Final Rule entitled "Safety Performance History of New Drivers"

Tuesday,
March 30, 2004

Part III

Department of
Transportation
Federal Motor Carrier Safety
Administration
49 CFR Parts 380, 390, and 391
Safety Performance History of New
Drivers and Minimum Training
Requirements for Longer Combination
Vehicle (LCV) Operators and LCV DriverInstructor Requirements; Final Rule

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Federal Register / Vol. 69, No. 61 / Tuesday, March 30, 2004 / Rules and Regulations

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
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Final rule.
AGENCY:

SUMMARY: The Federal Motor Carrier
Safety Administration amends the
Federal Motor Carrier Safety
Regulations (FMCSRs) to specify: The
minimum driver safety performance
history data that new or prospective
employers are required to seek for
applicants under consideration for
employment as a commercial motor
vehicle (CMV) driver; where, and from
whom, that information must be sought;
and that previous employers must
provide the minimum driver safety
performance history information. This
action will enable prospective motor
carrier employers to make more sound
hiring decisions of drivers to improve
CMV safety on our nation’s highways.
EFFECTIVE DATE: April 29, 2004.
FOR FURTHER INFORMATION CONTACT: Mr.
David Goettee, (202) 366–4097, Office of
Policy, Plans and Regulation, FMCSA,
400 Seventh Street, SW., Washington,
DC 20590.
SUPPLEMENTARY INFORMATION:

Outline
Background
Summary of the NPRM
Summary of the SNPRM
Discussion of Comments to the SNPRM
General Support and Opposition
Timetable To Obtain Safety Performance
History for New Drivers
Prospective Employer Responsibilities
Previous Employer Responsibilities
Applicants—Driver Rights
Access to Data
Rejection Rate and Cost/Benefits
Fees
Miscellaneous
Rulemaking Analyses and Notices
Regulatory Evaluation: Summary of Benefits
and Costs

Background
Current § 391.23 of Title 49 of the
Code of Federal Regulations (CFR),
‘‘Investigations and Inquiries,’’ sets forth
each motor carrier’s responsibilities to
inquire into the driving record and
investigate the employment history of
each prospective new driver. The
investigations are to obtain the driver’s

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employment history from the driver’s
previous employers 1 during the
preceding three years. The inquiries are
to obtain the driver’s driving records
from each State in which the driver held
a motor vehicle operator’s license or
permit during the preceding three years.
These investigations and inquiries
must be completed within 30 days of
hiring the new employee, or the
employer must have documentation of a
good faith effort to complete them.
Currently, there is no specification in
the FMCSRs for what minimum
information must be investigated, nor is
there a requirement for previous
employers to provide that information
to prospective motor carrier employers
when requested. Consequently, many
former employers decline to respond to
employment investigations, while
others—for fear of litigation—merely
verify that the driver worked for the
carrier and provide the driver’s dates of
employment.
The Hazardous Materials
Transportation Authorization Act of
1994 was signed into law on August 26,
1994 (Pub. L. 103–311, 108 Stat. 1677)
(HazMat Act), partly codified at 49
U.S.C. 5101 through 5127. Section 114
of the HazMat Act directed the Secretary
of Transportation (Secretary) to amend
§ 391.23 to specify the minimum safety
information to be investigated from
previous employers as part of
performing the required safety
background investigations on driver
applicants. Section 114 of the HazMat
Act requires a motor carrier at minimum
to investigate a driver’s accident record
and alcohol and controlled substances
history from all employers the driver
worked for within the previous three
years. All previous employers are
required to respond to the investigating
employer within thirty days of receiving
the investigation request.
The agency published a Notice of
Proposed Rulemaking (NPRM) for
implementing driver safety performance
history regulations in the Federal
Register on March 14, 1996 (61 FR
10548) and a Supplemental Notice of
Proposed Rulemaking (SNPRM) on July,
17, 2003 (68 FR 42339).
Summary of the NPRM
In response to the requirement at
section 114 of the HazMat Act of 1994,
the agency (then the Federal Highway
Administration (FHWA), FMCSA’s
predecessor agency) issued an NPRM on
March 14, 1996. It proposed changes to
49 CFR part 391 (Qualification of
1 As noted below, FMCSA’s definition for the
term ‘‘previous employer’’ includes a current
employer of the driver applicant.

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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 § 391.23
that motor carriers investigate the
following minimum safety information
for the previous 3-year period from all
employers who employed the driver
during that time: (1) Hours-of-service
violations that resulted in an out-of
service order; (2) accidents as defined
under § 390.5; (3) failure to undertake or
complete a rehabilitation program
recommended by a substances abuse
professional (SAP) under § 382.605; and
(4) any ‘‘misuse’’ of alcohol or use of a
controlled substance by the driver after
he/she had completed a § 382.605 SAP
referral.
The existing § 391.23(b) requirement
to make an inquiry for a driver’s driving
record(s) from the State(s) was retained.
In addition, to harmonize the proposed
§ 391.23(e) with then current alcohol
and controlled substances regulations
under § 382.413, the agency proposed
the conforming amendment that the
motor carrier must obtain the driver’s
written authorization to investigate the
required alcohol and controlled
substances information. Current and
former employers will be required to
respond to an investigating employer
within 30 days of receiving an
investigation request. The investigating
motor carrier would have to afford the
driver a reasonable opportunity to
review and comment on any
information obtained during the
employment investigation, and would
have to inform the driver of his/her right
to review the investigation information
received at the time of application for
employment. Conforming changes were
also proposed to §§ 383.35(f) and
391.21(d) to reinforce the driver
notification requirement.
Further, the agency proposed under
§ 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 § 391.23.
These provisions would facilitate the
required investigation of accident
information by prospective employers
by expanding a source of accident data
that was already being collected and
maintained by motor carriers for other
purposes.
When the NPRM was published in
1996, FMCSA’s alcohol and controlled

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substances regulations (codified at 49
CFR part 382) required employers to
investigate: (1) Alcohol tests with a
result of 0.04 or greater alcohol
concentration, (2) verified positive
controlled substances test results, and
(3) refusals to be tested. Section
382.413(a)(2) then allowed a previous
employer to pass along alcohol and
controlled substances test information
received from other previous employers
(as long as the information covered
actions occurring within the previous
two-year period). Under then
§ 382.413(b), if an employer found that
it was not feasible to obtain the alcohol
and controlled substances information
prior to the first time a driver performed
a safety-sensitive function for the
employer, that employer could only
continue to use the driver in a safety
sensitive function for up to 14 calendar
days. After that time period, the
employer could not use the driver in a
safety-sensitive function unless the
requisite information was obtained, or
the employer documented having made
a good faith effort to obtain it.
In its 1996 NPRM, the agency also
proposed numerous conforming
amendments to expand the type of
alcohol and controlled substances
information that should be sought under
§ 382.413(a). Employers would be
required to investigate whether, in the
past 3 years, a driver had: (1) Violated
the prohibitions in subpart B of part 382
or the alcohol or controlled substances
rules of another DOT agency, and (2)
failed to undertake or complete a SAP’s
rehabilitation referral pursuant to
§ 382.605 or pursuant to the alcohol or
controlled substances regulations of
another DOT agency.
Beyond incorporating the HazMat Act
requirements into part 382, the
violations enumerated in § 382.413
would also have been included in the
alcohol and controlled substances
regulations of ‘‘all DOT agencies.’’ The
FHWA believed that some drivers might
apply for positions that require driving
a CMV after having violated the alcohol
or drug use prohibitions of another DOT
agency. Therefore, the agency included
a requirement for an employer to
investigate information from all past
employers for which a driver had
worked in a position covered by the
alcohol and/or drug prohibitions and
testing requirements of another DOT
agency. That could ensure that persons
applying for positions that involved
operating a CMV would have all of their
relevant records of violations
investigated. It would also have ensured
that a SAP evaluated persons who test
positive, and that violators completed a
recommended rehabilitation program

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before returning to perform safetysensitive functions.
The proposed revision to
§ 382.413(a)(2) making it a requirement
to pass along alcohol and controlled
substances information received from
other previous employers, when
responding to a prospective employer’s
investigation required by then
§ 382.413(a)(1), was previously
incorporated into the FMCSRs by a
technical amendment published in the
Federal Register on March 8, 1996 (61
FR 9546). However, because it was later
determined that change to
§ 382.413(a)(2) constituted a substantive
change, which should have been subject
to public notice and comment before
becoming a final rule, the agency
included it in the March 14, 1996
NPRM. It was also subsequently
included in the notice and comment
that led to revision of part 40 in 2000.
In a related conforming amendment
proposed to then § 382.405, disclosure
of the information pursuant to then
§ 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 § 382.413(b), the agency
proposed extending the time period a
new employer would be allowed to use
a driver in a safety-sensitive function
without having received the requisite
alcohol and controlled substances
information from 14 days to 30 days.
After 30 days, the employer would have
been prohibited from continuing to use
the driver to perform safety sensitive
functions without having received, or
documented a good faith effort to
obtain, the driver’s alcohol and
controlled substances history.
Summary of the SNPRM
Comments received on the NPRM
were summarized in the SNPRM. One
significant issue was concern on the
part of motor carriers that they would be
subjected to considerable costs through
litigation if they furnished background
information and it was used to deny
employment to drivers. In section 4014
of the Transportation Equity Act for the
21st Century (TEA–21) (Pub. L. 105–
178, 112 Stat. 107, 409, (June 9, 1998)),
Congress created a limitation on liability
to protect motor carriers, their agents
and insurers from being found liable
because they supplied and used driver
safety performance history records in
the hiring decision process, but also
established restrictions intended to
protect the rights of drivers and their
privacy from misuse of such
investigative information.

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Another significant concern was that
the proposal would impose significant
new recordkeeping and reporting
burdens on previous motor carriers,
especially small entities. Commenters,
including the Small Business
Administration (SBA), requested that
the agency include considerably more
discussion of possible burdens to foster
more informed comments from the
public.
FMCSA responded to the
requirements of section 4014 of TEA–
21, now codified at 49 U.S.C. 508, and
the requests to provide more discussion
of the possible burdens on previous
employers. The agency published an
SNPRM on July 17, 2003 (68 FR 42339).
The FMCSA revised the proposals
through the SNPRM to include the new
employer liability limitation and driver
protections mandated by section 4014 of
TEA–21. It also refined the safety
performance history data list of items
prospective employers must request for
new applicants in response to
comments to the NPRM, and related
changes to agency alcohol and
controlled substances regulations made
by rulemakings since the 1996 NPRM.
In addition, an enhanced regulatory
flexibility analysis, Paperwork
Reduction Act analysis, and a detailed
regulatory evaluation required by the
new designation as a significant
rulemaking, were added addressing
comments to the docket from the SBA
and others.
The SNPRM specified minimum
safety performance history data that a
motor carrier must investigate from
previous employers under the proposed
§ 391.23(d) and (e). It differed from the
NPRM by: (1) Refining the list of what
information is to be investigated from
previous employers, (2) establishing
employer liability limitation for
providing and using the driver safety
performance history information, (3)
clarifying drivers’ rights to review,
correct, or rebut information provided,
(4) providing enhanced Regulatory
Flexibility Act and Paperwork
Reduction Act analyses, (5) providing a
detailed Regulatory Evaluation, and (6)
dropping conforming amendments to
part 382 because they were previously
addressed under separate rulemakings.
The SNPRM provided 45 days for public
comment, which closed on September 2,
2003.
Discussion of Comments to the SNPRM
As of October 1, 2003, the FMCSA
had received 38 written comments on
the SNPRM. Commenters include motor
carriers, corporations, associations,
individuals, an insurance company, a

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union, and a public interest
organization.
General Support and Opposition
Fifteen commenters including motor
carriers, associations, public interest
groups, and a union generally support
the SNPRM and state that the proposed
rule is a long overdue step in the right
direction.
Many of those same commenters, and
others, criticize various proposals in the
SNPRM. For example, American
Trucking Associations, Inc. (ATA)
writes—
Generally, there is consensus [among their
membership] that the proposal to amend the
Federal Motor Carrier Safety Regulations
(FMCSRs) to require previous employers to
respond to employment and safety history
inquiries will be beneficial and will enhance
the ability of motor carriers to obtain specific,
objective information on important aspects of
prior safety performance of driver applicants
beyond what is now generally furnished.
* * * Despite our general support, the
intended safety gains will not be realized
unless several fundamental changes are made
in the proposed rule.

The opposition to the proposals set
forth in the SNPRM generally center
around the process for obtaining driver
safety performance history information,
the limited liability of employers, the
burden placed on motor carriers to
provide and obtain the employee
information, and FMCSA’s cost/benefit
analysis. For example, Con-Way
Transportation Services (Con-Way)
comments that the rule would ‘‘delay
the hiring of drivers, increase
paperwork and [administrative burdens]
with little or no benefit’’ and ‘‘[t]he cost
assumptions made by the FMCSA are
insufficient.’’ In addition, one
individual writes that the burden
should not be on the motor carriers to
enforce alcohol and controlled
substances rules, but rather on the State
to suspend a driver’s license.
Owner Operator Independent Drivers
Association, Inc. (OOIDA) also states
that ‘‘The requirements for motor
carriers to investigate the safety
background of truck drivers as part of
the hiring process has always been a
good idea in theory but a dubious
practice under the FMCSA rules.’’
OOIDA continues, ‘‘Beyond a carrier’s
duty to determine whether a driver is
qualified under the rules to drive a
truck, the existing rule does not require
a carrier to take any particular action or
make any particular decisions based on
the driver information it receives.’’
OOIDA also expresses a unique
concern to this proposed rule. OOIDA
comments that—

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It is important for the FMCSA to create
rules that are fair on their face and comport
with the legal rights and responsibilities of
the parties under the law. But FMCSA should
also keep in mind that professional drivers
have little or no bargaining power with motor
carriers. Carriers set the driver’s agenda
through every step of the hiring process and
during the length of their relationship.
Drivers who do not accede to a carrier’s
demands, no matter what they are, usually
face one result, termination. Drivers who try
to assert their rights, including the kind of
rights proposed in this rule, are told to be
quiet if they want to keep their job.

FMCSA Response: The FMCSA
appreciates the thoughtful comments
and many specific suggestions received
from commenters on both the NPRM
and SNPRM. As discussed under the
following topics, the FMCSA has
carefully considered these comments
and has incorporated many of the
suggestions into the final rule.
Timetable To Obtain Safety
Performance History for New Drivers
Several commenters discuss the
timetable for prospective employers to
obtain safety performance histories for
driver applicants outlined in the
proposed rule. Those commenting from
the perspective of being a prospective
hiring motor carrier commonly
suggested reducing the allotted time.
Those commenting from the perspective
of being a previous employer providing
driver safety performance history
information, commonly suggested
increasing the allotted time.
Several commenters are opposed to
the overall length of time the proposed
rule, in their view, would permit for
obtaining, providing, and refuting
employee history information. Under
the proposed rule, past employers
would have 30 days to respond to
prospective employers’ investigation
requests. There are up to two additional
days for providing copies of the
investigations to a driver wanting to
review his or her record, and possibly
another 30 days for the rebuttal process.
Truckload Carriers Association (TCA)
states that ‘‘assuming that FMCSA
intends for the prospective employer to
delay its hiring decision pending the
running of the appeal time, it would be
possible under the proposed rule for
carrier hiring decisions to be forced to
be delayed for as long as sixty (60)
days.’’
The length of time, write other
commenters, forces motor carriers to
hire drivers conditionally. As Con-way
writes, ‘‘most carriers, would not want
to hire someone until the investigation
is complete. Hiring a driver and then
terminating his employment after
receiving information from previous

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employers is not an acceptable
practice.’’ Another general concern with
the time allowed to obtain a driver’s
safety performance history is that such
a delay in the hiring decision process
will compel drivers to look for jobs
outside the industry.
Con-Way recommends an alternative
timetable. Con-Way suggests a 5/5/2/5
business day structure where: (1) The
prospective employer has five business
days to request the driver safety
performance history investigation data,
(2) the previous employer has five
business days to respond to the request
for information, (3) the applicant must
send corrections to the previous
employer within two business days, and
(4) the previous employer must respond
to the request for corrections within five
business days.
FMCSA Response: Because this is a
rather complex process with numerous
possibilities, each component of the
time line is discussed below in detail as
a separate topic. FMCSA has carefully
considered these comments and has
incorporated many of the suggestions
into the final rule, while balancing the
need for large truck and bus safety on
our nation’s highways.
30-Day Investigation Period (§ 390.15
and § 391.23 (g))
Seven commenters answered from the
perspective of a hiring motor carrier and
recommend reducing the time period
allowed for previous employers to
respond to requests for new driver
safety performance history information.
One of those commenters proposes that
the response time period be ten days.
Most of those seven commenters suggest
reducing the time period allowed for the
investigation from 30 days to five days.
Commenters cite various reasons for
recommending the reduction in
response time. For example, the TCA
explains from the perspective of the
truckload sector, ‘‘the trucking industry
has been experiencing a driver shortage
for years and this shortage is not
expected to end any time soon. Because
of the shortage, carriers have a critical
need to be able to screen prospective
drivers in the shortest time possible.’’
Commenters express concern that the
length of time would force some drivers
to look for employment outside the
motor carrier industry. In addition,
Consumer Energy remarks, a lesser
amount of time ‘‘should be ample time
to gather information that would already
be assembled in order to not delay a
potential employer’s hiring decision.’’
Finally, commenters express concern
that the length of time will force
conditional hiring of drivers while the
process is completed. As TCA explains,

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A major safety drawback of the 30-day time
frame proposed is that many carriers will
find themselves being forced to hire drivers
on a conditional basis instead of waiting as
long as thirty days to receive and review the
required information beforehand, only to
later find out that one or more of the drivers
they hired should not have been hired
because of the safety risk they pose. Clearly,
such an outcome unnecessarily puts the
public at risk and could easily be prevented
if the 30-days were reduced to five.

The International Brotherhood of
Teamsters (IBT) offers no objection to
reducing the time period as long as
employers can provide accurate
information in compliance with the
regulations in that time frame.
Two commenters answered from the
perspective of a previous employer
providing information. One
recommends increasing the time period
for a previous employer to respond.
This commenter suggests increasing the
time period to 60 days in order to
reduce the burden on small businesses.
Another commenter proposes a 15-day
hardship extension if the prospective
employer agrees.
FMCSA Response: The length of time
allowed for previous employers to
respond to an investigation is specified
in the HazMat Act as within 30 days.
Although FMCSA could specify a
shorter response time, the agency is
cognizant that the majority of motor
carriers that will now be required to
provide this information for the first
time are small businesses. FMCSA
believes that the implied 30 days in the
existing regulation for provision of this
data continues to be the most
considerate for the majority of impacted
entities. The regulation at § 391.23 (b)
and (c) has for many years said ‘‘* * *
must be made within 30 days of the date
the driver’s employment begins.’’ The
text proposed in the SNPRM for
§ 391.23(c) was slightly revised to
conform to the language set forth in 49
CFR 40.25(d) as ‘‘* * * must be
completed within 30 days of the date
the driver’s employment begins.’’
FMCSA notes that it has always been
up to the motor carrier whether to
immediately employ an applicant and
have that person operate a commercial
motor vehicle for that motor carrier
during the 30-days allowed for the
motor carrier to obtain the required
inquiry and investigation information.
This final rule still leaves that decision
to the motor carrier and its insurer.
Two-Day Response to Driver
(§ 391.23(i)(2))
The SNPRM proposed that the
prospective employer be required to
provide the driver with his or her
previous employer-provided records

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within two days of the driver’s written
request, or within two days of having
received the information if the driver
request is presented before the
investigation information arrives. Five
commenters recommend increasing the
time that a prospective employer has to
respond to a driver’s request for copies
of the information received from
previous employers. Recommendations
were for five, seven, or ten days.
Commenters cite the proposed 2-day
requirement as an unreasonable burden
especially during concentrated hiring
periods, stating that the time to retrieve
records, especially if records are kept off
site, and limited staff resources are
reasons to increase the time period.
Most commenters mention that an
increase in this time period should not
unduly disrupt prospective employer
hiring operations.
One commenter agrees with FMCSA’s
proposal of two business days for the
prospective employer to provide a copy
of the investigative data to the driver.
FMCSA Response: FMCSA asked
whether a longer time period should be
allowed, and suggested 5, 7 and 10 days.
Comments to the docket, especially in
regard to small business concerns,
appear to generally favor lengthening
the time allowed for a prospective motor
carrier to provide previous employer
information to a driver who requests a
copy of that investigation information.
Therefore in the final rule FMCSA has
increased the proposed 2 days for that
function to 5 days. The agency believes
this will provide carriers a greater
degree of flexibility without
detrimentally impacting driver rights.
30-Day Driver Correction and Rebuttal
Period (§ 391.23(j)(3))
Almost no commenters directly
addressed this issue. Two commenters
recommend reducing the time the
previous employer has to send the
corrected or rebutted information to the
prospective employer from 30 days to
20 days. Another recommends 5 days.
The commenters suggest this change in
order to significantly reduce the time
both the applicant and the prospective
employer are awaiting a decision on the
applicant’s employment.
OOIDA is concerned that drivers have
no leverage to get previous employers to
correct driver safety performance
history, and a disgruntled previous
employer might deliberately delay
responding as long as allowed, thus
leaving the driver unemployed for that
period of time. Both TCA and National
School Transportation Association
(NSTA) are concerned about the total
time that could elapse before a hiring
decision could be made.

