 382.413(a)(2) in
accordance with the intent of section 114(b) of the HazMat Act by
changing the word ``may'' to ``shall.''
New and prospective employers should ensure that the driver's
written consent authorizes former employers to disclose all
prohibitions listed under Sec. 382.413(a)(1), that occurred within the
previous three years, of which the former employer has knowledge.
Otherwise, a former employer may be prohibited by Sec. 382.405(f) from
passing along to the inquiring employer any Sec. 382.413(a)(1)
information that was obtained from another previous employer. Section
382.405(f) states that records under part 382 may only be released to a
subsequent employer upon receipt of written authorization from a
driver. Disclosure of the part 382 records by the subsequent employer
is also permitted only as expressly authorized by the terms of the
driver's signed authorization. If the driver's authorization had
prohibited the subsequent employer from disclosing the information,
sharing that information with the inquiring employer would be in
violation of Sec. 382.405(f).
Rulemaking Analyses and Notices
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket at the above address. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practicable. In addition to late comments, the
FHWA will also continue to file in the docket relevant information that
becomes available after the comment closing date. Interested persons
should continue to examine the docket for new material. Nevertheless,
the FHWA may issue a final rule on this matter at any time after the
close of the comment period.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this document does not constitute a
significant regulatory action for the purposes of Executive Order 12866
or a significant regulation under the regulatory policies and
procedures of the DOT. These proposed changes to the Federal Motor
Carrier Safety Regulations would not cause an annual impact on the
economy of over $1 million, and they would not adversely affect a
sector of the economy in a material way. These changes would not create
an inconsistency or otherwise interfere with another agency's actions,
nor do they raise novel legal or policy issues. These changes merely
implement a recently enacted legislative mandate directing the FHWA to
amend its regulations to require a motor carrier to request from
previous employers specific safety information when investigating a
driver's employment record pursuant to 49 CFR 391.23. Motor carriers
are already required by section 391.23(a)(2) to make ``an investigation
of the driver's employment record during the preceding three years.''
These proposed changes merely specify the types of information to be
sought, increase the period of time for which carriers must record
accident information from one to three years, direct former employers
to respond to information requests within thirty days, and require that
drivers be afforded an opportunity to review and comment on any
information obtained from a former employer. Thus, in light of this
analysis, especially the finding that the economic impact of this
action is likely to be minimal, the FHWA has determined that a full
regulatory evaluation is not required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small
entities. It is anticipated that the economic impact of this rulemaking
on all employers, regardless of size, will be minimal. This NPRM
proposes to set forth minimum safety information that new and
prospective employers would request when investigating a driver
applicant's employment record. Employers are already required to
maintain this safety information. These amendments would clarify
existing requirements and would impose only a minor additional
requirement on employers to record and retain accident information for
three years instead of one. Accordingly, the
[[Page 10554]]
FHWA certifies that under the criteria of the Regulatory Flexibility
Act this action will not have a significant economic impact on a
substantial number of small entities.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that these proposed changes would not preempt any State law or State
regulation, and no additional costs or burdens would be imposed on the
States. In addition, these changes would have no effect on the States'
ability to discharge traditional State governmental functions. Motor
carrier safety is a matter of national concern to which Congress has
responded by enacting section 114 of the HazMat Act which directs the
FHWA to amend its regulations to specify the safety information a motor
carrier must request from a driver's former employers. Thus, in light
of the importance to the nation as a whole of ensuring that motor
carrier vehicles are operated by safety conscious drivers, this Federal
action regarding the safety performance history of drivers is justified
and does not have sufficient federalism implications to warrant the
preparation of a federalism assessment.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities apply to this program.
Paperwork Reduction Act
This action would impact existing collection of information
requirements for purposes of the Paperwork Reduction Act of 1995 (44
U.S.C. 3501--3520). It would affect the period of retention for an
existing accident record keeping requirement, extend the period of
inquiry relating to a driver's alcohol and controlled substance
history, and require additional information relating to a driver's
employment investigation under Sec. 391.23 to be retained in the
driver's qualification file. Because of these changes, existing Office
of Management and Budget (OMB) approvals are being revised.