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FMCSA Response: The few
commenters who addressed this
question are in favor of shortening the
time period allowed for the driver and
a previous employer to resolve
differences, or include a rebuttal from
the driver in the previous employer’s
information. There was no opposition to
shortening the time allowed from any of
the commenters to the docket in
response to this question in the SNPRM.
After reviewing these comments,
FMCSA believes a shorter response
period is warranted.
Therefore, the final rule is revised to
reduce the proposed 30 days for a
previous employer to respond to a
request for correction to 15 days. This
still allows the previous employer the
time and opportunity to review the
driver’s record to determine if the
previous employer agrees the correction
is warranted.
The final rule further clarifies that if
the driver chooses to submit a rebuttal,
the previous employer has 5 days to
forward the rebuttal to the prospective
motor carrier employer and to append a
copy of the rebuttal to any other
information in the driver’s safety
performance history record. The agency
believes that drivers will have
somewhat of a disincentive to submit a
rebuttal first, if a correction is possible.
This is because a rebuttal presents a
conflicting story to a prospective motor
carrier employer, whereas a correction
represents agreement between the
parties involved. Upon receiving a
rebuttal, the previous employer must
forward a copy of it to the prospective
motor carrier employer and append it to
the driver’s safety performance history
record.
There are two scenarios that could
occur when the driver applicant
receives a copy of the previous
employers’ safety performance history
information. Under the first scenario,
the driver could first request a
correction. The previous employer
could agree to the correction and
forward the corrected information to the
prospective motor carrier employer
within 15 days. However, if the
previous employer disagrees with the
driver that a correction is warranted, the
previous employer could decline to
correct and notify the driver within 15
days of its decision not to do so. The
driver could then submit a rebuttal, and
the previous employer would have five
(5) days to forward the rebuttal to the
prospective motor carrier employer, and
include the rebuttal in the driver’s
safety performance history record.
Under the second scenario, the driver
could simply submit a rebuttal as a first
step, with no request for correction of

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the data. The previous employer would
then have five days to forward a copy
of the rebuttal to the prospective motor
carrier employer.
Thus, the 30 day time period is
reduced to a minimum of 5 days and a
maximum of 20 days. FMCSA believes
this responds to commenters concerns,
while not detrimentally impacting the
drivers or employers involved.
Review Time
Under the proposed rule at
§ 391.23(i)(2), a driver may submit a
written request to the prospective
employer to review his or her safety
performance histories received by that
motor carrier. OOIDA suggests that,
rather than the driver needing to request
his or her previous employer
information to review, the prospective
employer should automatically give the
driver a copy of any background
information it receives. OOIDA supports
the driver’s right to access his or her
record, and believes this
recommendation will lead to quicker
corrections, streamline the investigation
process, and eliminate unnecessary
burden on the driver to submit a
request.
American Truck Dealers Division of
the National Automobile Dealers
Association (ATD) states that as
proposed, employers would have two
days to provide an employee access to
information upon request, and prior
employers would have 30 days to
respond to a driver’s concerns. They
point out that the rule does not appear
to set a time limit for the driver’s review
itself. ATD recommends that we allow
drivers 3 days after receipt of requested
information to request corrections.
FMCSA Response: In response to
OOIDA’s point, FMCSA believes it is
important to minimize the cost of
regulations. However, it is also
necessary that a reasonable opportunity
be provided drivers to review, correct
and rebut previous employer safety
performance history information. Thus,
any driver must be able to request that
prospective motor carrier employers
provide information received from
previous employers. To minimize the
potential for such requests to be
frivolous actions taken by some drivers,
FMCSA requires this request to be in
writing. FMCSA believes that it would
be overly burdensome for prospective
employers to provide information not
requested or frivolously requested by
the driver.
FMCSA can not address ATD’s
recommendation in this final rule on
setting a limit on how long a driver has
to respond to a previous employer
seeking correction or rebuttal, since this

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is not addressed in the SNPRM.
Moreover, the agency believes this is
likely to be self-regulating, since it is in
the driver’s interest to request correction
or rebuttal as quickly as possible.
Prospective Employer Responsibilities
3-Year Requirement (§ 390.15(a);
§ 391.23(d))
Under the proposed rule, motor
carriers must contact all the previous
DOT regulated employers of the
applicant driver from the last three
years. Seven commenters address this
requirement. Several commenters
mention the ineffectiveness and
paperwork burden of this requirement.
Two commenters state that with the
high level of driver turnover involved in
their sector of the industry [truckload],
requesting information from prior
employers in the last three years could
involve numerous inquiries. Also, the
potential for gaps in employment
history poses problems in complying
with this requirement. Another
commenter mentions the paperwork
burden on small businesses and that
this requirement forces motor carriers to
keep employment records longer than
the six months now required for hoursof-service record of duty status logs.
A few commenters discuss more
specifically the requirement that three
years of employment history must be
investigated. One commenter
recommends that all DOT modes be
consistent in the time period required
for the background investigations. For
example, the length of background
investigations is specified as 2-years in
part 40, and 3-years in part 391. Another
commenter submits that no requirement
in the rules should create longer
retention periods than those currently
applicable. For example, records
relating to the collection process for
alcohol and controlled substances
testing programs must be retained for
two years (§ 382.401(b)(2)), whereas
records of negative and cancelled
controlled substances test results must
be maintained for a minimum of one
year (§ 382.401(b)(3)). Finally,
commenters suggest that only the
immediate former employer needs to be
contacted or that a valid commercial
driver’s license should be sufficient
evidence of a prospective employee’s
driving record.
OOIDA expresses concern that if
‘‘FMCSA requires former carriers to turn
over all safety employment history in
the carrier’s possession, then in many
instances it will be requiring more than
three years of records to be
transmitted.’’ OOIDA continues by
saying that ‘‘FMCSA does not give

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guidance in the SNPRM as to whether
the previous carrier should be required
to delete any information older than
three years from its own records or from
the records it received from other
carriers.’’ OOIDA is concerned that
older information would be less reliable
and less accurate.
AT&T observed that driving is a
minor part of at least some of their jobs.
They asked whether the inquiries and
investigations must be made for every
job applicant or only for candidates who
are actually being extended a job offer,
and when must they be made?
FMCSA Response: The requirement to
investigate all former employers of the
past 3 years is specified in the HazMat
Act. FMCSA therefore has no latitude,
and must specify in the final rule that
the background investigation cover the
prior three years. The problem with
possible gaps in employment history
based on this process is well known. It
includes former employers that have
gone out of business, as well as those
not listed by the driver applicant when
applying for a job. The alcohol and
controlled substances regulations at 49
CFR 40.25(c) and 40.333(a)(2) attempt to
mitigate such possible gaps in previous
employer information by requiring an
employer to retain for 3 years any
§ 40.25(b) specified information that any
previous employer furnished and to
pass the most recent 2-years of it along
to prospective employers performing an
investigation of the driver applicant.
The retention period specified for
data in the driver qualification file in
§ 391.51(d) has been 3-years since at
least 1971. The data retention period
specified for hours-of-service records of
duty status logs in § 395.8(k) has been
6-months since 1982. No changes to
these retention periods were proposed
in the SNPRM, and therefore none are
being made in this final rule.
Parts 40 and 382 currently specify
making investigations to previous
employers for a minimum of 2-years
regarding alcohol and controlled
substances data. However, the HazMat
Act requires all safety performance
history investigations, including those
for alcohol and controlled substances
information, to be made to all employers
of the driver for the previous three
years, which is what was proposed in
the SNPRM. A motor carrier that is in
compliance with the new 3-year
investigation requirement in § 391.23
will automatically be in compliance
with the 2-year background
investigation requirements of parts 40
and 382.
The 2-year requirement for data
retention found at § 382.401(b)(2) refers
to information about the processes used

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by the employer to collect the alcohol
and controlled substances information,
not the actual results that are considered
driver safety performance history
information. The correct reference for
data retention about positive driver test
results would be § 382.401(b)(1), and it
specifies 5 years as the minimum
retention time. The one year
requirement for data retention found at
§ 382.401(b)(3) refers to negative test
results and canceled tests.
However, FMCSA believes the thrust
of the comments is focused on the
background time period that must be
investigated. They are correct that
§ 40.25(b) specifies investigating
employers from the previous 2-years.
Since the HazMat Act specifies this
investigation must be for 3-years, motor
carriers will now be required to
investigate one additional year of
alcohol and controlled substances
background driver safety performance
history information than entities
regulated by other DOT modes.
In order to clarify when the 3-year
time period begins, text for the final rule
is modified for § 391.23(e) to define that
the three years to be investigated and
reported on begins from the date of the
employment application. This is the
point of reference used in parts 40 and
382, and such text already exists in the
proposed text at § 391.23(d) for accident
data. In regard to OOIDA’s concern
about more than 3-years of background
data being provided by previous
employers, FMCSA believes most
employers where allowed will choose
not to retain or provide data older than
the 3-year minimum requirement as a
means of reducing their costs.
The requirements in parts 40 and 382
encourage the prospective employer to
complete the investigations before
allowing the driver to perform safety
sensitive functions for that employer.
However, just as in part 391, they do not
require the employer to complete the
investigations until 30 days from the
date the driver’s employment begins.
Thus, an employer would be free to
screen and test the driver in any way the
employer chooses prior to performing
the investigations required by this
rulemaking, including hiring the driver.
However, after 30 days from beginning
employment, the employee may not be
used to operate a CMV unless the
responses to the investigation requests
are received and placed in the
appropriate file, or documentation of a
good faith effort to obtain such data is
placed in that file.
In regard to the question by AT&T,
FMCSA is aware there are different
screening processes used by different
employers covered by the FMCSRs. As

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pointed out by AT&T, some employers
physically see and screen the driver
before deciding to perform the
background inquiries and investigations
required by § 391.23 under this final
rulemaking. Some begin the § 391.23
inquiry and investigation process
immediately for all records available
based on phone applications for each
applicant before seeing them.
Companies absolutely may perform
substantial screening of potential
employees on their own company job
criteria that forms the major portion of
the job responsibilities. The requirement
contained in this final rule merely
requires the company to complete the
inquiries and investigations required by
§ 391.23 on all drivers that will operate
a CMV within 30 days of that employee
being hired. Such drivers have invested
considerably in acquiring skills
sufficient to qualify to work for
companies. A similar pattern applies to
a number of employers covered by the
FMCSRs, but whose primary business
requires the employee to have skills in
addition to being a driver, plumber,
electrician, etc. All such employees
have much more at stake to preserve
their professions, and may be less likely
to have used alcohol or controlled
substances or been involved in
numerous accidents. It would be good
business sense for such companies to
only perform inquiries and
investigations required by § 391.23 after
they have determined the applicant
passes all their other company screening
requirements.
Accident Information (§ 391.23(d)(2))
The HazMat Act requires prospective
motor carrier employers to investigate
accident data for the prior three years,
and for previous motor carrier
employers to provide all accident data
for that driver for the previous three
years from the date of the application.
As pointed out in the SNPRM, some
process is needed to enable a smooth
transition from the current regulation’s
one year retention requirement to the
three year retention period required by
the HazMat Act.
The SNPRM proposed a phased
process whereby beginning on the
effective date of the final rule, motor
carriers would be required to retain all
accident information then retained in
their accident registers, plus all new
accident information, for three years.
This adds a requirement of two
additional years of retention to the
current one year retention requirement.
Thus, the retained accident data will
grow from the current one year of
retained data to three years over time.

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16689

No comments were received on that
phased approach to data retention.
Therefore, the proposal as presented in
the SNPRM is included in the final rule.
TCA states that the proposed
§ 391.23(d)(2) would require past
employers to report and prospective
employers to review the specific data
related to a driver’s accident record, as
specified at § 390.15, for the preceding
three years, and include it in the
driver’s investigation history file. TCA
believes that, while such accident
information may be relevant to FMCSA
and clearly should be maintained by
carriers, such information is not at all
relevant to a hiring decision and should
therefore not be required.
OOIDA is concerned about the
definition of ‘‘accidents.’’ OOIDA states,
‘‘It is the experience of OOIDA members
that the term ‘‘accident’’ is sometimes
used loosely in the trucking industry.
* * * This casual use of the word
‘accident’ leaves drivers’ safety histories
vulnerable to interpretations that are
inaccurate and could unreasonably
damage their job prospects.’’ OOIDA
suggests referring to the definition of
‘‘accident’’ as defined in § 390.5 to help
avoid this problem.
Other commenters express concern
about the accident data itself. Current
§ 390.15(b)(1) lists six items that must
appear on the accident register. ATA
believes that two items from the
accident register, driver’s name and date
of accident, along with two data
elements that are not in the accident
register, (1) any traffic citation(s) related
to each accident and (2), if available,
whether each accident was determined
to be ‘‘preventable’’ or ‘‘nonpreventable.’’, are necessary to make an
informed hiring decision.
In contrast, J.B. Hunt expresses
considerable concern about the amount
of effort that would be required to deal
with driver protests about carrier
attribution of ‘‘preventability.’’ It says
‘‘We deal with requests daily to change
our attribution of preventability of
accidents on driver’s records. The
burden to maintain all of the rebuttals
and explanations on why every accident
should be non-preventable would, in
and of itself, be extremely burdensome.’’
FMCSA Response: The HazMat Act
requires previous employers to report 3years of accident information to
prospective employers. The NPRM,
SNPRM and this final rule all use the
existing definition of accident as
contained at 49 CFR 390.5. The only
changes proposed in the SNPRM and
finalized in this rule to § 390.15 are for
accident data retention to allow a phasein period from the current one year to
the required three years of accident data

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retention and provision. If employers
choose to share information about minor
accidents not included in the definition
at § 390.5, there is no prohibition on
them doing so. However, for purposes of
making the minimum requirement clear,
the phrase ‘‘as defined by § 390.5 of this
chapter’’ is added to § 391.23(d)(2) in
the final rule.
Regarding ATA’s comments to change
the data items/elements recorded in the
existing accident register and reported
in response to requests for information,
FMCSA believes this would represent a
substantial change in the existing
definition of accident data, and is
outside the scope of this rulemaking.
Comments to the docket, very explicitly
by J.B.Hunt, point out that attribution of
‘‘preventable’’ and ‘‘non-preventable’’
contributes to drivers contesting the
carrier’s accident information. Thus,
FMCSA has decided not to make
revision to the definition of accident as
part of this final rule.
Standardized Forms and Instructions
(§ 391.23(f))
The SNPRM proposed a conforming
amendment in § 391.23(f) that the
prospective employer provide the
previous employer with the driver’s
written authorization to obtain his or
her safety performance history
information, often via a release form.
Online Employment Verification
Services (OEVS) states that the problem
of releasing alcohol and controlled
substances information is magnified
because prospective employers do not
know the proper verbiage to include on
the driver authorization release.
According to OEVS, at least 10% of the
requests do not meet the requirements
of DOT for driver authorization. In
addition, up to 75% are vague or
difficult to interpret as to whether they
comply, resulting in slower turn around
time for the prospective employer to
receive the requested information.
OEVS suggests that DOT provide
standard verbiage for requestors to
include in the driver authorization form
they use. This would allow 3rd party
providers, such as OEVS and previous
employers, to process such requests
without hesitation, eliminating the time
and cost required to scrutinize and
analyze whether the correct details are
contained within the document, thus
increasing the percentage of successful
requests and shortening the response
times.
Also, commenters suggest that the
FMCSA provide outreach and standard
instructions along with standardized
forms. For example, Petroleum
Marketers Association of America
(PMAA) ‘‘believes that the way FMCSA

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issued its new hours-of-service
regulation is an appropriate model of
how to publicize any new regulations
on conducting safety background
checks. The brochures, pocket cards,
etc., explaining the hours-of-service rule
were very beneficial to PMAA
members.’’
FMCSA Response: The defining
procedures for what must be
investigated and what must be reported
for alcohol and controlled substances
are spelled out in parts 40 and 382. This
rule merely adds conforming
amendments for that requirement to part
391. The specification of what must be
included in the driver’s authorization
for the previous employer to release the
alcohol and controlled substances data
is found at § 40.321(b). In order to
clarify what authorization information
must be provided, a reference to
§ 40.321(b) is added in this final rule at
§ 391.23(f). FMCSA notes that entities
like OEVS are free to provide their
clients with a form meeting the
requirements of § 40.321(b).
Record of Compliance
The proposed rule would require
employers, both prospective and
previous, to maintain certain employee
records. Petroleum Transportation &
Storage Association (PTSA) urges the
FMCSA to drop the 1-year record
retention requirement for non-hired
drivers. PTSA believes that this
provision would make prospective
employers a depository of information
that is completely unrelated to their
responsibility for maintaining and
providing employee records under the
FMCSRs. In addition, PTSA argues that
there is no need for a prospective
employer to keep such records, since
the very same information is already on
file with the driver’s previous employer,
and that the potential liability involved
with the management of non-hire driver
information is far too great when
weighed against any discernable
regulatory benefit that may result.
Finally, PTSA stresses the burden for
small businesses of maintaining records.
Reusable Industrial Packaging
Association (RIPA) agrees with PTSA’s
arguments and also does not believe it
serves any purpose to require
employers, who decide against hiring a
driver applicant, to maintain for a year
any information received from previous
employers.
Two commenters specifically discuss
the documentation requirement at
§ 391.53(b)(2) for the prospective
employer to show that a ‘‘good faith’’
effort was made to contact previous
employers. National Ready Mixed
Concrete Association (NRMCA) explains

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that good faith ‘‘is a vague term, open
to many interpretations.’’ It asks for
specific examples of ‘‘good faith’’ efforts
to help eliminate any question about
being in compliance. The other
commenter states that the ‘‘current
system of ‘‘good faith’’ checks is
absolutely abysmal’’ and that any
system of contacting former employers
should be administered by a pseudogovernmental agency or contractor.
FMCSA Response: FMCSA proposed
the one year retention of background
investigation information for all drivers
as part of its desire to establish an
enhanced capability for enforcement of
these requirements. However, we are
persuaded that eliminating this
requirement would do no harm. If the
driver is not hired, it is not relevant to
safety concerns whether the prospective
employer performed the investigations
and inquiries required by § 391.23.
Further, if the driver applies and is
hired by another motor carrier, that
employer is required to have performed
the required investigations and inquiries
and to have placed the information
received in the appropriate file, or
documented a good faith effort to have
done so. Any additional data that may
have been gained regarding previous
employers who are failing to provide the
required information can be gained via
the complaint process, as recommended
in §§ 391.23(g)(3) and 391.23(j)(4).
With regard to NRMCA’s request for
examples of good faith efforts, FMCSA
notes that this term has been used in the
FMCSRs for a number of years. The
agency believes that the most
appropriate guidance it can give in the
context of this rule is that employers
document in the driver investigation
history file their efforts to comply with
the requirements to obtain the
background investigation information.
This could also include documentation
of having reported previous employers
to FMCSA using the procedures at
§ 386.12 that failed to provide the
required safety performance history
information.
Further, FMCSA believes the
environment for verifying the ‘‘good
faith’’ requirement will be substantially
changed by this rule. There is no current
requirement for previous employers to
respond to investigations. Establishment
of this requirement by this final rule
requires previous employers to furnish
the information and keep records of
having done so. This will make it
possible to corroborate whether a motor
carrier has contacted a previous
employer. Thus, the substantial change
in the reporting and recordkeeping
requirements of previous employers will
in turn create the ability to verify

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whether there was a good faith effort
made by prospective motor carriers to
obtain this data.
In regard to assigning the
responsibility for administering driver
safety background checks to a separate
entity, the HazMat Act specifically
requires the prospective employer, or
perhaps their agent, to make the
investigations to the previous
employers, or their agent.

employer does not provide the required
information in the allotted time.’’
Advocates for Highway and Auto Safety
(AHAS)

Previous Employer Responsibilities

AHAS states that the agency needs to
emphasize, with specific action items,
how it intends to publicize and educate
the motor carrier community about its
new responsibilities under this
proposed regulation, exactly what
oversight actions it will carry out to
ensure very high rates of compliance,
and specifically what enforcement
actions will be brought against noncomplying motor carriers.
Dart Transit Company (Dart)
comments that the enforcement
procedures, if a carrier does not
respond, are unclear. Dart asks, ‘‘What
penalty or penalties will be imposed
and how will enforcement be achieved
and by whom?’’ OOIDA agrees that ‘‘if
FMCSA expects carriers to comply with
these rules, it needs to consider
adopting some kind of enforcement
mechanism, including monetary
penalties.’’ In addition, Dart believes
some direction should be adopted in
terms of the inquiring carrier. For
example, Dart asks, ‘‘What is an
inquiring carrier obligated to do if a
response is not received?’’ OOIDA also
remarks that whereas a driver who does
not authorize release of his or her
alcohol and controlled substances data
cannot be hired, there are no penalties
or consequences for carriers that fail to
abide by this proposed rule. Finally,
these commenters identify enforcement
as an important issue and obstacle to the
success of this rule.
Also, two commenters state that there
is no requirement for previous
employers to document or even
maintain a log of to whom information
about a previous employee was
furnished. The commenters believe that,
without this requirement, many
previous employers may fail to respond
because they are not required to keep a
record as such and do not fear
enforcement.
However, one commenter, concerned
with the additional administrative
burden, disagrees with the other
commenters. It prefers that the FMCSA
allow the industry some flexibility in
responding to inquiries about the
performance of past employees without
mandating completion and retention of
additional forms, especially if the driver

Requirement To Respond
Several commenters express concern
that the proposed rule does not impose
a requirement on the previous employer
to respond to the prospective
employer’s request. Most commenters
on this issue state that there is no
burden of compliance placed on the
previous employer. Coach USA explains
that in their experience, ‘‘many previous
employers fail to respond because they
are not required to keep a record as such
and do not fear enforcement.’’ In
contrast, DAC Services recommends
that—
The record keeping requirements should be
consistent between Parts 40.25 and 391.23. If
the FMCSA has found part 40.25(g) useful, it
might prove useful under the requirements of
391.23. On the other hand, if 40.25(g) has not
been beneficial, it should not be required
under 391.23 and the 40.25(g) requirement
should be revisited, as it requires
considerable record keeping efforts on the
part of motor carriers.

Although the proposed rule provides
previous employers with liability
‘‘limitation’’ regarding their response to
investigations, Coach USA points out
that it does not allow for any means to
enforce non-compliance by previous
employers that choose to ignore such
requests. Coach USA believes that this
rule will be ineffective unless it
includes an unequivocal requirement to
respond for previous employers and to
maintain corresponding records.
Two commenters are specifically
concerned that the rule does not place
liability with former employers that do
not respond to a prospective employer’s
request for information within 30 days.
In addition to issuing the rule, one
commenter suggests that FMCSA
educate employers, provide standard
forms (possibly via the internet), and
otherwise eliminate every possible
reason for not supplying a valid
response.
Five commenters sought clarification
of the rule’s enforcement mechanism.
For example, Consumer Energy states,
‘‘The SNPRM suggests taking
enforcement action, but does not
provide details of the action, when an

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* * * strongly supports this rulemaking
action, but we are concerned that the agency
does not plan any targeted oversight actions
to ensure that prospective employers are
requesting safety performance information on
applicant drivers or that current or previous
employers are complying with requests for
the appropriate information.

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16691

retires, leaves the industry, or otherwise
does not seek further employment.
FMCSA Response: The conforming
requirement in this rule for providing
the required information to the
prospective motor carrier employer and
keeping a record of having done so,
especially for alcohol and controlled
substances, is based on the provisions
found at § 40.25(g). That provision states
that a previous employer must maintain
a written record of the information
released, including the date, the party to
whom it was released, and a summary
of the information provided. Thus, this
previous employer recordkeeping
provision is already contained in the
proposed driver safety performance
history requirements. Nonetheless, as
clarification to avoid any possible
confusion in the future, the language
contained at § 40.25(g) is also added to
the conforming language in the final
rule at § 391.23(g)(1).
As with all violations of our
regulations, FMCSA may cite and take
enforcement action against carriers that
do not comply with our regulatory
requirements. Carriers who fail to
maintain the records required by this
rule may be cited and are subject to the
fines and penalties prescribed in
Appendix B paragraph (a)(1) to Part 386,
Penalty Schedule; Violations and
Maximum Monetary Penalties;
Recordkeeping, which says ‘‘a person or
entity that fails to prepare or maintain
a record required by parts 385 and 390–
399 of this subchapter, or prepares or
maintains a required record that is
incomplete, inaccurate, or false, is
subject to a maximum civil penalty of
$550 for each day the violation
continues, up to $5,500.’’
FMCSA is aware a number of
previous employers covered by
requirements in parts 40 and 382 are
currently failing to provide the
information specified at § 40.25(b) and
required by § 40.25(h). Carriers that fail
to provide the information required by
§§ 391.23(g)(1) and 391.23(j) are subject
to the fines and penalties prescribed in
Appendix B paragraph (a)(3) to Part 386,
Penalty Schedule; Violations and
Maximum Monetary Penalties; Nonrecordkeeping violations, which says ‘‘a
person or entity who violates parts 385
or 390–399 * * * is subject to a civil
penalty not to exceed $11,000 for each
violation.’’
FMCSA has a formal process in place
for drivers and carriers that wish to file
a complaint against a person or entity
that fails to comply with the FMCSRs.
FMCSA intends for drivers and
prospective motor carriers to inform the
agency using the existing complaint
process specified at § 386.12, entitled

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‘‘Complaint.’’ This includes previous
motor carriers that either fail to correct
their records or include the driver’s
rebuttal, or who fail to provide the
required information to prospective
motor carriers. To make this clear, the
FMCSA has added language to the final
rule in §§ 391.23(g) and 391.23(j)
pointing out that drivers and
prospective employers should report
information about such failures to
comply with these requirements.
Complaints about failures to comply
will be investigated and carriers failing
to comply will be cited, and in addition
may be subject to civil penalties for
other violations found during a carrier
compliance review.
The agency believes inclusion in this
rule of the requirement to record and
provide the alcohol and controlled
substances data, as well as accident
data, may additionally create a legal
liability for previous employers who fail
to provide this data. Previous employers
who fail to provide the required driver
safety performance history information
may ultimately be found liable if the
requesting motor carrier hires an unsafe
driver without receiving the requested
history and the driver is involved in an
accident.
Additionally, FMCSA believes the
motor carriers who will choose to pay
little attention to safety performance
history information received and hire
drivers with substantial adverse safety
performance histories, likely are the
same ones already doing this with
driving behavior traffic conviction
information received on the MVR from
the licensing State or such predecessor
States. FMCSA is in the process of
analyzing a capability to enable SafeStat
to better identify motor carriers who are
systematically hiring drivers with poor
driving records, and target them for a
carrier compliance review. This is
expected to also help with identifying
motor carriers who continue to hire
drivers with poor safety performance
history. A copy of a current updated
report on that analysis is included in the
docket as document 85.
To ensure the effectiveness of this
rule, FMCSA will undertake a number
of activities, including: (1) Preparing
guidance materials for enforcement of
these new requirements; (2) monitoring
the level of complaints received for noncompliance; (3) removing the previously
issued interpretation Question and
Answer 1 under § 391.23; (4)
encouraging use of the FMCSA safety
violation and commercial complaint
hotline (1–800-DOT-SAFT) and Web
site (www.1–888-dot-saft.com) for filing
complaints; and (5) assembling a team
to develop recommendations for

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continued improvements to the
program.
With regard to the commenter
concerned about recordkeeping
regarding drivers that retire, leave the
industry, or otherwise do not seek
further employment as a driver after
leaving a previous employer, there
would be no requirement placed on any
employer to report additional
information.
Use of Third Party Providers
Two commenters ask FMCSA to add
appropriate language to the final rule to
specifically allow third-party providers
to obtain driver safety performance
history information for motor carriers.
These commenters believe that thirdparty providers perform valuable
services for motor carriers, especially
during the driver-applicant screening
and hiring process. The commenters
state that, as written, the rule seems to
imply that a motor carrier may use a
third-party to perform the required
investigations. The commenters believe
that the rule should explicitly allow
third parties to obtain information for
prospective employers.
FMCSA Response: The language in
the proposed rule does not address how
the prospective motor carrier may
obtain information from previous
employers. FMCSA does not believe it
is appropriate for it to specifically
endorse commercial companies.
The agency has existing guidance in
the form of Question and Answer 2
under §391.23, indicating that a motor
carrier may use a third party provider to
obtain information to meet the inquiry
requirements of § 391.23. Question 2
under § 391.23 says: ‘‘May motor
carriers use third parties to ask State
agencies for copies of the driving record
of driver-applicants?’’ The answer is:
‘‘Yes. Driver information services or
companies acting as the motor carrier’s
agent may be used to contact State
agencies. However, the motor carrier is
responsible for ensuring the information
obtained is accurate.’’ There is similar
guidance under § 391.25. FMCSA is
aware that many motor carriers use
third parties to obtain this information
for them rather than directly dealing
with many different State driverlicensing agencies.
The preamble to the SNPRM pointed
out that if such a third-party party is the
agent of the motor carrier, it would be
covered by the limited liability
implemented by this rule. If the third
party is not the agent of the motor
carrier, then it is not covered by these
regulations, but is still operating under
the provisions of the Fair Credit

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Reporting Act (FCRA) (15 U.S.C. 1681 et
seq.) for performing this function.
The provision by Congress of granting
limited liability to agents of the motor
carriers in carrying out the requirements
of the HazMat Act is an opportunity for
motor carriers and their agents to take
advantage of such services, but it is not
a requirement. The discussion about
whether previous employers may charge
fees for providing the required data,
talks in terms of FMCSA encouraging a
competitive, open, free, efficient, market
economy approach to management of
the fee issue.
Driver Information To Be Reported
(§ 391.23(d)(1) and (2))
Several commenters urge FMCSA to
clarify and to add details on what needs
to be included in the information
investigated about a driver’s safety
performance history, and what must be
provided. For example, Qwest
Communications International, Inc.
(Qwest) recommends that additional
language be added to § 391.23(d)(1)
describing the general information about
a driver’s employment record that
should be investigated. Qwest proposes
that the general information further
identify employment and job
responsibilities.
OOIDA agrees and asks FMCSA to
revise the description of employee
background information in two ways.
First, the rule should limit the
investigation to information directly
related to a driver’s qualifications under
Federal or State law. Second, the rule
should require that the information
reported in safety background
investigations be made with sufficient
detail so that an accurate safety
assessment of the driver can be made.
OOIDA is concerned that the broad
language of proposed § 391.23(d)(1)
could invite the dissemination of a wide
range of non-safety information. In that
section FMCSA would require that a
prospective employer investigate
‘‘General information about a driver’s
employment record.’’ OOIDA believes
that this requirement invites any and all
information to be transmitted as part of
a driver’s safety background. OOIDA
asks that FMCSA be much more
specific, by listing the ‘‘facts’’ that make
up the general background history that
FMCSA proposes be transmitted, such
as date of hire, safety information, and
final date of employment.
FMCSA Response: FMCSA agrees that
the wording contained in § 391.23(d)(1)
of the SNPRM for information the
prospective employer is to request of the
previous employer is general in nature.
What was intended for this category is
for the prospective motor carrier to

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provide the driver identifying data, such
as name, date-of-birth, and social
security number for the driver on whom
it is requesting safety performance
history information, and for the
previous employer to provide
information about that same driver,
such as starting and ending employment
dates and job responsibilities. However,
the agency is not specifying that
information in the regulatory text of this
final rule, so that employers have some
degree of flexibility in providing such
basic information. FMCSA does not
believe that this type of information will
detrimentally impact drivers. All of the
information requested in § 391.23 is in
the context of driver safety performance
history.
How To Respond Absent Any Data
(§ 391.23(g))
Section 391.21(g) requires all previous
employers to respond to each request for
a driver’s record as outlined in the rule.
Safe Fleet, Inc. comments that the
proposed rule does not require a
response unless the previous employer
has derogatory information to report;
however, the new employer must have
a response within 30 days from every
previous employer. Safe Fleet believes
the previous employers should be
required to respond in every case.
FMCSA Response: All previous
employing motor carriers must respond
to each investigation within 30 days as
specified in the HazMat Act. Responses
are required even in the absence of data
on accidents, or alcohol and controlled
substances abuse. Accordingly, FMCSA
has made this more explicit in
§ 391.23(g) of the final rule by adding
words clarifying that a response is
required even when there is no accident
or alcohol or controlled substances data,
by stating that no such data is on file.
Designated Contact Persons
Qwest requests that FMCSA include a
provision indicating that employers
must designate a person to receive
requests for information from
prospective employers and former
employees, and clarify when the
proposed time frames for required
actions start. Qwest states that it is a
large, national company, which
routinely receives correspondence that
is incorrectly or inadequately addressed,
thus delaying delivery to the
responsible party by up to several days.
Qwest believes that compliance with
time frames for required actions in the
rule should be based on start times that
begin when the designated responsible
person within the organization receives
the request for action, rather than when

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16693

the request may be received by the
organization.
FMCSA Response: Each employer is
free to provide their contact information
in any way they desire to facilitate this
process, such as on its Website, or
perhaps designating an agent.
FMCSA has added requirements in
the final rule language at § 391.23(d) for
each prospective employer to include
information on a point of contact when
requesting this investigative background
information, and for the previous
employer to provide similar contact
information on its response for use by
a driver who may wish to contact that
previous employer.
FMCSA intends for the previous
employer’s 30-day response period to
begin when the prospective motor
carrier submits the investigation request
to the previous employer or its agent.

previous employers to maintain
rebuttals adds a significant and
unnecessary burden to previous
employers. For example, Coach USA
requests that proposed § 391.23(j)(3) be
amended to exclude the last sentence,
which requires the previous employer to
append the driver’s rebuttal to its file
information and to provide the complete
file in any future requests. Coach USA
believes that this specific requirement
will place an undue burden on previous
employers, and prejudice any response
they may give to prospective
investigating employers. Coach USA
considers the fact that the rule allows
for an applicant’s rebuttal as sufficient
to ensure that previous employers
provide accurate information, should
they choose to respond.
J.B. Hunt states that it has a concern
with

Applicability to Current Employer
Three commenters state that the term
‘‘previous employer’’ does not include
the current employer. If an individual is
currently employed and is seeking a
new position, his or her current
employer should be required to provide
the accident history. FMCSA has clearly
stated that previous employers must
respond to requests for information
under the new regulations. Unaddressed
however, is the issue of whether a
company currently employing a driver
must respond to a request from a
company that may be recruiting its
driver. Two commenters want the
FMCSA to clarify whether a carrier that
currently employs a driver must
respond to a request for information
from a prospective employer. A third
commenter recommends that FMCSA
require both previous and current
employers to respond to new or
prospective employer inquiries.
FMCSA Response: The HazMat Act
defines previous employer as any
employer that employed the driver in
the preceding 3 years. From the
prospective employer’s point of view, a
current employer is a previous
employer. In accordance with the
HazMat Act definition, FMCSA has
added a definition for previous
employer to § 390.5 in the final rule to
clarify that it includes a current
employer.

* * * the provision for requiring motor
carriers to maintain and provide to
prospective employers the rebuttals of former
drivers when the information provided by
the motor carrier is correct, complete, and
factual. J.B. Hunt terminates many drivers
whose only purpose in life after termination
is to make anyone associated with the carrier
miserable. These drivers would likely submit
rebuttals of several hundred pages, just to
increase the carrier’s costs.

Appending Rebuttal (§ 391.23(j)(3))
Under proposed § 391.23(j)(3), if a
driver refutes information from a
previous employer, that rebuttal must be
appended to, and provided with, the
driver safety performance history
information to each subsequent
prospective employer that requests it.
Commenters state that requiring

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J.B. Hunt further says ‘‘It should not
be the previous motor carrier’s
responsibility to provide the rebuttal to
prospective employers.’’
Two commenters suggest that, in
order to keep the process manageable
and to be consistent with the Fair Credit
Reporting Act, the rebuttal should be
limited to not more than 100 words.
FMCSA Response: The HazMat Act
specifies that the safety performance
history data be requested from the
previous employer. The TEA–21
limitation on liability requires the driver
to have an opportunity to correct the
data or rebut it. If the driver determines
a rebuttal is needed, it is necessary for
that rebuttal to be provided each time,
along with the data to which the driver
does not agree. Since the data is coming
from the previous employer or its agent,
it is necessary for the driver rebuttal
information to also come from the
previous employer or its agent. Without
this mechanism in place, future
prospective employers would not
receive the driver’s rebuttal as part of
the information furnished.
FMCSA has not specified a limit for
the length of the driver rebuttal. The
agency believes it is important for
drivers to have the opportunity to
adequately respond to what they believe
is inaccurate information. Further, the
agency has no evidence demonstrating

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that this would be widely abused by
drivers.
Applicants—Driver Rights
Applicants Rights (§ 391.23 (i), (j), (k)
and (h))
Under the proposed rule, the
prospective employer must inform the
driver in writing of his or her review,
correction and rebuttal rights in the
hiring process. DAC Services
recommends that the rule explicitly
state that this written notification may
be given to the driver subsequent to
initiating the hiring application and
initial screening processes to obtain
driver safety performance history data,
other than alcohol and controlled
substances. This clarification would
allow motor carriers to accept driver
applications for employment over the
phone or via the Internet without
written notification of due process
slowing or hindering such methods of
quickly obtaining information.
Similarly, PTSA wants clarification of
the rule that requires prospective
employers to notify driver applicants of
their rights regarding previous
employers’ records before an
application is submitted. The rule only
specifies that the prospective employer
must ‘‘inform’’ the driver of the
procedures for the use and collection of
safety performance records. PTSA asks,
‘‘Does the FMCSA intend that this
notification, like the notice of due
process rights under 49 CFR 391.23(i),
be in writing?’
PTSA also wants guidance on the
requirement that the previous employer
‘‘take all precautions reasonably
necessary to ensure the accuracy of the
records.’’ PTSA requests that this
language (and similar language
contained in §§ 391.23(h) and (k)(2)) be
clarified to specify the type of
precautions the FMCSA has in mind.
FMCSA Response: FMCSA has added
a clarifying statement to the final rule
language for § 391.23(i) that says the
required notification in writing of driver
rights may occur anytime prior to a
hiring decision being made, but it must
be made in writing to all applicants,
including those not hired. The SNPRM
pointed out that if a motor carrier is in
compliance with § 391.21(b) this could
be done as part of the employment
application the driver signs.
The intent is to make it clear that
provisions of the Fair Credit Reporting
Act can apply as part of the job
application process. The FCRA allows
notification of the driver by telephone
(or other electronic communication) that
the prospective employer will obtain the
inquiry and investigation information

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required by § 391.23 based on that
application communication. FMCSA
also notes that if the driver makes the
application over the Internet, the
required notification in writing about
the driver’s due process rights to review,
correct and rebut could be provided by
the prospective employer as part of the
application process as well.
The request by PTSA for guidance
regarding how previous employers can
be in compliance with the requirement
to ‘‘take all precautions reasonably
necessary to ensure the accuracy of the
records’’ cannot be addressed by
FMCSA. To qualify for limited liability
protection set forth in the HazMat Act,
Congress intends for the previous
employer to furnish accurate safety
performance history information. As
part of that limited liability concept,
Congress also established the
requirement for drivers to be able to
review, correct and rebut the
information furnished. The test of
whether an employer has taken
reasonable precautions to ensure
accuracy would be addressed within the
context of a driver taking a previous
employer to court trying to prove the
information furnished is false. With this
as the test, employers should have
sufficient records to substantiate that
any information they reported is
accurate to the best of their knowledge.
Employee Access and Rebuttal
The proposed rule allows the driver to
submit a written rebuttal to the previous
employer when agreement cannot be
reached on whether information
provided to the prospective employer is
erroneous. According to commenters,
while the SNPRM is clear on the
responsibilities of the driver and the
previous employer with regard to the
rebuttal, the proposal is silent on the
prospective employer’s responsibility
when faced with conflicting
information. PTSA requests ‘‘that this
provision be clarified so that
prospective employers fully understand
their responsibilities (if in fact there are
any) when faced with conflicting
information relating to driver safety
performance history.’’
Two commenters disagree with the
requirement of allowing a prospective
driver an opportunity to refute
investigative information, citing a large
burden on small businesses and slowing
the hiring process with no significant
benefit. Several commenters think that
the driver should only be allowed to
access the information if employment is
denied. For example, Qwest—
* * * proposes that access to this
information be provided only if employment
is denied by the prospective employer based

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solely on the investigative information. This
will allow drivers who have been denied
employment an opportunity to rebut
potentially inaccurate information. It will
also decrease the administrative burden on
employers.

Further, ATA states that an applicant’s
right to review information provided by
previous employers should only address
those persons who are rejected for
employment because of the information
received. Hired drivers have the ability
to review and access their personnel
files, making a regulation for such
drivers unnecessary. TCA agrees and
states,
The costs that such an across-the-board
requirement would impose on carriers would
be significant and, in the absence of a dispute
over the accuracy of the information, seems
entirely unnecessary and unjustified.
FMCSA’s final rule should only extend the
right of a driver to receive the information
from the prospective employer in the event
that the driver is denied employment based,
in whole or in part, on the information
provided by a past employer.

The IBT, however, agrees with the
provision that the driver should be
allowed, upon request, to see his or her
records obtained from previous
employers. In addition, the IBT
questions the other commenters’
assertion that the cost of providing
records to drivers would be
burdensome. The IBT claims ‘‘that
allowing drivers to view the information
provided whether they are denied
employment or not may be more
efficient and result in saved costs as it
will allow drivers to correct or rebut
information sooner, without having to
wait until they are denied jobs based on
the information.’’
Finally, OOIDA believes that the
rebuttal process leaves the driver in a
distinct disadvantage because a driver
can only correct his or her record during
the hiring process while the carrier can
make changes to the driver’s record at
any time. OOIDA suggests that a driver
have a right of rebuttal or correction any
time a carrier makes a change to the
driver’s record.
FMCSA Response: Congress, in the
HazMat Act, requires that the previous
employer provide driver safety
performance history information to the
prospective motor carrier employer.
TEA–21 requires that all drivers have
the right to a rebuttal, and that the
previous employers’ information may be
made available to the prospective motor
carrier’s insurance provider. TEA–21
also requires that provisions
implementing these requirements be
added to § 391.23 dealing with
investigations and inquiries required as
part of the hiring process.

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There are no requirements in the
HazMat Act, TEA–21, or existing
regulations regarding what a prospective
employer is required to do with
previous employer information. They
are similarly silent regarding what to do
with driver rebuttals that presumably
will conflict with the previous employer
information.
TEA–21, however, provides the
insurer of the motor carrier requesting
the data with the same limited liability
as the prospective motor carrier
requesting the data. FMCSA believes
that by also granting insurers limited
liability to gain access to the
information (the final rule excludes the
alcohol and controlled substances
information), Congress intended for
business decisions between the
prospective motor carrier and the
insurance provider to function as a
mechanism by which this data will be
evaluated. FMCSA believes there is
motivation for the carrier and insurer to
make good sound judgments of the
relative risk of prospective drivers.
Those judgments will now be based on
better documentation about the driver’s
past safety performance history.
FMCSA believes the final rule must
allow all drivers the right to submit a
rebuttal, as specified in TEA–21. The
request by OOIDA to allow the driver a
rebuttal right at any time a motor carrier
makes an entry to the driver’s record is
not required by the HazMat Act or TEA–
21, and would be intrusive on the
operating practices of motor carriers.
Appeal Process (§ 391.23(i) and (j))
Commenters express concern that the
appeal process would inhibit
prospective employers from hiring a
driver. For example, TCA opposes
FMCSA’s proposed appeal process. A
driver’s dispute over information
provided by a past employer, would
require the prospective employer to
delay making its hiring decision until
the dispute has been resolved or the
driver provides his or her rebuttal. TCA
believes the impact that such a
mandatory requirement would have on
carriers [in the truckload sector of the
industry] would be extremely
impractical from an operational
standpoint and also unduly burdensome
and costly. TCA states, on the other
hand, ‘‘* * * FMCSA’s decision not to
mandate such a delay in hiring
decisions would have a minimal impact
on drivers, since the dispute resolution
process should enable the driver to cure
the inaccuracy in a reasonably timely
fashion and thereby limit any denial of
work based on the disputed information
* * *’’

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The IBT, however, disagrees with
TCA’s position. The IBT does not think
it would be proper for the FMCSA to
issue a regulation explicitly permitting
a prospective employer to make a
decision not to hire a driver before the
process is complete.
FMCSA Response: There is no
requirement for the motor carrier to
delay putting the driver to work
pending the appeal process. The
proposal in the SNPRM was that the
investigations ‘‘* * * must be
completed within 30 days of the date
the driver’s employment begins.’’
FMCSA has modified § 391.23(c) in the
final rule to make it clearer that the
employer is allowed to put the driver to
work for up to 30 days without having
completed the required safety
performance history background
investigation.
FMCSA desires to keep the new
requirement for safety performance
history § 391.23 as close as possible to
current requirements so that the
provisions of this rule are consistent
with existing requirements. The
requirement is that the inquiries and
investigations must be performed and
information received within 30 days or
the motor carrier must not allow the
driver to continue operating a CMV. In
order to keep that requirement as it is,
the additional new times added by this
rule for completing the driver appeal
process are defined as being outside of
the 30 days allowed for obtaining the
initial safety background information.
For example, a motor carrier hires a
driver and on the 29th day from the start
of employment, the hiring motor carrier
receives a response from a previous
employer that contains accident data. If
the driver requests a copy of that report
from the prospective (hiring) employer,
and then decides to request correction
or to rebut it, the hiring motor carrier is
not required by these regulations to
prevent the driver from operating a
CMV for the new (prospective)
employer while the driver is exercising
his or her rights to review, correct or
rebut the information provided.
Access to Data
Insurer Access to Data (§§ 391.23 (h)
and 391.53(a)(1))
The Daily Underwriters of America
thinks that the regulation should be
expanded to include insurers of
commercial autos. It argues that
‘‘Allowing the insurance company
access to the same information would
enhance the decision making process
and offer another professional opinion
on the safety risk presented by each
driver.’’

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The TCA and ATA are opposed to
allowing insurers of motor carriers
access to safety performance history
information. TCA argues that the
provision will effectively give insurers
the implicit right to direct the hiring
decisions of motor carriers and may
expose carriers to liability for adverse
hiring decisions.
ATA points out that part 40 allows
the release of alcohol and controlled
substance information to anyone named
on the driver’s release authorization.
ATA states that ‘‘ * * * § 391.53(a)(1),
as proposed, would be inconsistent with
§ 40.25.’’
FMCSA Response: In regard to the
Daily Underwriters of America request
to expand this rule to include
commercial autos, the FMCSA notes it
only has authority to regulate
commercial motor vehicles as defined in
§ 390.5. Unless the autos are carrying
placardable amounts of hazardous
materials (thus requiring a commercial
driver license (CDL) to operate them)
they are not CMVs. Additionally, in part
391 FMCSA only has authority over
motor carriers operating in interstate
commerce. Thus, unless the commercial
autos are being operated by a motor
carrier in interstate commerce carrying
placardable amounts of hazardous
materials, FMCSA has no jurisdiction
over such autos even if used
commercially, such as in sales fleets.
In regard to TCA and ATA not
wanting to release accident data to their
insurers, FMCSA notes that Congress
specified in TEA–21 that the motor
carrier’s insurer could have access to the
safety performance history. This is one
of the mechanisms by which the safety
performance history data is made part of
the hiring decision process.
In regard to ATA’s question about
whether the proposed § 391.53(a)(1) is
inconsistent with § 40.25, FMCSA
believes the reference should more
accurately be to § 40.321. FMCSA
further notes that the regulations in
§ 391.23 apply to what a motor carrier
can do. Section 391.53(a)(1) says the
prospective motor carrier cannot give
the alcohol and controlled substances
information to its insurer. Departmental
policy in part 40 seeks to protect the
privacy rights of drivers, and does not
want alcohol and controlled substances
information released for purposes other
than intended, namely to keep drivers
with positive tests from operating CMVs
until they have completed the process of
return-to-duty status. There is no need
for insurers to have access to this data,
because prospective employers are
prohibited from allowing such drivers to
operate CMVs.

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However, as ATA points out, if a
driver wishes to give authorization for
their alcohol and controlled substance
data to be released by the previous
employer to the insurer of the
prospective motor carrier, they are free
to do so. However, there is no regulatory
requirement for them to do so.
Access to and Use of Driver
Investigation History File (§ 391.53(a))
The SNPRM contained a provision
that restricts access to the Driver
Investigation History file to the hiring
decision process and to those persons
involved. Con-Way and the ATA oppose
this provision. Both commenters cite the
burden of maintaining two files—a
Driver Investigation History file, which
can only be accessed by those involved
in the hiring process, and a second
Driver Qualification file with the rest of
an employee’s information. Both
commenters recommend that the
provision be amended to permit storage
of all of an employee’s information in
one file. ATA also argues that
management personnel of a motor
carrier should have the right to review
the information in a driver’s file for any
valid reason whether or not they were
involved in the hiring process.
RIPA seeks guidance with regard to
the agency’s interpretation of the term
‘‘controlled access’’ as it is used in
§ 391.53. In this section, the proposed
rule states that the Driver Investigation
History file ‘‘must be maintained in a
secure location with controlled access.’’
FMCSA Response: FMCSA does not
believe it has any latitude to permit the
investigation records required by the
rule to be mingled with the inquiry
records, nor to allow the investigation
information to be used for any other
purpose, even for FMCSA required
reviews, such as the annual review
required by § 391.25.
TEA–21, as codified at 49 U.S.C.
508(b)(1)(B), requires the prospective
motor carrier to ‘‘* * * protect the
records from disclosure to any person
not directly involved in deciding
whether to hire that individual.’’ In
addition, 49 U.S.C. 508(b)(1)(C) requires
that ‘‘the motor carrier has used those
records only to assess the safety
performance of the individual who is
the subject of those records in deciding
whether to hire that individual.’’
In addition to the Congressional
requirement at 49 U.S.C. 508(b)(1)(C), as
it relates to Con-Way’s and ATA’s
concern about the burden of
maintaining an extra file, FMCSA notes
that this file is customarily maintained
separately for alcohol and controlled
substance results. The proposal at
§ 391.53 was developed based on this

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common practice of motor carriers
maintaining such files separately in
order to be able to withstand driver
court challenges when asked how they
can prove they met the requirements of
part 40 for secure and controlled access.
Thus, FMCSA proposed that the Driver
Investigation History file could be
combined with the already separately
maintained alcohol and controlled
substances response file in order to
minimize any additional costs imposed
on motor carriers.
The terms secure and controlledaccess are adopted as a conforming
amendment from part 40, which has
used these terms for some time.
National Database or Access to FMCSA
Data Files
Instead of requesting driver
information from previous employers,
nine commenters advocate a national or
centralized database to include
information, such as driver accidents,
alcohol and controlled substances test
results, safety related medical
conditions, citations, and out of service
inspections. The arguments presented
for such a database include better
tracking of drivers, less expensive and
easier access to the information, and
less burden on the motor carriers. For
example, Consumer Energy explains
that a database system could eliminate
the paperwork burden, limit the
possibility of a driver’s falsification of
employment, failure to provide
documentation of previous employers,
and speed up the hiring process.
Consumer Energy recommends
modeling a database after the Nuclear
Regulatory Commission’s Personnel
Access Data System (PADS).
J.B Hunt concurs that a database
would lessen the burden to motor
carriers from the thousands of requests
for information gathered in the hiring
process. This commenter suggests
adopting a national program similar to
the California Pull-Notice Program
where motor carriers register new
drivers in a database of safety
performance indicators, such as
accidents, alcohol and controlled
substances test failures, and traffic
convictions. The administrator of the
database notifies employing motor
carriers when a driver’s record changes,
and drivers would have access to their
records to make rebuttals. The American
Bus Association agrees that such a
database ‘‘would solve the problem that
occurs when a driver applicant ‘forgets’
to list a previous employer to avoid
scrutiny.’’
TCA, ATA, and DAC Services all urge
FMCSA to allow motor carriers access to
driver information in the Motor Carrier

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Management Information System
(MCMIS) database. These commenters
argue that by giving access to this data,
motor carriers would gain access to
more information about a driver than
under this rule. ATA urges FMCSA
to immediately take the necessary action to
allow prospective motor carriers to access the
MCMIS database, on a real-time basis, for the
purpose of obtaining driver-applicants
accident data, as well as other important
roadside inspection safety compliance and
performance data.

Similarly, the Commercial Vehicle
Safety Alliance (CVSA) states that
roadside safety inspection reports
include information that would allow
prospective employers the opportunity
to analyze the driving habits of
prospective employees by reviewing
their FMCSR violation histories and that
of the vehicles they operated. Access to
this information might be accomplished
by providing access to driver specific
information via SAFER [Safety And
Fitness Electronic Records] and/or other
databases. Access to this driver
information would provide motor
carriers a more comprehensive
rendering on which to base their hiring
decisions. While the CVSA strongly
recommends motor carrier access to
driver specific roadside safety
inspection information, it also
recognizes the fiscal implication at both
the Federal and State levels. For this
reason the CVSA requests that FMCSA
be cognizant and sensitive to the limited
resources available in regard to
proposed upgrades to information
systems.
The IBT strongly opposes making
individual driver records publicly
available via MCMIS. IBT is concerned
about maintaining the confidentiality of
the information and believes the rule as
proposed implements the necessary
precautions to protect the
confidentiality of this information by
making it only available to individuals
involved in the hiring process.
FMCSA Response: The FMCSA
recognizes the interests demonstrated by
the suggestions to provide the safety
performance history for new drivers
using national databases rather than
investigations to previous employers.
For the benefit of those interested,
FMCSA provides this summary of
related activities in each of the
suggested areas.
FMCSA has been building the MCMIS
database of motor carrier information for
many years. However, the agency is also
aware that there are accompanying cost
and individual privacy issues. As the
commenters indicate, the MCMIS
contains information on accidents and
out-of-service orders, and is used by

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FMCSA for various purposes, including
prioritizing motor carriers to receive
carrier compliance reviews. In any
event, access to that MCMIS database or
the development of another database
was not proposed in the SNPRM, and is
outside the scope of this rulemaking.
Regarding an alcohol and controlled
substances database, section 226 of the
Motor Carrier Safety Improvement Act
of 1999 (MCSIA) (Pub. L. 106–159, 13
Stat. 1748 (December 9, 1999)) requires
a report to Congress on the feasibility
and merits of an alcohol and controlled
substance database capability. Work on
that report is progressing. When the
report is released to the public after
being sent to Congress, it will be placed
in docket FMCSA–2001–9664. The long
title of the report is ‘‘A Report to
Congress On the Feasibility and Merits
of Reporting Verified Positive Federal
Controlled Substance Test Results to the
States and Requiring FMCSA–Regulated
Employers to Query the State Databases
Before Hiring a Commercial Driver’s
License (CDL) Holder.’’
Regarding medical certification
information as part of the CDL process,
section 215 of MCSIA requires a
rulemaking to provide medical
certification information as part of the
CDL licensing process. Work on that
rulemaking effort is progressing as well.
There were studies related to the
possible value of a national database of
citations. However, there is no proposal
or funding to proceed with such an
effort. It appears far more cost effective
to instead focus on using the data about
traffic convictions available from the
Commercial Driver License Information
System (CDLIS), and also available to
motor carriers from the Motor Vehicle
Record (MVR) obtained from the
licensing State, and already required by
§ 391.23(b). For CDL drivers, the
FMCSA is working with the States to
improve the quality of this data in
accordance with section 221 of MCSIA.
Rejection Rate and Cost/Benefits
Several commenters addressed
FMCSA’s rejection rate in its SNPRM
cost/benefit analysis. Two commenters
take issue with the FMCSA use of a 4
percent rejection rate of applicants in
the SNPRM regulatory evaluation. These
commenters state that the actual rate is
much higher and that therefore the
FMCSA underestimated the cost of the
proposed rule. Con-Way states that the
rejection rate is closer to 80 percent, and
that therefore the cost would be $1.52
billion, not $76 million as stated in the
SNPRM. Con-Way states,
* * * there is no doubt that the proposal
will result in lots of paper and
administration. Not only employers but also

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potential applicants would be impacted, as
applicants may not be hired as quickly,
creating more hardship and loss of income
for job seekers.

Con-Way further states that the
analysis assumes, with no data to
support the assumptions, that there may
be a 0 percent, 10 percent, 25 percent
or 50 percent reduction in accidents
(what is identified as ‘‘deterrence
effect’’). In the opinion of Con-Way, the
fact that there is a wide range in
accident reductions included in the
sensitivity analysis implies there is little
data to support a more definitive
statement of benefits. Con-Way
concludes that the benefit analysis is
inadequate, flawed, and based on little
data and many assumptions.
The ATA contacted several motor
carriers of varying sizes, presumably
among their membership, to get a better
estimate of the rejection rate of CMV
driver applicants. ATA submitted the
results of its inquiries to the docket.
ATA states that the information
indicates the actual driver employment
rejection rate may be considerably
higher than the four per cent used by
FMCSA in its cost/benefit analysis. The
table contained in ATA’s document 83
in this docket gives the results of the
ATA inquiries. It also gives a weighted
mean rejection rate of 80.1 percent. ATA
suggests that FMCSA needs to further
investigate its rejection rate assumption
and reexamine its cost/benefit analysis
based on the new information.
Three commenters assert that
associated and administrative costs will
significantly exceed FMCSA’s estimates
and will cause significant economic
burden on the industry. For example,
AT&T estimates that its efforts to
comply with these regulatory changes
would result in very costly
modifications to an established, wellfunctioning system, which would take
considerable time. In AT&T’s opinion,
the FMCSA did not prove that the
benefit of the SNPRM’s proposal would
outweigh these costs.
FMCSA Response: FMCSA stated in
the preamble to the SNPRM, with a
reference to the supporting study in the
docket, that it was aware of the CDL
Effectiveness focus groups study
involving motor carrier safety directors
who stated that there is a substantial
rejection rate of CMV driver applicants.
A copy of the relevant portions of that
publication is included in the docket as
document 41. The preamble also stated
that because of limited information, that
observation was not included in the
regulatory evaluation. Additionally, the
SNPRM requested that more
information about rejection rates be
provided in comments to the docket.

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16697

Based on the additional information
received, FMCSA has revised both the
paperwork burden estimates and the
regulatory evaluation, using a higher
rejection rate, and thus yielding higher
burden and cost. These are discussed in
detail in the ‘‘Paperwork Reduction
Act’’ and ‘‘Regulatory Evaluation:
Summary of Benefits and Costs’’
sections later in this preamble.
Fees (Previous Employers or Third
Parties Charge)
Of those commenters that addressed
this issue, some do not want previous
employers to be allowed to charge a fee
to offset their costs of providing safety
background information about their
previous employees. Safe Fleet asserts
that all motor carriers are both previous
and new employers, so all should share
the burden and help out one another
with this cost. Two commenters suggest
that, if previous employers can require
a payment for the required safety
performance history information, it
should be a standard amount
determined by the FMCSA. ATA
specifically urges FMCSA to make a
decision on whether charging a fee for
safety performance history information
is allowed or prohibited.
FMCSA Response: There are two
distinct requirements under § 391.23,
namely for ‘‘Investigations’’ and
‘‘Inquiries.’’ Under ‘‘Inquiries’’ motor
carriers are required to obtain the
driving record from all States where the
driver held a license or permit in the
last three years. All States commercially
sell this information as the Motor
Vehicle Record (MVR) to authorized
users. Payment of the fee set by each
State is a condition of the MVR being
released by the State. These fees are set
by State government agencies for access
to public records. FMCSA has no part in
setting these fees.
Under the ‘‘Investigations’’
requirements of the § 391.23
‘‘Investigations and inquiries,’’
prospective motor carriers continue to
be required to request investigatory
information from previous employers,
and the minimum data elements are
now defined by this rulemaking. In
addition, previous employers are now
required by this rule to provide the
specified minimum information.
Further, as pointed out in the SNPRM,
it is an established practice for some
motor carriers to require a driver to have
driving experience before they will hire
the driver. (See document 41 in this
docket.) This means some carriers are
hiring the inexperienced new entrant
drivers, who systematically leave their
employ to go to work for carriers

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requiring some type of driving
experience.
Those carriers hiring inexperienced
new entrant drivers will systematically
be subject to the costs of providing the
safety performance history data, but will
not equally get the advantages of this
data from other previous employers.
The Regulatory Evaluation section
presents two possible scenarios, each
indicating that some motor carriers hire
drivers with no driving experience.
Under scenario 1, the percent of drivers
hired from outside the industry would
be over 25 percent new entrants. Under
Scenario 2, the percent of the drivers
hired from outside the industry would
be over 34 percent new entrants.
FMCSA points out that our
regulations do not prevent previous
employers from charging a fee for this
information. If such fees are charged to
offset carriers’ cost of providing the
required safety performance data,
FMCSA encourages development of a
market that establishes reasonable,
predictable fees. Although FMCSA
agrees any fees should be reasonable
and predictable, somewhat like the State
fees for the MVRs, FMCSA does not
believe it has the authority to set fees for
release of former driver safety
performance history information to
prospective employers.
However, FMCSA believes it has the
authority to require previous employers
to release the minimum data, for alcohol
and controlled substances specified in
part 382 and for accidents as defined in
§ 390.5, to the investigating prospective
motor carrier within the time period
required at § 391.23(g)(1), even if the
previous employer has to initially
absorb the costs for maintaining and
providing this information, i.e., extend
credit. Previous employers may not
condition release of this required
investigative safety performance history
information on first receiving payment
of a fee by the prospective motor carrier.
A copy of a corresponding FMCSA
interpretation to this effect in the
context of alcohol and controlled
substance information was placed in the
docket as document 55. This does not
apply to accident data not defined by
FMCSA and retained either pursuant to
§ 390.15(b)(2) or because the motor
carrier chooses to maintain more
detailed minor accident information for
their own purposes.
FMCSA does not believe it has a
regulatory role in establishing
reasonable, predictable fees for the
safety performance history information
previous employers are required to
provide once this rule is implemented.
What such fees may be, and how they
are collected, should be determined in