Motor carriers are required under 49 CFR 390.15 to maintain and
retain an accident register for a period of one year. That requirement
was approved by the OMB under control number 2125-0526. This NPRM
proposes to extend the period for which the accident register must be
retained from one to three years under the previous OMB authority.
Extending the retention period would enable motor carriers to satisfy,
with an existing resource, the accident reporting requirements of
section 114(b) of the HazMat Act for the full three-year period. The
information collection requirements imposed by this proposed amendment
have been submitted to the OMB under OMB Control Number 2125-0526 for
approval under the Paperwork Reduction Act.
Section 391.23(c) proposes to require motor carriers to request
from previous employers information about a driver's accidents, illegal
drug and alcohol use, failure to complete recommended treatment for
such abuse, and certain hours of service violations. Currently, motor
carriers are only required to request general employment information
from the previous employer. The amendments proposed in Sec. 391.23(c)
are mandated by Congress and would ensure that employers are cognizant
of critical information concerning a driver's safety performance. The
information collection requirements imposed by these proposed
amendments have been submitted to the OMB under OMB Control Number
2125-0065 for approval under the Paperwork Reduction Act.
Similarly, employers of both interstate and intrastate drivers that
must hold commercial drivers licenses are required, under 49 CFR
382.413, to seek testing information from previous employers for only
the preceding two years. OMB approval for that requirement was granted
under control number 2125-0543. This NPRM would require all motor
carriers to request three years of drug and alcohol testing information
on new drivers who operate in interstate commerce. Therefore, employers
subject to 49 CFR 382.413 would be required to seek drug and alcohol
information about a driver for the previous three years instead of two.
Additionally, not just testing information would be requested from
former employers. Employers would be required to obtain information
about violations of the prohibitions of subpart B of part 382 or the
drug and alcohol rules of another DOT agency or a driver's failure to
undertake or complete recommended treatment. These conforming
amendments are mandated by section 114 of the HazMat Act. The
information collection requirements imposed by these proposed
amendments have been submitted to the OMB under OMB Control Number
2125-0543 for approval under the Paperwork Reduction Act. The FHWA
requests public comment on these new and revised paperwork collection
requirements.
National Environmental Policy Act
This agency has analyzed this proposed action for the purpose of
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.)
and has determined that it would not have any effect on the quality of
the environment.
Regulation Identification Number
A regulatory identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 49 CFR 382, 383, 390, and 391
Alcohol concentration, Alcohol testing, Commercial motor vehicles,
Controlled substances testing, Drivers, Driver qualifications, Highway
safety, Highways and roads, Hours of Service, Intermodal
transportation, Motor carriers, Motor vehicle safety, Reporting and
recordkeeping requirements, Safety, Transportation.
Issued on: March 6, 1996.
Rodney E. Slater,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA proposes to amend title
49, CFR, subtitle B, chapter III, parts 382, 383, 390, and 391 as set
forth below:
PART 382--[AMENDED]
1. The authority citation for 49 CFR part 382 is revised to read as
follows:
Authority: 49 U.S.C. 31133, 31136, 31301 et seq., 31502; sec.
114, Pub. L. 103-311, 108 Stat. 1673, 1677; and 49 CFR 1.48.
2. In Sec. 382.405, paragraph (f) is revised to read as follows:
Sec. 382.405 Access to facilities and records.
* * * * *
(f) Records shall be made available, within 30 days, to a
subsequent employer upon receipt of written authorization from a
driver. Disclosure by the subsequent employer is permitted only as
expressly authorized by the terms of the driver's signed authorization.
* * * * *
3. Section 382.413 is revised to read as follows:
[[Page 10555]]
Sec. 382.413 Inquiries for alcohol and controlled substances
information from previous employers.