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a free, open, efficient, competitive
marketplace.
Miscellaneous
Relation of Hours of Service to Safety
Performance
The ATA believes that the regulatory
evaluation discussion in the SNPRM did
not provide the evidence showing the
claimed positive relationship between
hours of service violations resulting in
out-of-service orders and future safety
performance. ATA urges FMCSA to
place appropriate proof of this claimed
relationship in the public docket.
AHAS strongly disagrees with
FMCSA’s decision to accept the SBA
request to delete the requirement for
previous employers to disclose records
evidencing previous driver hours of
service (HOS) violations resulting in
out-of-service orders. AHAS is not
persuaded that the agency’s rationale for
excising this aspect of the proposed rule
has any merit. AHAS challenges that a
‘‘failure to require employers to provide
such information on driver HOS
violations to any prospective new
employer of that driver arguably abets
ongoing HOS violations by refusing to
stop their concealment from subsequent
employers.’’
FMCSA Response: With regard to
ATA’s comment, the information
referred to in the SNPRM was
developed in a study for FMCSA. A
preliminary report on this study was
presented at the 2002 annual
Transportation Research Board meeting
in Washington, DC. A copy of a current
report on that analysis is included in the
docket as document 85.
More accurately, the SNPRM
discussion refers to a positive and
significant relationship between a
measure developed by that study of
traffic convictions and driver out-ofservice (OOS) orders, which are largely
from hours of service violations or
record of duty (logbook/timecard)
violations. Drivers receiving more traffic
convictions for moving violations,
particularly those defined as CDL
serious or disqualifying convictions, are
identified by the required Commercial
Driver License Information System
(CDLIS) recordkeeping functions.
Depending on the traffic law
conviction received and the number of
such convictions, the driver may be
identified by the State driver licensing
agency as a safety risk requiring driver
improvement actions, such as
suspension or revocation, in accordance
with the CDL program regulations. It is
an underlying premise of the CDL
program that drivers with such
conviction patterns are considered

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higher risk for being involved in
accidents, and should be removed from
driving CMVs, either temporarily or
permanently.
The study found a significant,
positive, linear correlation between the
proposed carrier-driver conviction
measure with OOS orders and carrier
power unit crash rate. This implies that
if the driver OOS information were
available to prospective employers, it
could also be useful in predicting future
safety problems, including accidents.
The relationship of driver OOS orders
and future crash involvement is being
further researched.
In regard to the AHAS comments, as
stated in the SNPRM, FMCSA continues
to believe ‘‘* * * requiring this
information collection and establishing
a motor carrier recording requirement
would be particularly burdensome to
small entities * * *’’ ‘‘* * * because
this information is only systematically
reported to FMCSA as part of the Motor
Carrier Safety Assistance Program
(MCSAP) enforcement activities of the
States.’’ FMCSA provides the following
additional details why this would be
burdensome on small entities, as well as
not meet the three-year reporting
requirement of the HazMat Act.
Motor carriers are not currently
required by the FMCSRs to maintain a
three-year record for hours of service
violations resulting in an out-of-service
order. Requiring motor carriers to
maintain and provide three-years of
such information would necessitate
creating a new recordkeeping
requirement for motor carriers to obtain
and maintain this data, and creation of
such a process could be problematic.
The following things are currently
required. Drivers are required by
§ 395.13(d)(3) to notify their employer of
having received a driver out-of-service
order for an hours-of-service violation.
Motor carriers are then required by
§ 395.8(k)(1) to retain such data as a
supporting document for 6-months.
Under § 396.9(d)(3), motor carriers are
required to retain a copy of inspection
reports they receive from the driver,
some of which could include
information about a driver out-of-service
order, for 1-year.
Because of the known problem with
drivers not providing all such
information to their motor carrier,
FMCSA created a capability for motor
carriers to obtain a carrier profile from
FMCSA for a fee. If there is information
on that profile about a driver-out-ofservice order the motor carrier did not
receive from the driver, the motor
carrier may either contact the State
MCSAP agency that issued the report, or
request a facsimile copy of that

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information from the FMCSA for their
records for a fee.
There is no requirement for the motor
carrier to regularly obtain a carrier
profile in order to search for possible
missing driver OOS orders. However, if
the carrier requests a profile from
FMCSA, we require the carrier to pay a
fee to the agency for both the profile and
any missing facsimile data. This means
there is no reliable, institutionalized
process for motor carriers to be notified
of all such orders received by their
drivers. Even if the information were
obtained, the longest the motor carrier is
required to keep reports on file is 12
months for inspections.
The more reliable reporting process in
place is the States’ MCSAP agency
reporting this data to FMCSA, using
SAFETYNET 2 to place it in MCMIS.
There is no requirement for the States to
provide this information to motor
carriers.
Broader Applicability (Non Safety
Sensitive Functions)
The proposed rule requires that
prospective employers investigate
alcohol and controlled substance testing
information for prospective drivers
previously employed in safety-sensitive
positions. Qwest supports this
requirement. However, Qwest believes
the language in § 391.23(e) should be
modified to state that all prospective
driver alcohol and controlled substance
testing information should be
investigated, not just drivers that will
perform safety-sensitive functions for
the prospective employer.
FMCSA Response: The requirements
of part 382 only apply to persons
covered by part 383 (CDL) requirements.
Section 391.23(e) adds conforming
amendments for the requirements of
part 382 to those of part 391 as required
by the HazMat Act. It is possible an
applicant for a driving job that does not
require a CDL may have previously
driven vehicles requiring a CDL and
failed an alcohol or controlled substance
required test.
The specification at § 391.23(e)
applies to all drivers who held a safety
sensitive job in the previous 3 years. For
motor carriers, this is a CDL driver. If
they are driving a CMV, whether they
will perform a safety sensitive job for
the prospective employer does not
matter. The prospective employer is
required for such drivers to request the
2 SAFETYNET is a database management system
that allows entry, access, analysis, and reporting of
data from driver/vehicle inspections, crashes,
compliance reviews, assignments, and complaints.
It is operated at State safety agencies and Federal
Divisions and includes links to SAFER and MCMIS.
It is an Oracle based client-server system.

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alcohol and controlled substances
information. The requirement at 49 CFR
390.3(d) states an employer may specify
more stringent requirements as a
condition of employment. However, if
during the previous three-year period
the driver did not hold a safety sensitive
job subject to the requirements of part
40 or part 382, there is no requirement
for the previous employer to have
applied the testing requirements
required for safety sensitive jobs.
FMCSA does not have the authority to
require drivers not performing safety
sensitive functions to be subject to the
requirements of parts 40 and 382.
Liability Limitation (§ 391.23 (l))
All commenters support the provision
that limits liability when previous
employers are furnishing driver records.
Two commenters raise questions about
whether immunity will apply to State
courts and whether this provision will
prevent a driver who was not hired from
suing. Three commenters have specific
recommendations regarding the
language of the provisions. First, ConWay proposes that protections should
apply unless a person knowingly and
intentionally furnishes false
information. Second, ATA urges the
FMCSA to delete from § 391.23(l)(2) the
second phrase ‘‘* * * or who are not in
compliance with the procedures
specified for these investigations * * *’’
by placing a period after the word
‘‘information’’ and striking the balance
of the sentence in order to strengthen
the employer protections. However, the
IBT disagrees with ATA and claims that
this suggestion would immunize
employers from liability even if they do
not comply with the regulations.
Finally, Qwest recommends protections
for good faith compliance.
However, OOIDA believes that motor
carriers’ fear of liability is exaggerated.
OOIDA states
The proposed rule emphasizes carriers’
supposed fear of their exposure to legal
liability for following the rules. OOIDA finds
this fear suspect and vastly overstated.
OOIDA does not understand why any carrier
would express any fear of liability unless
they know or believe that the information
they are using is false, or that they are
engaged in the improper use of such
information. Furthermore, OOIDA is unaware
of any litigation brought against a carrier for
the creation of false information in a driver’s
safety performance history or the misuse of
such information. FMCSA presents no factual
record to back up this fear. From OOIDA
members’ experience, drivers’ careers are
much more likely to be damaged by carrier
misuse of background information than
carriers are at risk for litigation under the
rules.

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In addition, OOIDA expresses concern
that motor carriers knowingly passing
along false information received from
another carrier would be shielded from
legal liability.
FMCSA Response: The only basis
provided under the statute and this
regulation for a driver to have standing
in court is to allege the previous
employer knowingly provided false
information. If the driver proves false
information was provided by the
previous employer, the liability
limitation does not apply and the court
can determine and assess a penalty on
the previous employer. The preemption
language in TEA–21 at section 4014(c)
(see document 39 in this docket)
explicitly refers to State and local law
and regulations that create liability
associated with providing or using
safety performance history investigative
information.
FMCSA concurs with the IBT
comment to the docket that the HazMat
Act does not provide discretion for
partial or good faith compliance with
the procedures established by this final
rule. Motor carriers must comply with
the regulations.
Implementation
The previous topics and their
discussions indicate many commenters
are concerned about a number of
practical difficulties that must be dealt
with to effectively implement this rule.
Additionally the Small Business
Administration (SBA) submission to the
docket in response to the NPRM,
document 26, expresses concern that the
implementation needs of the large
number of small businesses should be
given more explicit attention. Two
issues SBA explicitly addressed were
the phasing in of accident data retention
and providing compliance assistance.
FMCSA Response: The issue of
phasing in accident data retention is
addressed separately, and FMCSA is
doing that. However, it only addresses
that specific aspect of implementation
that is impossible to accomplish until
enough time has passed to allow
accumulation of three years of data.
An additional issue is allowing a
reasonable enough time for all parties to
effectively implement the newly
required processes for data retention,
investigating, reporting, using data
obtained as part of the hiring decision
process, and managing the driver rights
processes. FMCSA determined that six
months after the effective date of this
rule is a reasonable balance between
motor carrier implementation and safety
requirements for all impacted parties to
implement the process capabilities
required to operate in compliance with

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this rule. This will also allow the
industry together with FMCSA to
develop and make available various
non-mandatory guidance materials.
Rulemaking Analyses and Notices
Privacy Act
Anyone is able to search the
electronic form of all comments
received into any of our dockets by the
name of the individual submitting the
comment (or signing the comment, if
submitted on behalf of an association,
business, labor union, etc.) You may
review DOT’s complete Privacy Act
Statement in the Federal Register
published on April 11, 2000 (Volume
65, Number 70; Pages 19477–78) or you
may visit http://dms.dot.gov.
Executive Order 12866 (Regulatory
Planning and Review) and DOT
Regulatory Policies and Procedures
The FMCSA determined this action is
a significant regulatory action within
the meaning of Executive Order 12866,
and is significant within the meaning of
Department of Transportation regulatory
policies and procedures (DOT Order
2100.5 dated May 22, 1980; 44 FR
11034, February 26, 1979), because the
subject of requirements for background
checks of prospective driver safety
performance history information
generated considerable public and
congressional interest. FMCSA
estimates the economic impact of this
rule will not exceed the annual $100
million threshold for economic
significance. The Office of Management
and Budget (OMB) reviewed the final
rule, Paperwork Reduction Act
submission, the regulatory evaluation,
and the regulatory flexibility analysis
associated with this action.
Under a following section of this rule
entitled ‘‘Regulatory Evaluation:
Summary of Benefits and Costs,’’ the
agency estimates the first-year costs to
implement this rule will amount to
approximately $15 million. Total
discounted costs over the 10-year
analysis period (2004–2013) will be
$113 million, using a discount rate of
seven percent. All these costs are
associated with the statutorily mandated
requirements of section 114 of the
Hazmat Act and section 4014 of TEA–
21. First-year benefits associated with
this rule are estimated at $7 million.
Total discounted direct benefits over the
10-year analysis period (2004–2013) are
estimated at $107 million. Total
discounted net benefits from
implementing this rule are estimated at
¥$6 million (without consideration of a
deterrence effect) or as high as $47

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million (with consideration of a
deterrence effect).
A key assumption used in the above
analysis involved the percentage of
newly available accidents for which
prospective employers would be able to
determine, or infer, that the truck driver
was at fault and therefore deny the
driver employment as a result. In the
analysis performed for the SNPRM, now
called scenario 1, it was estimated that
30% of the drivers are at fault, and from
those a total of 10% of driver applicants
would be denied employment. In this
final rule it is estimated from
preliminary data from the Large Truck
Crash Causation Study that 38.64% of
the drivers are at fault, and from those
in scenario 1 a total of 12.88% of driver
applicants would be denied
employment. Both the 10% in the
SNPRM and the 12.88% in this rule are
derived as one-third of the vehicle
accidents involving a large truck where
the truck driver is estimated to be at
fault.
For purposes of sensitivity analysis
perspective, FMCSA also presents a
scenario 2 in the regulatory analysis
where we assume the full 38.64 percent
of drivers at fault would be denied
employment by prospective employers
because the employer would be able to
determine, or infer, from the data that
the CMV driver was at fault in the
accident, and would choose to deny
employment to all. This new, more
aggressive assumption is presented in
an effort to provide readers with the
range of possible impacts, in light of the
inherent uncertainty regarding how
much new accident data will become
available to prospective employers and
exactly how they will use this data to
make hiring decisions. However, the
more aggressive scenario 2 estimates are
only presented for sensitivity analysis
perspective. FMCSA continues to cite
the original (now scenario 1) as the
primary analysis performed for this rule.
Under the scenario 2 assumption that
prospective employers will be able to
accurately determine, or infer, fault in
all the accident data involving drivers
applying for positions, and that all the
drivers who were at fault would be
denied employment as CMV drivers for
on average six-months, the costs would
remain the same, $113 million. But, the
first year benefits could be as high as
$24 million, and the total discounted
10-year benefits could be as high as
$406 million. This means the total
discounted net benefits under this
aggressive scenario 2 could be as high
as $294 million over the 10-year
analysis period (2004–2013).

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Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA),
as amended by the Small Business
Regulatory Enforcement and Fairness
Act (SBREFA), requires Federal agencies
to analyze the impact of rulemakings on
small entities, unless the agency
certifies the rule will not have a
significant economic impact on a
substantial number of small entities. In
response to SBA’s request for more
information on the economic impact of
this final rule upon small entities, and
the determination that this is considered
a significant rulemaking proposal, the
agency prepared a final regulatory
evaluation and the following Regulatory
Flexibility Analysis.
(1) A description of the reasons why
action by the agency is being
considered. Motor carriers must hire a
large number of drivers each year 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. Public concern regarding the
safety of commercial motor vehicles and
their operators has heightened
awareness of the almost non-existent
investigative driver safety performance
history information made available to
prospective motor carrier employers to
assist in making hiring decisions. If
prospective employers have access to
more information about a driver’s safety
performance history, it will enable
employers to make more informed
decisions regarding the relative safety
risk of applicants to operate CMVs.
With enactment of section 114 of the
HazMat Act, Congress directed revision
of the FMCSRs to specify the minimum
driver safety performance information a
prospective employer must investigate
from previous employers, and further
directed that previous employers now
must provide the specified information.
Additionally, the HazMat Act sets a 30day time limit for previous employers to
respond to the investigations, and
provides the driver with ‘‘* * * a
reasonable opportunity to review and
comment on the information’’ provided
by previous employers to the
prospective employer.
In response to industry concerns
about the legal liability which could
arise from providing information about
driver safety performance 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

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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 investigative records,
and to have them corrected or include
a rebuttal from the driver, is made
statutory. The Secretary is directed to
develop procedures for implementing
these new requirements as part of the
changes to § 391.23 previously
mandated by section 114 of the HazMat
Act.
(2) A succinct statement of the
objectives of, and legal basis for, the
rule. The legal bases for this final rule
are the Congressional directives
contained in section 114 of the HazMat
Act and section 4014 of TEA–21.
Congressional direction is to ensure
prospective motor carriers have access
to increased information about the
safety performance history of driver
applicants, including access to specified
investigative information from the
driver’s previous employers for the
preceding three years.
Regulations at §§ 391.23(a)(2) and (c)
currently require prospective employers
to investigate a driver’s employment
record from 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 the MCSIA for a Report
to Congress on the possibility of
requiring employers to report positive
results or refusals to be tested for
controlled substances. A copy of section
226 of MCSIA is included in the docket
for this rulemaking as document 40.
The objective of this final rulemaking
is to improve the quantity and quality

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of investigations made to previous
employers, especially the quantity,
quality and timeliness of driver safety
performance information provided to
prospective employers. This should
foster more informed hiring decisions
about the safety risks of potential new
driver employees, while affording
drivers the opportunity to review,
correct or rebut the accuracy of
information provided by previous
employers.
This final rule specifies minimum
information that must be investigated,
and specifies processes 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 lawsuits.
(3) A description of, and where
feasible, an estimate of the number of
small entities to which the rule will
apply. This rule will apply to all motor
carrier employers regulated by the
FMCSRs whose driver employees apply
to work for another motor carrier
operating CMVs in interstate commerce.
This includes small motor carriers,
many of which are in numerous
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 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 final rule at
approximately 403,000 annually. This
estimate is a function of three
components, including: (1) Annual
driver turnover within the industry, (2)
annual employment growth within the

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16701

industry, and (3) an increase in the
number of drivers required to fill
vacancies left by those denied
employment when this background
information becomes available to
prospective employers.
It is difficult to determine exactly how
many existing motor carriers will be
affected by this final rule, since it is not
known year-to-year how many
employers on average hire drivers.
However, it is known from the MCMIS
that there are more than 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, yet still having files
in 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
(less than $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 operational
characteristics of the private trucking
firms are generally similar to those of
the for-hire motor carriers. Using the 90percent estimate from for-hire motor
carriers to identify the small business
portion of the existing industry, FMCSA
estimates that 450,000 out of the
approximately 500,000 total existing
motor carriers could be defined as small
businesses. Also, we estimated that a
net 403,000 hiring decisions will be
affected by this final rule annually.
These 403,000 net annual hirings within
the industry represent 13 percent of the
total three million drivers currently
estimated in the regulatory evaluation to
be employed within the trucking
industry. To be conservative, we
assumed that 13 percent of existing
motor carriers will be filling the 13
percent of driver positions each year.
Using 13 percent of existing motor
carriers translates to 67,000 out of the
500,000 existing motor carriers that
would be prospective motor carriers
hiring drivers each year.
We conservatively assumed that these
67,000 hiring employers will bear the
full cost of the data retention and
reporting processes for the 403,000
drivers to be hired each year. This
includes the file searches, duplication,
and reporting costs incurred by previous
employers for providing the
information.

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Conversely, if instead we had
assumed previous employers would also
bear a portion of these costs, and we
assumed one previous employer for
each driver over the past three years,
then we would have had to divide
compliance costs by twice the 67,000
hiring carriers, i.e., 134,000 carriers.
However, to ensure we do not
underestimate the impact to small
employers, we have used the 67,000
estimate of hiring employers.
Total discounted compliance costs of
this final rule are estimated at $113

million over the 10-year analysis period
(2004–2013), resulting in an average
discounted annual cost of $11.3 million.
If we divide these average annual costs
by the 67,000 hiring companies
estimated to be hiring drivers within a
given year, the result is a total
compliance cost of roughly $169 per
motor carrier in the first year of this
rule’s 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
Number of firms/%
of total small firms

Revenue category ($1,000s)

<$100 .........................................................................................................
$100–$249.9 ..............................................................................................
$250–$499.9 ..............................................................................................
$500–$999.9 ..............................................................................................
$1,000–$2,499.9 ........................................................................................
$2,500–$4,999.9 ........................................................................................
$5,000–$9,999.9 ........................................................................................

1,487
8,715
5,687
4,890
4,819
2,414
1,407

(5)
(30)
(19)
(17)
(16)
(8)
(5)

Total ....................................................................................................

29,419

(100)

Average annual revenues
($1,000s)

Compliance
costs ($169),
as % of annual revenues

Average pretax profit margins, by revenue size
(in percent)

$67
160
356
710
1,580
3,490
7,000

0.25
0.11
0.05
0.02
0.01
<0.01
<0.01

9.5
9.5
9.5
9.5
2.8
2.9
3.5

Source: 1997 Economic Census, Sales Size of Firms, NAICS Categories 484121, 484122, 484210, and 484230 aggregated to SIC 4213.

We applied the average annual
regulatory compliance costs ($11.3
million) to the number of existing motor
carriers in the industry we anticipated
will be hiring drivers in a given year
(67,000). As seen in the above table, the
compliance costs of this final rule per
existing motor carrier ($169) represent
0.25 percent (or a little less than 3⁄10 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 category compliance costs
represent 0.11 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 righthand 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
will reduce, although not eliminate
average pre-tax profits for carriers in any
of the carrier revenue categories. The

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smallest revenue category in this table
(<$100,000 annual revenues), which
represents 5 percent of the firms in the
Economic Census table, will experience
an average reduction in pre-tax profit
margins of 2.6 percent (0.25/9.5 = 2.6%).
For the second smallest revenue
category ($100–249.9), which represents
30 percent of the small carriers in this
motor carrier category, pre-tax profit
margins are reduced by about 1.2
percent (0.11/9.5 = 1.2%). For the third
smallest revenue category, the annual
compliance costs associated with this
final rule are expected to reduce these
carriers’ average pre-tax profit margins
by 0.5 percent (0.05/9.5 = 0.5%).
Several things about this data should
be noted. The above figures for
compliance costs and profit margins by
revenue category represent averages of
the estimated impact of this rule to
small motor carriers. Impacts to
particular subgroups of small motor
carriers, such as those with annual
profits that fall within the lowest
quartile of carriers in each revenue
category, may be more significant than
those at the median. For example,
FMCSA is aware that a number of motor
carriers go out of business every year. At
least some percentage of those likely are
for financial reasons.

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Recognizing that the RMA data used
here is only for firms that applied for
commercial bank loans (presumably the
more profitable firms in their revenue
category in order to qualify for loans)
and represents only one to five percent,
generally speaking, of those motor
carriers identified in the 1997 Economic
Census, FMCSA did not feel confident
in breaking out the RMA profit margin
data into individual quartiles. As such,
we have reported the anticipated
impacts using an average compliance
cost per carrier and average profit
margins for carriers in each revenue
category.
(4) A description of the proposed
reporting, recordkeeping and other
compliance requirements of the 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 DOT regulated employers of the
previous three years for alcohol and
controlled substances, and all motor
carriers for accident information, to
prospective motor carrier employers. In
response to prospective employees who
assert their right to disagree with the

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investigative driver safety performance
data reported by that previous
employer, previous employers are also
required either to correct the data per
the driver’s assertion, or include the
driver’s rebuttal with their data.
In the case of alcohol and controlled
substances, all previous employers or
their agents subject to DOT alcohol and
controlled substances regulations 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 will 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 previous
employer data, and two years less than
the five-year retention of positive results
or refusals to test.
3. Information indicating whether the
driver failed to undertake or complete a
rehabilitation referral prescribed by a
substance abuse professional within the
previous three years, but only if that
information is recorded with the
responding previous employer. Previous
employers will 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
will not be required to seek alcohol and
controlled substances data they are not
already required to retain by part 382.
5. Information, only from previous
employing motor carriers, indicating
whether the driver was involved in any
accidents as defined in § 390.15.
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
final rulemaking. This final rule will
enhance the ability of FMCSA and its
agents to take enforcement action if a
previous employer does not record and
provide the information required within
the specified time.
Motor carriers are already required to
respond to alcohol and controlled

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substances requests under part 382.
However, requests for that data can be
the last information requested in the
screening process. This is because of the
requirement for a signed authorization
from the driver applicant to release any
such data, and in subsectors such as
truckload, this generally occurs only for
that portion of drivers still under
consideration for employment, based on
initial screening.
All motor carriers, and all DOT
regulated entities for alcohol and
controlled substances, for the previous
three years, will now be required by
conforming language in § 391.23 to
provide the specified minimum
investigative safety performance history
data. That data, minus the alcohol and
controlled substances data, will be
requested routinely for many driver
applicants from all previous employers
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 focus group
meetings 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. This
means that employers operating more as
employers of entry-level drivers, will be
required to systematically provide
investigative information, but will not
get much benefit of receiving such
investigative data from other previous
employers. FMCSA estimates this to be
24 percent of the drivers under scenario
1, and 30 percent of the drivers under
scenario 2.
Recordkeeping. It is a largely accepted
motor carrier practice that alcohol and
controlled substance information is kept
separately from the driver qualification
file. This is a practical arrangement that
enables employers to defend that the
data is adequately secured and access to
it is controlled, in compliance with the
recordkeeping requirements of parts 40
and 382.
Employers are currently required by
§ 391.23(c) to keep prior employer
furnished investigative information in
the driver qualification file. Section
4014 of TEA–21, codified at 49 U.S.C.
508, restricts usage of previous
employer investigative data to just the
hiring decision. Therefore, this rule

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16703

changes the specification of where
previous employer investigative
information is kept to now 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 two-years of
prior alcohol and controlled substances
data. That function requires designation
of a person who has the controlled
access to that data. The additional task
of reporting accident data could be
another 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 rule. The Fair Credit Reporting Act
specifies procedures that must be
followed by consumer reporting
agencies when providing consumer
reports. Motor carriers and their agents
are consumer reporting agencies when
providing information on drivers’ safety
records to prospective motor carrier
employers, as required by this rule. The
FCRA specifically authorizes the
provision of information ‘‘for the
purpose of evaluating a consumer for
employment, promotion, reassignment
or retention as an employee’’ [15 U.S.C.
1681a(h)]. The purpose of this rule is
therefore consistent with the FCRA.
Furthermore, the rule is drafted
following the model of the FCRA.
FMCSA believes there is no duplication,
overlap, or conflict with the FCRA or
with any other Federal statute or rule.’’
(6) A description of any significant
alternatives to the rule which
accomplish the stated objectives of
applicable statutes and which minimize
any significant economic impact of the
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 to
previous employers, the required
provision of that data, and use of that
data in the hiring decision process. The
FMCSA published a SNPRM on July 17,
2003 (68 FR 42339) incorporating
additional prescriptive requirements
contained in section 4014 of TEA–21,
and to concerns expressed by various
commenters, including the SBA to the
NPRM. This final rule responds to
concerns expressed in response to the
SNPRM. FMCSA continues to believe
that the agency does not have the
latitude to propose alternatives other
than discussed in this rule, because of

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the prescriptiveness of the HazMat Act
and TEA–21.

Interference with Constitutionally
Protected Property Rights.

Unfunded Mandates Reform Act of 1995

Executive Order 13132 (Federalism)

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 in this
rulemaking will not have an impact of
$100 million or more in any one year.

As stated in other parts of this final
rule, Congress first mandated details
about checking driver safety
performance history in section 114 of
the HazMat Act. It directed the
Secretary to amend the FMCSRs to
specify the minimum driver safety
performance history information that a
motor carrier must investigate from the
motor carrier employers and other DOT
regulated employers for the preceding
three years, and to require those
previous employers to provide that data
to the requesting motor carrier within 30
days.
Comments to the docket in response
to the 1996 NPRM expressed great
concern that the agency’s proposals in
the 1996 NPRM could subject them to
considerable litigation and expense by
drivers denied employment based on
the proposed safety performance history
data. Congress responded to those
concerns by implementing section 4014
of TEA–21,3 by granting limited liability
to employers and agents furnishing and
using this information by preempting
State and local laws and regulations
creating such liability. TEA–21 also
directed FMCSA to include provisions
implementing this limited liability, and
driver protection rights, in a revision to
the previously issued 1996 NPRM. The
intent of the Act is to ‘‘* * * 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.’’
In the SNPRM, the FMCSA proposed
a process similar to what is specified
under the FCRA for protecting a driver’s
rights when investigating previous
employer background information. The
SNPRM also proposed processes 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.

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

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3 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 knowingly
provided incorrect information.

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Because the preemption requirement
set forth in the SNPRM was established
by TEA–21, this was the first time this
preemption provision was set forth as a
proposed regulatory change.
Consequently, the SNPRM sought
public comments on possible
compliance costs or preemption
implications from elected State and
local government officials or their
representatives on whether there may be
any major concerns about the proposed
preemption of State and local law and
regulations for these Federally protected
interests. FMCSA did not receive any
comments on this issue.
Accordingly, FMCSA determined that
implementation of this rule change, in
conformance with the specification
contained at 49 U.S.C. 508(c), will not
add substantial additional compliance
costs nor preemption burdens to States
or local subdivisions. We also
determined that these changes will have
no effect on the State or local
subdivisions’ ability to discharge
traditional governmental functions.
FMCSA has analyzed this action in
accordance with the principles and
criteria contained in Executive Order
13132, dated August 4, 1999, and
determined that there are not sufficient
federalism implications on States that
would limit the policy discretion of the
States.
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 OMB for each collection of
information they conduct, sponsor, or
require through regulations. FMCSA has
determined that the changes in this final
rule will 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),

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approved at 573,490 burden hours
through August 31, 2004.
There is no effect on the IC burdens
covered by Controlled Substances and
Alcohol Use and Testing, OMB Control
No. 2126–0012. The IC burdens for
investigating and reporting
requirements are addressed in the IC
Driver Qualification Files, OMB Control
No. 2126–0004.
The effect of this final rule on the IC
burdens of Accident Recordkeeping
Requirements, OMB Control No. 2126–
0009 is limited to the additional costs
for maintaining the accident records for
two additional years. FMCSA estimates
maintaining data for two additional
years will result in an additional
252,000 records. The cost for keeping
these records is estimated at $0.15 per
record per year, derived from
Association of Records Management
Activities (ARMA) costs.
FMCSA’s estimate of 252,000
additional records is derived as follows.
The FMCSA estimates there are
approximately 155,000 accidents (as
defined in § 390.5 of the FMCSRs)
annually involving trucks plus an
additional 17,000 accidents involving
buses (source: General Estimate System,
p. 28). The issue is to estimate how
many of these are subject to FMCSA
regulations that require the motor
carrier to retain accident information in
the accident register, pursuant to
§ 390.15(b)(1).
FMCSA estimates that approximately
80 percent of these accidents involve
trucks and buses operated by interstate
motor carriers. Additionally, most buses
involved in crashes are school or transit
buses and are not subject to this
recordkeeping requirement. FMCSA
estimates about 85 percent of those
interstate bus accidents are not subject
to accident register retention
requirements.
Thus, the number of accidents
required by § 390.15(b)(1) to be recorded
on accident registers is estimated at:
(0.80 × 155,000) = 124,000 interstate
truck accidents that must be in
accident register.
(0.80 × 0.15 × 17,000) = 2,040 interstate
bus accidents and regulated by
FMCSA.
Total accidents that must be placed in
motor carriers’ accident registers =
126,000 (rounded to the nearest
thousand).
Thus, the cost for maintaining this
accident information an additional two
years is calculated as $37,800 (126,000
accidents per year × 2 years × $0.15 per
record = $37,800.)
There are significant adjustments and
changes caused by this final rule

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concerning IC burdens of driver safety
performance history records covered by
Driver Qualification Files, OMB Control
No. 2126–0004. These files are now
stored according to § 391.23, called the
Driver Qualification file, and § 391.53,
called the Driver Investigation History
file. The latter contains information that
must be secured and controlled
regarding who can see the information
and when.
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 here. The
agency continues to explore methods of
more precisely determining the number
of drivers that could be affected by
FMCSA regulations.
Number of Drivers Screened
Previous information collections have
estimated there are burden hours
associated with 839,596 driver job
openings each year. That represents a
national average turnover rate of 13
percent for the 6,458,430 truck driver
positions. However, it is also well
known that some sectors of the truck
driving industry are characterized by a
high driver turnover rate, e.g., truckload.
Comments to the docket for the 1996
NPRM describe various driver-screening
processes used by trucking companies
to fill these driver positions. In the 2003
SNPRM, FMCSA specifically requested
comments addressing on average how
many applicants are screened per job
opening, or what percentage of
applicants are denied employment
using current screening practices.
Comments to the docket for the SNPRM
supported the premise put forward in
the preamble that on average more than
one applicant is screened for each job.
However, there was no clear agreement
on what is a representative average
number of applicants per job in the
many different sub-sectors and
industries covered by the FMCSRs.
ATA made inquiries to some of its
members and submitted to the docket
that the weighted mean of their sample
is 80.1 percent of driver applicants are
denied employment. However, TCA and
others in the truckload sector point out
that in their portion of the industry they

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perceive the labor market to be tight,
i.e., a shortage of qualified drivers. CTS
Con-Way Transportation Services points
out that, ‘‘If employers need drivers and
they are in short supply, [the motor
carriers] will hire who is available.’’
These comments imply there could be
less than an 80.1 percent denial rate in
their subsector of the trucking industry.
Comments to the docket for the NPRM
and the SNPRM make it clear that
different employers covered by the
FMCSRs use different screening
processes. Some employers physically
see and screen the driver on criteria
other than driving (because driving is an
ancillary duty) before deciding to
perform the inquiries and investigations
required by § 391.23. On the other hand,
some motor carriers such as in the
truckload subsector begin the inquiry
and investigation process immediately
for all driver applicants based on phone
or other electronic applications for each
applicant. (See document 36 in this
docket; record of meeting with DAC
Services, Inc.)
AT&T points out they currently
perform a substantial screening of
potential employees on the company job
criteria that forms the major portion of
job responsibilities for their company. It
is only for the select subset of
applicants, after being successfully
identified as someone the company
would hire based on the skills they
possess, that the inquiries and
investigations required by § 391.23 are
performed. This is because driving a
CMV is a minor portion of their job
responsibilities and would only prevent
the applicant from performing that
function, not qualify them to perform
that function. Thus, the only drivers
that companies such as AT&T want to
screen according to the requirements of
§ 391.23, are drivers who have invested
considerably in acquiring skills
sufficient to qualify to work for a
company in that trade, performing
duties that also require them to drive a
CMV covered by the FMCSRs.
A similar pattern applies to a number
of employers covered by the FMCSRs,
but whose primary business requires the
employee to have skills in addition to
being a driver. All such employees have
much more at stake to preserve their
professions, and have much more to
lose if they illegally use alcohol or
controlled substances or are involved in
numerous accidents. The net result is
that drivers who pass the technical
skills screening to be considered for
hiring by such firms also covered by the
FMCSRs, very likely have considerably
less than an 80.1 percent denial rate
based on subsequent screening to

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qualify as a truck driver for their
ancillary job responsibilities.
Examples of skills or trades where
many CMV drivers are subject to the
FMCSRs include the following
industrial classifications: 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.
There is agreement between the
agency, as expressed in the preamble
text of the SNPRM, and commenters to
the docket in response to this question
in the SNPRM. Namely, the national
average is more than one applicant
screened pursuant to these regulations
for each job opening. But, there is no
clear agreement on how many. While
the estimate of 5 applicants per hire
presented by ATA may be
representative of their membership, it
appears very excessive for numerous
other industries also covered by the
FMCSRs. As a result, FMCSA is using
the estimate that on a national average
across all industries covered by the
FMCSRs, there are 3 applicants
screened pursuant to these regulations
for each job, i.e., two denials and one
hire. Clearly, the discussion indicates
the number will be higher in some
subsectors and industries, and lower in
others.
Experienced Versus Inexperienced
There is an additional aspect of this
screening. Namely, what percentage of
drivers screened will be experienced
drivers with previous employer safety
performance history information that
can be investigated? What percentage
are inexperienced or new entrant
drivers with no previous employers to
investigate? These numbers are derived
from the estimates given in the 1997
Gallup study for the ATA Foundation.
Based on this final rule establishing a
new requirement for previous
employers to report driver safety
performance history information,
drivers will no longer be able to hide
their safety performance history
information by jumping from one motor
carrier to another. Thus, drivers with
poor safety records will be denied
employment with a new motor carrier

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employer, and their safety record will
accumulate enough to cause the current
employer to remove them as part of the
§ 391.25 required annual review. As a
result, prospective motor carriers will
have a much stronger basis for knowing
whether an applicant with previous
driving experience is a safety risk.
Adjustments and Changes to Estimated
Burden
Adjusting the estimate of number of
applicants screened per job opening
from one to three requires a substantial
adjustment in the existing estimated
burden for performing the already
existing regulatory requirements for
inquiries and investigations. In
addition, it also requires a substantial
revision to the estimates presented in
the SNPRM for changes in new burdens
created by this final rule.
The adjustments for the existing
regulatory IC burden are entirely in the
First Element of the existing information
collection requirements. These are
explained in detail below under the
First Element of the IC.
Both small and large changes
(increases in burdens) are created in the
same First Element, and large changes
or increases are created in the new
Third Element. These are explained in
detail below under the First and Third
Elements of this IC.
A summary of all adjustments and
changes is presented at the end of this
section along with the existing approved
burdens.
Structure of Elements
The currently-approved Driver
Qualification Files information
collection can be broken down into two
elements: (1) § 391.23, addressing the
burdens of prospective and previous
employers and driver applicants during
the hiring process, and (2) § 391.25,
addressing the burdens related to
carriers and drivers who are currently
employed (e.g., annual review). This
rule requires revisions to the first and
leaves the second unchanged. In
addition, FMCSA is creating a new third
element—to address new burdens
imposed by the rule on the previous and
prospective employers of drivers. The
resulting three elements of this
information collection will 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 related to the hiring process.
First Element of IC. The changes to
the first item—the hiring process—
address the specific types and
timeframes of driver safety performance

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history that must be requested (includes
accident data).
The burdens required for the existing
driver application process must be
adjusted substantially. This is because
FMCSA now assumes there are three
applicants per job opening, not one. On
a national average, the prospective
motor carrier denies two out of three
applicants employment as a driver as
part of the existing screening processes.
Plus, for experienced drivers on average
there is more than one previous
employer that must be investigated.
The number of inquiries for driver
records that prospective employers must
make increases from the SNPRM
estimate of 839,596 to 2,641,788
applicants. Using the Gallup estimate of
just under 80 percent of driver hires will
come from existing drivers, we initially
assume approximately 80 percent of the
839,596 job openings, or 666,677, would
be filled by experienced drivers. For
experienced drivers with safety
performance history information we
estimated there is a ratio of 3 drivers
screened for each job opening, meaning
there will be 2,000,031 experienced
driver applicants (666,677 × 3 =
2,000,031).
The number of new entrant driver
applications is calculated as the initial
approximately twenty percent of jobs,
172,919 × 3 applicants, or 518,757. To
this is added the number of new entrant
applications to fill the 41,000 jobs that
were not filled by experienced drivers
because of the new safety performance
history data. This is 41,000 × 3 =
123,000. Thus, the total number of
applications by new entrants is 518,757
+ 123,000 = 641,757. And, the total
number of applications by all drivers is
2,000,031 + 641,757 = 2,641,788.
The total burden hours for drivers
making applications for a job increases
from 41,981 to 132,090 hours. The
burden estimate for the application
process remains at 2 additional minutes
for the driver to furnish the motor
carrier unique information and 1 minute
for the motor carrier to review that
unique information. Based on the
estimation of 2,641,788 applications, the
burden is 132,090 hours (2,641,788
applications × 3 minutes/60 minutes/
hour = 132,090 hours rounded to the
nearest hour).
In order to distinguish the
adjustments from the changes to the
burden, we separated analysis of the
positions for which high risk drivers
will be denied employment because of
the new safety performance history
information.
Adjustment. The adjustment to the
burden for this element is caused by the
adjustment in the assumed number of

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drivers that must be screened for each
job opening. Experienced driver
applications are calculated as 2,000,031
(666,677 × 3 applicants per job).
Inexperienced driver applications make
up the difference, calculated as 518,757
[(839,596 ¥ 666,677) × 3]. This totals
2,518,788 applicants (2,000,031 +
518,757 = 2,518,788). The adjusted
burden hours for this element thus are
125,940 hours (2,518,788 applications ×
3 minutes/60 minutes/hour = 125,940
rounded).
Change. The change to the burden for
this element is caused by the high risk
experienced drivers who will be denied
employment. We estimated that at
41,000 positions. These will be filled by
new entrant drivers. The change in
burden is calculated as 6,150 hours
(41,000 positions × 3 applicants/
positions × 3 minutes/60 min/hr = 6,150
hours).
The 41,000 denials are calculated on
the following logic. Denials because of
new accident data is calculated as
(0.148 annual accidents per driver × 3
years × 0.1288 percent of drivers denied
employment based on at-fault accident
data × 666,677 experienced job openings
for drivers coming from DOT- and
FMCSA-regulated previous employers
required to provide history = 38,125
drivers denied employment based on
new accident data.)
Denials because of an additional year
of alcohol and controlled substances
positive tests or refusals to test are
calculated as: 0.001 percent of the
experienced drivers (666,677) do not
pass because they test positive and
0.015 of them fail because they refuse to
test. This equals to a total of 10,666.84
experienced drivers who do not pass or
refuse to test for alcohol and controlled
substances. FMCSA estimates that 25
percent of these 10,666.84 experienced
drivers (or 2,667 drivers) would be
denied employment because of the
additional year of alcohol and
controlled substances positive tests or
refusals to test ([0.0001 × 666,677 =
666.68] + [0.015 × 666,677 = 10,000.16]
= 0.25 × 10,666.84 = 2,667 rounded).
Rounded to the nearest thousand, this
represents 41,000 additional job
openings that will be involved in the
hiring process. For purposes of not over
estimating the benefits associated with
this rule, FMCSA assumes the
applicants for these 41,000 job openings
will be new entrants from outside the
existing industry without any safety
performance history information on file.
The burden for obtaining the driver
records and analyzing them under the
current regulations increases from
69,966 to 209,899 hours, an adjustment
of 139,933 hours. The burden estimates

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for obtaining the driving record remains
at 4 minutes, and for reviewing at 1
minute. Based on the adjusted
estimation of 2,518,788 inquiries, the
burden is 209,899 hours (2,518,788
inquiries × 5 minutes/60 minutes/hour
= 209,899 hours).
The additional 41,000 job openings
because of the denials (based on the
driver safety performance history
information) require the motor carrier to
obtain and review the MVR for each of
the 123,000 applicants. This is a change
of an additional 10,250 hours (41,000
jobs × 3 applicants × 5 minutes to obtain
and review/60 minutes/hour = 10,250
hours).
For purposes of this information
collection, the agency estimates that, on
average, at a 13 percent annual turnover
rate, each applicant will have had 1.39
employers in the past 3 years. If all
applicants were investigated, the
number of investigation requests for
safety performance history information
would be greater than 3,501,115 (1.39
previous employers × 839,596 job
openings × 3 applicants = 3,501,115).
However, the Gallup study for the
ATA Foundation estimated in 1997 that
only approximately 80% of the jobs will
be filled with experienced drivers, i.e.,
those who worked for previous
employers regulated by DOT or FMCSA.
Upon implementation of this final rule,
that percentage of jobs to be filled with
experienced drivers decreases to about
75%. This is because of the experienced
drivers who will be denied employment
because of this final rule. Therefore, the
number of employers who will be
investigated for experienced drivers is
calculated at 2,780,043 (1.39 previous
employers × 666,677 experienced job
openings × 3 applicants = 2,780,043).
The burden for investigation of
previous employers under the current
regulations increases from 139,933 to
463,341 hours, an adjustment of 323,408
hours. The burden estimate for
investigating previous employers
remains at 10 minutes per investigation.
Based on the assumption of 2,000,031
applicants, the burden is 463,341 hours
(1.39 previous employers × 2,000,031
applicants × 10 minutes/60 minutes/
hour = 463,341 hours).
There is no additional burden for
investigating previous employers of new
entrant applicants for these jobs because
we assumed these applicants come from
jobs that are outside the FMCSA or any
other DOT agency’s regulatory
authority. Thus, there are no regulated
previous employers to be investigated
nor any that are required to provide
safety performance history information.
For most drivers, there will be no
accident or alcohol and controlled

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16707

substances data to report. For those
drivers, the amount of time the
prospective employer must spend
reviewing the data obtained will be only
seconds. However, for those drivers who
have any such data reported to the
prospective employer, substantial time
may be spent reviewing and evaluating
that data to determine if that driver is
a reasonable risk to hire. The majority
of this review time thus will be spent on
the small number of drivers for whom
accident and/or alcohol or controlled
substance information is reported. In
order to turn this into a usable metric,
FMCSA assumes that on average
prospective employers will spend 10
minutes evaluating the additional safety
performance history data made available
to them. FMCSA believes this is likely
a high estimate, and therefore does not
understate the total burden that will be
placed on motor carriers. This leads to
a burden change of an estimated
additional 463,341 burden hours
(2,780,043 investigations × 10 minutes/
60 minutes/hour = 463,341 hours).
This rule requires prospective motor
carriers to notify driver applicants that
they have the right to be provided a
copy of the safety performance history
data provided to the prospective motor
carrier by previous employers for the
driver applicant to review. If the driver
applicant wants to receive a copy, the
driver must request the copy in writing.
If the driver wants the previous
employer to correct the data, the driver
applicant must request the previous
employer to correct the data, or to
include a rebuttal furnished by the
driver. The majority of these
notifications would be made via a
statement on the job application;
therefore, we are not assigning an
additional information collection
burden for this notification. FMCSA
requested comments in the SNPRM on
whether there might be any significant
burden in sectors of the industry using
telephone job application processes. No
comments specific to this question were
received. One commenter said it would
be a major imposition for them to create
new employment forms to include such
a notification. Other comments asked
FMCSA to provide a template statement
so they could easily incorporate such a
notification. In general, it appears most
carriers feel this could be easily
accommodated within their
employment applications. Thus, there is
0 burden hours assumed for this
function.
In many cases, drivers have an idea of
what type of safety performance history
they have on file with their previous
employers. Thus, although FMCSA does
not have any actual data, it seems

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unlikely every driver will go through
the trouble to submit a request in
writing to obtain the information
provided to the prospective employer.
FMCSA assumes that one-half of the
experienced driver applicants
investigated who are not hired would
request to receive the previous employer
information provided to the prospective
employer. We assume 666,677 × 3 =
2,000,031 experienced applicants of
which (666,677 ¥ 41,000 =) 625,677 are
hired. This means (2,000,031 ¥ 625,677
=) 1,374,354 experienced driver
applicants are not hired. One half of
these, or 687,177 drivers, will request
copies of the safety performance
histories furnished by previous DOT- or
FMCSA-regulated employers.
Therefore, the change in the
additional burden estimate for
prospective employers to provide a copy
of the previous employer information to
the drivers who choose to request it is
57,265 burden hours [687,177 drivers ×
5 minutes for prospective employers to
provide the data to each of those
drivers, divided by 60 minutes = 57,265
hours].
Therefore, the total burden to notify of
rights and to provide requested copies
of histories is 57,265 hours (0 + 57,265
= 57,265 hours).
Thus, the total annual burden
associated with the first element is
1,336,186 hours (125,940 hours + 6,150
hours + 209,899 hours + 10,250 hours
+ 463,341 hours + 463,341 hours +
57,265 hours = 1,336,186 hours).
Second Element of IC. The second
element of the Driver Qualification
Files—annual review—would be
unaffected. It remains at 187,294 burden
hours for obtaining the list or
certification of annual violations;
468,236 burden hours for the motor
carrier to obtain and review the MVR;
and 37,674 burden hours for additional
or duplicate recordkeeping associated
with using multi-employer drivers.
Thus, the total annual burden
associated with the second element
remains at 693,204 hours (187,294 hours
+ 468,236 hours + 37,674 hours =
693,204 hours).
Third Element of IC. The third
element of this information collection—
related to the hiring process—addresses
the substantial new burdens created due
to the changes made by this final rule.
In the past, previous employers were
not required to provide safety
performance history on their former
employees. However, this rule requires
all previous employers to provide driver
safety performance history data for the
3 year period preceding the date of the

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request. The annual change in IC burden
for previous employers reporting this
information is estimated to be 231,670
burden hours [2,780,043 investigations
× 5 minutes, divided by 60 minutes =
231,670 hours].
This rule also establishes a new right
for former drivers to request correction
or rebut employment data supplied by
previous employers to prospective
employers. Prospective employers are
required to provide the driver applicant
with copies of the information it
receives from the previous employer. In
turn the previous employer is required
to: (1) Provide the past employee/driver
the opportunity to request correction;
(2) review such a request, if submitted;
(3) correct records, if persuaded by the
driver’s request; (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 (6) send (a) the revised
record or the rebuttal to the prospective
employer, and (b) the employment
history with the appended rebuttal
when requested in the future by any
subsequent prospective employer.
If a driver wishes to pursue getting a
previous employer to correct their
previous driver safety performance
history data, or to prepare a quality
rebuttal for that employer to include
with the safety performance history
data, the driver will have to commit a
considerable amount of time and effort.
FMCSA estimates that as 2 hours. As a
result, FMCSA believes only a small
percentage of such drivers denied
employment will decide it is worth the
effort. The agency estimates that 10
percent of the drivers requesting to see
previous employer information would
choose to expend the effort to protest
their driver safety performance history
provided by former employers. Thus,
68,178 (687,177 × 0.10) drivers would
actually request corrections or submit
rebuttals. The FMCSA further estimates
that on average it would take the
previous employer 2 hours to address
and respond to such request for
correction or rebuttal. Therefore, the
change in burden estimate for this
activity is 272,712 hours [(68,178 × 2
hours per protesting driver = 136,356
hours) + (68,178 hours × 2 hours per
previous employer = 136,356 hours) =
272,712 hours].
The total change in annual burden
caused by this rule associated with this
third IC item is 504,382 hours [231,670
hours (burden associated with previous
employers providing safety performance
history) + 272,712 hours (burden

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associated with rebuttals/protests) =
504,712 hours].
Summary
Accordingly, Table 2 estimates that
the total burden adjustment for the
Driver Qualification Files information
collection associated with the revised
number of driver applicants per job
opening is 547,300 hours [799,180 hours
is the total adjusted burden for these
three activities: 125,940 hours
(application) + 209,899 hours (request
MVR and review) + 463,341 hours
(request/investigate previous employers
information) ¥ the currently approved
burden of 251,880 hours for the same
activities: 41,981 hours (application) +
69,966 hours (request MVR and review)
+ 139,933 hours (request/investigate
previous employers information) = an
adjustment of 547,300 hours].
The amount of current burden for the
annual review remains the same at
693,204 hours [187,294 hours (list or
certify violations) + 468,236 hours
(annual review of the driving record) +
37,674 hours (multi-employer drivers) =
693,204 hours].
The total change or new IC burden
hours caused by this rule is estimated as
1,041,388 hours [463,341 hours (review/
evaluate data received) + 57,265 hours
(notification and driver rights to review
data received) + 6,150 hours (for the
additional 41,000 jobs—41,000 × 3
applicants—that will need to go through
the application hiring process) + 10,250
hours (for the additional 41,000 jobs—
41,000 × 3 applicants—that need to have
their MVRs obtained and reviewed by
prospective employers) + 231,670 hours
(previous employers providing 3 years
of safety performance history) + 272,712
hours (duties of previous employers and
drivers associated with drivers who
rebut and protest employment history) =
1,041,388 hours].
A more detailed summary of the
adjusted burden and changes from new
IC burden requirements is provided in
the Paperwork Reporting Act
Supporting Statement.
You may submit comments on the
information collection burden
addressed by this final rule to the OMB.
The OMB must receive your comments
by April 29, 2004. You must mail or
hand deliver your comments to:
Attention: Desk Officer for the
Department of Transportation, Docket
Library, Office of Information and
Regulatory Affairs, Office of
Management and Budget, Room 10102,
725 17th Street, NW., Washington, DC
20503.

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Federal Register / Vol. 69, No. 61 / Tuesday, March 30, 2004 / Rules and Regulations

Activities

Currently approved burdens

Continuing
burden hours

Adjusted burden hours

16709
Changed burden hours

Application .......................................................................................................
Additional 41,000 drivers application ...............................................................
Request MVR and review ................................................................................
Request 41,00 Additional MVRs and review ...................................................
Request/investigate previous employers information ......................................
Review previous employer information received .............................................
Notify driver of rights and provide info from previous employer to drivers requesting copy to review ...............................................................................
List or certification of violations .......................................................................
Annually obtain and review driving record ......................................................
Multi-employer drivers ......................................................................................
Providing 3 years of safety performance history .............................................
Driver rebuttals ................................................................................................

41,981
........................
69,966
........................
139,933
........................

........................
........................
........................
........................
........................
........................

125,940
........................
209,899
........................
463,341
........................

........................
187,294
468,236
37,674
........................
........................

........................
187,294
468,236
37,674
........................
........................

........................
........................
........................
........................
........................
........................

231,670
272,712

Sub-Totals ................................................................................................

........................

693,204

799,180

1,041,388

Grand Totals ......................................................................................

945,084

........................

........................

2,533,772

National Environmental Policy Act
The agency analyzed this final rule for
the purpose of the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321 et seq.) and
determined under our environmental
procedures Order 5610.1 (published in
the March 1, 2004 Federal Register at 69
FR 9680 with an effective date of March
30, 2004), that this action is
categorically excluded (CE) under
Appendix 2, paragraph 6.d of the Order
from further environmental
documentation. That CE relates to
establishing regulations and actions
taken pursuant to these regulations that
concern the training, qualifying,
licensing, certifying, and managing of
personnel. In addition, the agency
believes that the action includes no
extraordinary circumstances that would
have any effect on the quality of the
environment. Thus, the action does not
require an environmental assessment or
an environmental impact statement.
We have also analyzed this rule under
the Clean Air Act, as amended (CAA)
section 176(c), (42 U.S.C. 7401 et seq.)
and implementing regulations
promulgated by the Environmental
Protection Agency. Approval of this
action is exempt from the CAA’s
General Conformity requirement since it
involves policy development and civil
enforcement activities, such as,
investigations, inspections,
examinations, and the training of law
enforcement personnel. See 40 CFR
93.153(c)(2). It will not result in any
emissions increase nor will it have any
potential to result in emissions that are
above the general conformity rule’s de
minimis emission threshold levels.
Moreover, it is reasonably foreseeable
that the rule change will not increase
total CMV mileage, change the routing
of CMVs, how CMVs operate, or the

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CMV fleet-mix of motor carriers. This
action merely continues requiring each
motor carrier to inquire into the driving
record and investigate the previous
safety performance history of each
prospective new driver, and establishes
a requirement, including driver rights,
for previous DOT and FMCSA regulated
employers to provide this safety
performance history to improve CMV
safety on our nation’s highways.
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 new costs created by this
final rule involve previous employers
providing and prospective motor
carriers reviewing driver safety
performance history data for use in
hiring decisions, and dealing with
driver rights to request correction or
rebut the data. The specific types of new
driver safety performance data include
providing driver accident, alcohol/
controlled substance positive test results

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6,150
........................
10,250
463,341
57,265

or refusals to be tested, and any
rehabilitation program data the previous
employer may have.
Specific new costs to previous
employers include reporting this
specified investigative data to all
prospective motor carrier employers of
drivers for three years after a driver
leaves their employ, and dealing with
any of their previous drivers that
request correction or inclusion of a
rebuttal to the safety performance
history data the previous employer
reports. Current regulations require
motor carriers to collect and retain
accident data for one year on their
drivers. This rule requires retaining
accident data for an additional two
years on each of its drivers.
Before this there was no requirement
for previous motor carriers to report
accident information to prospective
motor carrier employers. This rule
requires such reporting. Additionally,
previous employers are required to
report an additional year of positive
alcohol/controlled substances tests (and
refusals to test) and any rehabilitation
program data they may have to
prospective motor carriers, i.e., threeyears in lieu of the two years of data
currently required by existing
regulations.
Previous employers are already
required by parts 40 and 382 to report
on driver positive tests or refusals to be
tested regarding alcohol and controlled
substances use, as well as whether any
such driver completed the return to
duty requirements (if the previous
employer has that information) within
the preceding two years. This rule adds
a conforming requirement to the
§ 391.23 investigation provision that
previous employers must report the
alcohol and controlled substances
information as part of the safety

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performance information, plus increases
the reporting period for this data from
two to three years. (Previous employers
are already required to retain this data
for at least three years.)
Specific costs to prospective
employers include reviewing all
responses and any driver accident and
alcohol/controlled substances data
received from previous employers and
using that data in hiring decisions.
Current regulations require prospective
employers to inquire to obtain driver
Motor Vehicle Record(s) (MVRs) from
appropriate States and to investigate
previous motor carriers for the
preceding three years.
As explained in the SNPRM, this final
rule relies on the interpretation that
previous employers cannot make
receiving a fee for providing this
information a precondition of releasing
the minimum driver safety performance
history information within the specified
maximum response period. Not
withstanding that previous employers
can set a fee and ultimately enforce
collection of that fee by going to court,
many employers are unlikely to enforce
collection because they are small
entities with limited resources. Thus,
they could wind up not receiving
reimbursement for their cost of
providing the safety performance
history information. On the other hand,
in some segments, at least some of these
costs could be relatively equally shared,
i.e., many employers will get value from
investigations to other employers as
well as costs from providing the
information to others.
This final rule reasserts the position
presented in the SNPRM, namely, these
costs are not always equally shared. (See
document 41 in the docket for this rule.)
Some firms hire new entrant drivers
who systematically leave those
employers to work for firms that require
several years of experience before they
will hire a driver. This analysis
estimates that as 24 percent in scenario
1, and 30 percent in scenario 2. These
distributional effects are relevant to SBA
concerns about small businesses, and
are addressed in other sections of this
final rule, particularly the Regulatory
Flexibility Act analysis and the
Paperwork Reduction Act analysis.
However, who incurs these costs is not
directly important to the estimation of
total costs of this rule addressed in this
section, since they represent transfer
costs among employers.
The discussion that follows is a
summary of the costs and benefits
associated with this rule. For a complete
discussion of the data used,
assumptions made, and calculations
performed for this analysis, the reader is

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referred to the docket, where a copy of
the full regulatory evaluation report for
this final rule is found as document 86.
The summary of costs associated with
this rule is presented as Table 3.

information regarding ‘‘contributing
factors’’ to an accident.

Estimating Percentage of Drivers at Fault
The SNPRM used the estimate that 30
percent of accidents a truck driver is
involved in could be attributed as the
TABLE 3.—SUMMARY OF COSTS,
2004–2013, IN MILLIONS OF DOLLARS truck driver being at fault. This was
based on data about driver fault rates for
First Year Costs ........................
$15 two vehicle accidents, which was the
Total Discounted Costs, 10only relatively definitive data available
Year Period ...........................
113 when the SNPRM was finalized.4, 5 This
final rule uses 38.64 percent as the
These figures represent FMCSA’s
estimate for the accidents the driver
estimate of the costs associated with
could be attributed to the driver being
implementation of this rule. Where
at fault. This revised percentage of at
uncertainties exist regarding these cost
faults is calculated using the new
estimates, they are noted in the
preliminary data from the Large Truck
discussions.
Crash Causation Study.6 This number
was calculated in the following manner.
Changes From SNPRM
The LTCCS subdivides its analysis to
These regulatory evaluation estimates examine the actions taken by the truck
incorporate information provided to the driver in single-truck accidents, and
docket in response to questions in the
those taken by the truck driver and
SNPRM. They contain both substantial
other driver(s) in two- and multi-vehicle
adjustments and changes from the
accidents involving trucks. Thus we
numbers presented in the SNPRM
need an estimate of the percentage of
analysis.
driver fault in each category of accident,
The number of drivers screened for
and then to combine them to get an
each job opening is a good example of
overall value.
where a major adjustment in burden
Examining preliminary data on singleresulted from submissions to the docket
truck accidents, the LTCCS study
in response to questions asked in the
researchers found that in 32 of the 50
SNPRM. The issue is how many drivers,
accidents examined to date (or 64
on average, are investigated and
percent), some action by the truck driver
inquired about for every driver hired.
(driver non-performance, driver
The regulatory evaluation in the SNPRM
recognition, decision, or performance
used one driver applicant per job. The
error) was the ‘‘critical reason’’ for the
text of the SNPRM pointed out FMCSA
accident. In two-vehicle accidents
had conducted a study that reports the
involving a truck, the preliminary data
number is much higher than one to one
revealed that in 46 of the 157 accidents
(see document 41 in the docket), and
examined to date (or 29.3 percent), some
asked for information regarding what
action taken by the truck driver was the
the estimate should be. The responses to
critical reason for the accident. In multithe docket further confirmed there
vehicle accidents involving a truck, the
currently are on average multiple
preliminary data revealed that in 26 of
rejections per driver hired. The
78 accidents examined to date (or 33
explanation in the paperwork reduction
percent), some action by the truck driver
analysis explains how FMCSA
was the critical reason for the accident.
determined an estimated average of
In order to determine the overall
three applicants per job instead of the
percentage of total truck-related
former assumption of one applicant per
accidents where the truck driver’s
job.
action (or inaction) was the cause (and
Another example of a change is the
therefore could be ‘‘charged’’ with the
percentage of truck drivers that could be
accident), we must also know the
found at fault for accidents. This final
distribution of single-truck, two-vehicle,
rule uses estimates developed from
preliminary results of FMCSA’s Large
4 ‘‘Large Truck Crash Facts 2000,’’ Federal Motor
Truck Crash Causation Study that were
Carrier Safety Administration, Analysis Division,
not available when we initially prepared March 2002. This document is available online at
http://ai.volpe.dot.gov/CarrierResearchResults/
our benefits analysis for the SNPRM.
PDFs/2000LargeTruckFactsx.pdf.
They are used in this final rule as an
5 ‘‘Large Truck Crash Profile: The 1997 National
update for the scenario 1 analysis. The
Picture,’’ by the Analysis Division, Office of Motor
crash causation data supercedes the
Carriers, Federal Highway Administration,
September 1998. Table 15 from this report is
‘‘contributing factors’’ data used in the
available in the docket for this rulemaking as
SNPRM analysis. They allow us to
document 87.
establish a much stronger link between
6 Progress presentation on the Large Truck Crash
the actions taken by the truck driver and Causation Study is included in the docket as
the cause of the accident than does
document 88.

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Federal Register / Vol. 69, No. 61 / Tuesday, March 30, 2004 / Rules and Regulations
and multi-vehicle accidents involving a
truck as a percent of total truck-related
accidents. Categorizing truck-related
accident data from MCMIS into
single-, two-, and multi-vehicle truck
accidents for fiscal years 2001 through
2003, we found that single-truck
accidents represented an average of 24.5
percent of all truck-related accidents in
MCMIS over these three years, while
two-vehicle accidents represented 52.7
percent, and multi-vehicle accidents
represented 22.8 percent. These serve as
the weighting factors for calculating the
overall average percentage of accidents
where the truck driver likely was at
fault.
Multiplying the percent of total
accidents represented by each accident
category by the percent of each accident
category where the truck driver was at
fault, we derived an estimate of the
percent of all truck-related accidents
where the truck driver would be at fault.
The result is 38.64 percent.
24.5% single-truck accidents × 64% of
these where the truck driver was at
fault = 15.68.
52.7% two-vehicle accidents × 29.3% of
these where the truck driver was at
fault = 15.44.
22.8% multi-vehicle accidents × 33% of
these where the truck driver was at
fault = 7.52.
15.68 + 15.44 + 7.52 = 38.64.
This ‘‘38.64 percent’’ estimate
represents the percent of all truckrelated accidents where the truck driver
would have taken an action that served
as the critical reason for the accident
and therefore could be charged with the
accident. Of course, in making this
determination, we assumed that the 285
large truck accidents examined to date
as part of the Large Truck Crash
Causation Study are representative of all
truck-related accidents in recent years.
We used these results to determine the
number of drivers denied employment
under scenarios 1 and 2 in this analysis
of the final rule.
Adjustments Versus Changes
When making such substantial
revisions, it is important to distinguish
between what are adjustments to the
existing burden and what are new
changes in burden caused by this rule.
Adjustments such as the prospective
motor carriers’ ongoing costs of
performing the required investigations
and inquiries are not germane to the
new cost/benefit considerations of this
rule (i.e., they are not new costs caused
by of this rule). Therefore, this
regulatory evaluation limits itself to the
new costs and benefits resulting from
this rule’s implementation.

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The Paperwork Reduction Act
analysis addresses both the adjustments
in reporting burden and the new
changes in burdens caused by this rule.
The adjustments and changes are shown
side by side for clarity in that analysis.
Development of Benefit Scenarios
The intent of this rule is to reduce
accidents by altering some portion of
the 403,000 driver hiring decisions
made each year within all industries
covered by the FMCSRs. Because this
rule will provide hiring managers with
additional accident and alcohol/
controlled substance data with which to
evaluate driver applicants, it is
reasonable to assume that some drivers
will not be hired because of the new
data, whereas previously these drivers
would have been hired (in the absence
of this information). In this analysis, we
assumed that the drivers who are denied
employment because of the new
accident and alcohol/controlled
substances data will not obtain other
positions as drivers for an average of six
months. Drivers with relatively few
previous accidents or positive alcohol/
controlled substance test results
presumably will find work sooner,
while those with a relatively large
number of previous accidents (or
positive test results) are expected to
require a longer period. The assumption
of the analysis is the vast majority of
drivers initially denied employment
because of this rule will find alternative
positions as drivers over time. One
reason is their previous crashes
stretching back three years are removed
from their records. Another is in some
particularly competitive segments,
employers must select their drivers from
a limited pool of applicants (accidents
or no accidents). Only those particularly
problematic drivers who exhibit a
consistent pattern of poor safety
performance over an extended period of
time presumably will have difficulty reentering the industry at some point in
the future.
In the particularly competitive market
segments, employers experience greater
difficulty finding qualified drivers. This
is largely because the competitive
nature of the segment causes such
employers to pay relatively low wages
and/or subject drivers to extremely
difficult working conditions, erratic
hours, time away from home and family,
etc. Additionally, the broader
macroeconomic climate partially
determines the percent of existing
capacity of all segments of industries
requiring drivers, as well as changing
the size of the existing labor pool. Thus
the pressures to hire drivers are
different under different economic

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16711

conditions and thereby affect the point
at which employers in all industries, as
well as the particularly competitive forhire trucking segments would need to
hire new drivers.
Benefits accrue as a result of accident
reductions from prospective employers
hiring safer drivers in lieu of the worstperforming drivers. The assumptions
used to calculate the benefits in the
SNPRM are presented in this final rule
as scenario 1. Scenario 1 in this final
rule represents a lower bound of the
societal benefits of this rule, and still
forms what FMCSA believes is a
reasonable estimate of benefits that will
be obtained because of this final rule.
Scenario 2 represents an upper bound of
the societal benefits that FMCSA
estimates could accrue from this rule. It
was added to this analysis to provide
perspective on the sensitivity of the
estimates used. Scenarios 1 and 2 are
based on the following logic.
The only data that previous
employers are required to provide to
prospective employers is the data
maintained in the accident register
required by § 390.15. The issue is what
difference will such data make in the
thousands of driver hiring decisions
made by prospective motor carriers each
year. Because many accidents are not
the fault of the CMV driver, and many
motor carriers are under pressure to find
drivers, in some number of cases
FMCSA realizes the hiring official will
discount the accident data and hire the
driver anyway. The challenge is to
create an estimate of the number of
applicants that will be denied
employment based on this new data. We
have made two different sets of
assumptions to generate estimates of
what we believe would be lower and
upper bounds for the accident reduction
potential of this rule.
Benefits Scenario 1
Scenario 1 is considered conservative
and as such, represents a lower bound.
It assumes that of the 38.64 percent of
accidents where a truck was involved
and the CMV driver was at fault, the
hiring official will successfully infer
both the fault and decide to deny the
driver employment in 1⁄3 of those cases
(or 12.88 percent of all new accident
records made available to prospective
employers). In other words, the
prospective employer must use its own
method to infer ‘‘cause’’ or
‘‘chargeability’’ of an accident to a truck
driver, and additionally decide how the
employer will use that information in
deciding whether to deny employment
to that driver.
As a result, we calculate 12.88 percent
of the 142,500 truck-related accidents

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that will become available means 18,300
truck drivers will be denied
employment because of the new
accident data, since ‘‘chargeability/
fault’’ is a very important hiring factor

for safety conscious prospective
employers. When coupled with the
1,300 truck drivers we estimate will be
denied employment because of the
additional year of alcohol/controlled

substance data, the total number of
drivers denied positions in any given
year is almost 20,000. The benefits
associated with this rule under Benefits
Scenario 1 are presented in Table 4.

TABLE 4.—SUMMARY OF BENEFITS, BENEFITS SCENARIO 1, 2004–2013,
[In millions of dollars]

Benefits scenario 1

Direct Benefits Only 1
With 10% Deterrence
With 25% Deterrence
With 50% Deterrence

First-year benefits

Total discounted benefits, 10-year
analysis period

$7
8
9
11

$107
117
133
160

...............................................................................................................................................
Effect 2 ..................................................................................................................................
Effect 2 ..................................................................................................................................
Effect 2 ..................................................................................................................................

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 will result in some drivers improving their driving behavior because prospective employers will have such
data available for use in future hiring decisions. Since we were unsure of the exact magnitude of this effect, we illustrated 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 drivers (those with
poor accident or alcohol/controlled
substance information) because the new
accident and additional year of alcohol/
controlled substance test and refusal
data are made available by previous
employers.
Indirect benefits are those associated
with a deterrence effect. The FMCSA
believes that the availability of, and
easier access to, new driver safety
performance data will cause some
portion of drivers to improve their
driving behavior, because prospective
employers will now obtain and use such
data in hiring decisions. Relevant
research documents the existence of this

deterrence effect, most notably in the
field of drunk driving, and CMV CDL
driver traffic convictions. However,
since we do not know the specific
magnitude of the deterrence effect
associated with the availability of new
driver safety performance data, we
illustrated this effect as a percentage of
the direct accident reduction benefits
from this rule.
Benefits Scenario 2
Scenario 2 is considered an optimistic
scenario and as such, represents an
upper bound of the potential benefits of
this rule. It assumes the hiring official
will successfully infer in all of the
accidents where accident experts would
attribute fault to the CMV driver (38.64
percent of accidents involving a truck)
that the CMV driver was in fact at fault
and will also deny employment to all
such drivers.

The full 38.64 percent of drivers at
fault from the 142,500 truck-related
accidents that will become available to
prospective employers for use in the
hiring decision once this rule is fully
implemented would result in 55,000
truck drivers being denied employment
because of the new accident data. When
coupled with the 1,300 truck drivers we
estimate will be denied employment
because of the additional year of
alcohol/controlled substance data, the
total number of drivers denied positions
in any given year would be about 56,000
(after rounding). Total benefits that
could be associated with this rule under
Benefits Scenario 2 are presented in
Table 5 and also illustrate our
assumptions regarding the magnitude of
the deterrence effect associated with
this rule.

TABLE 5.—SUMMARY OF BENEFITS, BENEFITS SCENARIO 2, 2004–2013
[In millions of dollars]

Benefits scenario 2

Direct Benefits Only 1
With 10% Deterrence
With 25% Deterrence
With 50% Deterrence

...............................................................................................................................................
Effect 2 ..................................................................................................................................
Effect 2 ..................................................................................................................................
Effect 2 ..................................................................................................................................

First-year benefits

Total discounted benefits, 10-year
analysis period

$16
17
20
24

$271
298
339
406

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 will result in some drivers improving their driving behavior because prospective employers will now use
such data in future hiring decisions. Since we were unsure of the magnitude of this effect, we illustrate the deterrence effect at zero, 10, 25, and
50 percent of direct truck-related accident reduction benefits.

Under Benefits Scenario 2, first-year
(2004) benefits associated with this final

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rule range from $16 million with no
deterrence effect, to $24 million if the

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deterrence effect is equal to 50 percent
of the direct accident reduction benefits.

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Federal Register / Vol. 69, No. 61 / Tuesday, March 30, 2004 / Rules and Regulations
Total discounted benefits associated
with this rule range from a low of $271
million when we assumed no deterrence
effect to a high of $406 million when we
assumed the deterrence effect is equal to

50 percent of the direct accident
reduction benefits.
Net Benefits and Benefit Cost Ratios
Benefits Scenario 1. Comparing total
discounted costs and benefits under

Benefits Scenario 1, we calculated net
benefits and benefit-cost ratios for this
rule. They are presented in Table 6.

TABLE 6.—SUMMARY OF NET BENEFITS AND BENEFIT-COST RATIOS, BENEFITS SCENARIO 1, 2004–2013
[In millions of dollars]
Total discounted net
benefits (millions) 1

Benefits scenario 1

Direct Benefits Only .................................................................................................................................................
With 10% Deterrence Effect ....................................................................................................................................
With 25% Deterrence Effect ....................................................................................................................................
With 50% Deterrence Effect ....................................................................................................................................

Benefit-cost
ratio 2

–$6
4
20
47

0.95
1.04
1.18
1.42

1 Total Discounted Net Benefits were derived by subtracting the Total Discounted Cost estimate of $113 million in Table 3 from each of the
Total Discounted Benefits estimates in Column 3 of Table 4. For example, the $113 million in total discounted costs from Table 3 subtracted by
the $107 million in Total Discounted Benefits under the ‘‘Direct Benefits Only’’ scenario of Table 4 yields Total Net Discounted Benefits of –$6
million (after rounding) over the 10-year analysis period (2004–2013).
2 Benefit-Cost Ratios were derived by dividing the Total Discounted Cost estimate of $113 million in Table 3 from each of the Total Discounted
Benefits estimates for each of the Indirect Benefits assumptions located in Column 3 of Table 4. For example, the $107 million in Total Discounted Benefits under the ‘‘Direct Benefits Only’’ scenario of Table 4 divided by the $113 million in total discounted costs from Table 3 yields a
Benefit-Cost Ratio of 0.95 over the 10-year analysis period (2004–2013). A benefit-cost ratio less than one implies that the rule is not cost beneficial to implement within the 10-year analysis period. It says nothing about the cost effectiveness of the rule beyond 10 years.

When examining the total discounted
net benefits and benefit-cost ratios for
this conservative scenario contained in
Table 6, we find that if one assumes
there is no deterrence effect associated
with this rule, then the final rule is not
cost beneficial when measured within
the 10-year analysis period. However, if

one assumes any level of deterrence
effect, then the rule is cost beneficial
within the 10-year analysis period.
Regardless of the assumptions one
makes about the deterrence effect, the
estimated benefits and costs are
relatively equal within the 10-year
analysis when we use the conservative

benefits assumptions outlined above for
Scenario 1.
Benefits Scenario 2. Comparing total
discounted costs and benefits under
Benefits Scenario 2, we have calculated
net benefits and benefit-cost ratios for
this rule. They are presented in Table 7.

TABLE 7.—SUMMARY OF NET BENEFITS AND BENEFIT-COST RATIOS, BENEFITS SCENARIO 2, 2004–2013
[In millions of dollars]
Total net discounted benefits 1

Benefits scenario 2
Direct Benefits Only .................................................................................................................................................
With 10% Deterrence Effect ....................................................................................................................................
With 25% Deterrence Effect ....................................................................................................................................
With 50% Deterrence Effect ....................................................................................................................................

$158
185
226
294

Benefit-cost
ratio 2
2.40
2.64
3.00
3.61

1 Total Net Discounted Benefits were derived by subtracting the Total Discounted Cost estimate of $113 million in Table 3 from each of the
Total Discounted Benefits estimates in Column 3 of Table 5. For example, the $113 million in total discounted costs from Table 3 subtracted by
the $271 million in Total Discounted Benefits under the ‘‘Direct Benefits Only’’ scenario of Table 5 yields Total Net Discounted Benefits of $158
million (after rounding) over the 10-year analysis period (2004–2013).
2 Benefit-Cost Ratios were derived by dividing the Total Discounted Cost estimate of $113 million in Table 3 from each of the Total Discounted
Benefits estimates for each of the Benefits Scenarios located in Column 3 of Table 5. For example, the $271 million in Total Discounted Benefits
under the ‘‘Direct Benefits Only’’ scenario of Table 5 divided by the $113 million in total discounted costs from Table 3 yields a Benefit-Cost
Ratio of 2.40 over the 10-year analysis period (2004–2013). A benefit-cost ratio of greater than one implies that the rule is cost beneficial to implement when comparing costs to benefits within the 10-year analysis period.

Under Benefits Scenario 2, total net
discounted benefits associated with this
optimistic scenario for the rule over the
10-year analysis period, range from a
low of $158 million when we assume no
deterrence effect benefits to a high of
$294 million when we assume the
magnitude of the deterrence effect is
equal to 50 percent of the direct
accident reduction benefits.
Correspondingly, benefit-cost ratios
range from 2.40 when we assume no

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deterrence effect benefits to 3.61 when
deterrence effect benefits are assumed to
equal 50 percent of direct accident
reduction benefits.
Uncertainties
As seen from examining Tables 6 and
7, the threshold at which the benefits
associated with this rule are greater than
the costs (thereby making the rule cost
beneficial) is dependent upon several
important (and to some degree

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uncertain) factors. These include: (1)
The percentage of newly-available
truck-related accident records that will
be provided by previous employers to
prospective employers (we assumed all
will be provided), (2) the likelihood that
the prospective employer will use
‘‘chargeability’’ (and hence fault in an
accident) as the determining factor in
whether to hire a driver based on this
new data (we assumed a lower
percentage in scenario 1 and 100

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percent in scenario 2), and (3) the
likelihood that the prospective
employer will be able to determine, or
infer in a certain percentage of cases,
that the CMV driver was in fact at fault
in an accident, based on the information
provided by previous employers. (To
examine the sensitivity of the second
and third uncertainties on the results,
we incorporated the two benefits
scenarios described above).
Research seems to indicate that the
‘‘chargeability’’ factor is a very
important one in the hiring decision for
the ‘‘safest’’ motor carriers. This is based
on a recent survey of the safest motor
carriers conducted by the University of
Maryland Robert H. Smith School of
Business on driver hiring practices. It
revealed that 93 percent of such
trucking company officials surveyed
indicated that ‘‘no chargeable
accidents’’ was an ‘‘important’’ or ‘‘very
important’’ factor in their driver hiring
decisions.7 However, there are motor
carriers whose operating practices seem
to indicate they place a low importance
on previous driver safety behavior
indicated by convictions on the driver’s
record obtained from the State.8 Such
motor carriers may place a similar lack
of importance on the new safety
performance history data such as
chargeable accidents required by this
final rule. Such motor carriers often are
the ones targeted by the FMCSA
SafeStat scores to receive a carrier
compliance review.
If the LTCCS results on the initial 285
large-truck accidents are representative
of all large truck-related accidents, if the
hiring motor carrier can determine or
infer driver fault for the entire 38.64
percent of truck accidents, and if the
motor carrier places the same emphasis
on at-fault accident data as the safest
motor carriers, then scenario 2 could
apply. It seems questionable all these
conditions will be met for all motor
carriers. For example, the accident data
specified at § 390.15 for reporting is not
required to contain information about
driver fault.
7 ‘‘Best Highway Safety Practices, A Survey of the
Safest Motor Carriers About Safety Management
Practices,’’ by Thomas Corsi and Richard Barnard,
University of Maryland, College Park, R.H. School
of Business, 2003, Report to the Federal Motor
Carrier Safety Administration. This document is
available online at http://ai.volpe.dot.gov/
CarrierResearchResults/
CarrierResearchResults.asp?file=PDFs/
BestHighwaySafetyPractices.pdf.
8 ‘‘An Analysis of Commercial Vehicle Driver
Traffic Conviction Data to Identify Higher Risk
Motor Carriers,’’ Brenda Lantz, North Dakota State
University and David Goettee, Federal Motor
Carrier Safety Administration, March 2004. A copy
of this analysis is available online as document 85
in the docket.

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The estimation of costs and benefits of
this rule are discussed in more detail in
the next two sections.
II. Costs
Accident Data
In 1997, the study ‘‘Empty Chairs and
Musical Seats 9 prepared for the ATA
Foundation, Inc. by the Gallup
Organization, estimated that 403,000
commercial drivers will 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) will need to be hired due to
internal turnover (drivers switching
trucking companies), 35,000 (or 8
percent) will need to be hired due to
industry growth, and 48,000 (or 12
percent) will need to be hired due to
attrition, retirement, and external
turnover (drivers leaving trucking for
alternative industries). This estimate is
used later in the analysis when we
determine the costs associated with this
rule.
To estimate the new accident records
that may 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).10 Using an estimate of 3
million as the total existing driver
population, we estimated the number of
annual accidents per driver at 0.148
(445,000/ 3 million).
In this analysis, we assumed drivers
being hired due to internal turnover
(320,000 positions) will be experienced
drivers (with possible accident records)
and the remainder (those hired due to
attrition, retirement, and industry
growth) will be new drivers (those
without possible accident records). As
such, the number of accidents available
for the number of drivers being hired
each year will be 47,500 (0.148 ×
320,000). Over three years, the number
of accidents these drivers will be
involved in would total 142,500 (47,500
× 3).
Regarding new data reporting
requirements, each driver applying for a
9 ‘‘Empty Seats and Musical Chairs: Critical
Success Factors in Truck Driver Retention’’, page 1,
prepared by the Gallup Organization for the
American Trucking Associations (ATA)
Foundation, October 1997. A copy of this report is
available online at http://www.atri-online.org/
research/safety/images/Musical_Chairs.pdf.
10 This number differs from the number of
accidents resulting from application of the
definition for accident found at § 390.5 and
required to be retained in the accident register by
§ 390.15(b)(1). For an explanation see full regulatory
evaluation for this final rule in the docket,
document 86.

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new position will potentially generate a
new investigation request from the
prospective employer, and consequently
a new search by the previous employer.
The exact number of investigation
requests conducted by prospective
employers, and responded to by
previous employers, depends upon
operating practices used by different
employers in different industry sectors.
In this analysis, we assumed that on
a national average, prospective
employers will conduct three driver
safety performance history
investigations for each position filled
within the industry each year. This
estimate is based on information
supplied to FMCSA in the docket,
including ATA, AT&T and others
during the public comment period for
the SNPRM. (An explanation of how the
value of 3 was developed is presented
in the Paperwork Reduction Act section
of this rule.) Previously, we estimated
that 403,000 drivers are hired annually
within the industry, of which 320,000
will be drivers with previous experience
(and will have a potential accident
record to search). Therefore, 960,000
driver record searches will be
conducted each year on average for each
position filled (320,000 × 3).
Additionally, we estimated that 142,500
accident records (47,500 annual
accident records × 3 years) will now be
reported annually by previous
employers to prospective employers.
Since each investigation request
requires a search, whether it yields past
accidents or not, 960,000 searches will
need to be completed per year at $1.57
per search according the ARMA. For the
142,500 cases where an accident is
discovered within the preceding three
years, duplication of the record will
need to be performed at $1.33 per record
according to ARMA, and the original
record will need to be refiled in the
driver’s investigation history file at
$1.84 per record according to ARMA.
Lastly, we assumed one letter will be
mailed, at $0.37 per letter via first-class
mail, for each of the 960,000 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 firstyear 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
$2.4 million.

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Note: Although there are estimated to be
1.39 previous employers per applicant, we
decided to be conservative and exclude that
from the calculations. This lowers the costs
some, but it lowers the benefits by even more
than the costs. These considerations are
reflected in the information collection
analyses for the paperwork reduction
analysis.

Alcohol and Controlled Substances
Test-Related Data
Using data from the 2001 FMCSA
Drug and Alcohol Testing Survey, we
estimated that an average of 5,120 of the
403,000 drivers hired annually within
the industry will fail random and nonrandom alcohol/controlled substances
tests each year, and will be referred for
rehabilitation. The final rule requires
one additional year of such data to be
reported to prospective employers on
the 320,000 experienced drivers hired
annually (recall that the remainder of
drivers hired each year are assumed to
be new drivers). Assuming that
prospective employers conduct
investigations on an average of three
potential drivers per position opening,
whether it yields past data or not, then
960,000 record searches (320,000 × 3)
will have to be completed per year at
$1.57 per search according the ARMA.
Also, in the 5,120 cases where a
violation/referral is discovered for
reporting the additional year’s results,
duplication of the record will have to be
performed at $1.33 per record according
to ARMA, and the original record will
have to be refiled in the driver’s file at
$1.84 per record according to ARMA.
Lastly, we assumed one letter will be
mailed at $0.37 per letter via first-class
mail for each of the 960,000 driver
record searches conducted annually
with the letter containing either 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 firstyear costs from: (a) Searching/retrieving,
duplicating, and refiling one year of
such data in preparation for mailing,
and (b) mailing out the information are
$1.9 million. Because of cost savings
and overlaps with the already-existing
processes being performed, the actual
cost could be less.
Also, we know that some segments of
the industry initiate 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

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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 alcohol and
controlled substances data will be
requested from the same previous
employers that were investigated
initially for accident and other safety
performance history data. We do not
have enough data to estimate the
additional cost these employers will
bear for these multiple investigations for
the same driver application. Therefore,
we did not incorporate any such
calculations into our analysis.
Costs To Notify Drivers of