(a) (1) An employer, including a prospective employer, shall,
pursuant to the driver's written authorization, inquire about the
following information relating to the driver from the driver's previous
employers:
(i) Violations of the prohibitions contained in subpart B of this
part, or the alcohol or controlled substances rules of other DOT
agencies, during the past three years; and
(ii) Failure to undertake or complete a rehabilitation program
prescribed by a substance abuse professional pursuant to Sec. 382.605,
or the alcohol or controlled substances rules of another DOT agency,
during the past three years.
(2) The information obtained from a previous employer must contain
any alcohol and drug information the previous employer obtained from
other previous employers under paragraph (a)(1) of this section.
(b) If feasible, the information in paragraph (a) of this section
must be obtained and reviewed by the employer prior to the first time
the driver performs safety-sensitive functions for the employer. If not
feasible, the information must be obtained and reviewed as soon as
possible, but no later than 30 calendar days after the first time a
driver performs safety-sensitive functions for the employer. An
employer shall not permit a driver to perform safety-sensitive
functions after 30 days without having made a good faith effort to
obtain the information as soon as possible. If a driver hired or used
by the employer ceases performing safety-sensitive functions for the
employer before expiration of the 30-day period or before the employer
has obtained the information in paragraph (a) of this section, the
employer must still make a good faith effort to obtain the information.
(c) An employer shall maintain a written, confidential record of
the information obtained under paragraph (a) or (f) of this section.
If, after making a good faith effort, an employer is unable to obtain
the information from a previous employer, a record shall be made of the
efforts to obtain the information and retained in the driver's
qualification file.
(d) The new/prospective employer must provide to each of the
driver's previous employers the driver's specific, written
authorization for release of the information in paragraph (a) of this
section.
(e) The release of any information under this section may take the
form of personal interviews, telephone interviews, letters, or any
other method of transmitting information that ensures confidentiality.
The written authorization for release of this information may be
transmitted to the previous employer by any method that ensures
confidentiality.
(f) The information in paragraph (a) of this section may be
provided directly to the prospective employer by the driver, provided
the employer assures itself that the information is true and accurate.
(g) An employer may not use a driver to perform safety-sensitive
functions if the employer obtains information on a violation of the
prohibitions in subpart B of this part by the driver, without obtaining
information on subsequent compliance with the referral and
rehabilitation requirements of Sec. 382.605 of this part.
(h) An employer shall afford the driver a reasonable opportunity to
review and comment on any information obtained by the employer under
paragraph (a) of this section. The employer shall notify the driver of
this provision at the time of application for employment.
(i) Employers need not obtain information under paragraph (a) of
this section generated by previous employers prior to the starting
dates in Sec. 382.115 of this part.
PART 383--[AMENDED]
4. The authority citation for 49 CFR part 383 is revised to read as
follows:
Authority: 49 U.S.C. 3102, 31101 et seq.; and 31136; sec. 114,
Pub. L. 103-311, 108 Stat. 1673, 1677; and 49 CFR 1.48.
5. In Sec. 383.35, paragraph (f) is revised to read as follows:
Sec. 383.35 Notification of previous employment.
* * * * *
(f) Before an application is submitted the employer shall inform
the applicant that the information he/she provides in accordance with
paragraph (c) of this section may be used, and the applicant's previous
employers will be contacted, for the purpose of investigating the
applicant's work history. The employer shall also inform the applicant
that he/she will be provided an opportunity to review and comment on
any information obtained from previous employers.
PART 390--[AMENDED]
6. The authority citation for 49 CFR part 390 is revised to read as
follows:
Authority: 49 U.S.C. 5901-5907, 31132, 31133, 31136, 31502, and
31504; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677; and 49 CFR
1.48.
7. Section 390.15 is revised to read as follows:
Sec. 390.15 Assistance in investigations and special studies.
(a) A motor carrier shall make all records and information
pertaining to an accident available to an authorized representative or
special agent of the Federal Highway Administration upon request or as
part of any inquiry within such time as the request or inquiry may
specify. A motor carrier shall give an authorized representative of the
Federal Highway Administration all reasonable assistance in the
investigation of any accident including providing a full, true and
correct response to any question of the inquiry.
(b) Motor carriers shall maintain for a period of three years after
an accident occurs, an accident register containing at least the
following information:
(1) A list of accidents containing for each accident:
(i) Date of accident,
(ii) City or town in which or most near where the accident occurred
and the State in which the accident occurred,
(iii) Driver name,
(iv) Number of injuries,
(v) Number of fatalities, and
(vi) Whether hazardous materials, other than fuel spilled from the
fuel tanks of motor vehicle(s) involved in the accident, were released.
(2) Copies of all accident reports required by State or other
governmental entities or insurers.
(c) Motor carriers shall make available, within 30 days after
receiving a request for information about a driver's accident record
from a new or prospective employer, all records and information within
the accident register that pertain to that driver's accident record.
PART 391--[AMENDED]
8. The authority citation for 49 CFR part 391 is revised to read as
follows:
Authority: 49 U.S.C. 504, 31133, 31136, and 31502; sec. 114,
Pub. L. 103-311, 108 Stat. 1673, 1677; and 49 CFR 1.48.
9. In Sec. 391.21, paragraph (d) is revised to read as follows:
Sec. 391.21 Application for employment.
* * * * *
(d) Before an application is submitted, the motor carrier shall
inform the applicant that the information he/she provides in accordance
with paragraph (b)(10) of this section may be used, and the applicant's
prior employers will be
[[Page 10556]]
contacted for the purpose of investigating the applicant's background
as required by Sec. 391.23. The employer shall also inform the
applicant that he/she will be provided an opportunity to review and
comment on any information obtained from previous employers.
10. In Sec. 391.23, paragraph (c) is revised and new paragraphs (d)
and (e) are added to read as follows:
Sec. 391.23 Investigation and inquiries.
* * * * *
(c) The investigation of the driver's employment record required by
paragraph (a)(2) of this section must commence as soon as possible, but
no later than 30 days after the date the driver's employment begins.
The investigation shall consist of personal interviews, telephone
interviews, letters of inquiry, or any other method of obtaining
information that the motor carrier deems appropriate. Each motor
carrier must make a written record with respect to each previous
employer that was contacted. The record must include the previous
employer's name and address, the date the previous employer was
contacted, and its comments with respect to the driver. The record
shall be maintained in the driver's qualification file.
(1) The following information, as a minimum, must be obtained from
all previous employers that employed the driver to operate a commercial
motor vehicle:
(i) Any accidents, as defined by Sec. 390.5 of this subchapter, in
which the driver was involved during the preceding three years;
(ii) Any hours-of-service violations resulting in an out-of-service
order being issued to the driver within the preceding three years;
(iii) Any failure of the driver, during the preceding three years,
to undertake or complete a rehabilitation program pursuant to
Sec. 382.605, after being found to have used, in violation of law or
Federal regulation, alcohol or a controlled substance;
(iv) Any use by the driver, during the preceding three years, in
violation of law or Federal regulation, of alcohol or a controlled
substance subsequent to completing such a rehabilitation program.
(2) Previous employers shall respond to requests for the
information in paragraph (c)(1) of this section within 30 days after
the request is received.
(d) The motor carrier shall afford the driver a reasonable
opportunity to review and comment on any information obtained during
the employment investigation, including the information described in
paragraph (c)(1) of this section. The motor carrier shall notify the
driver of this right at the time of application for employment.
(e) The information required under paragraphs (c)(1)(iii) and (iv)
of this section must be obtained pursuant to the driver's written
authorization.
[FR Doc. 96-6130 Filed 3-13-96; 8:45 am]
BILLING CODE 4910-22-P
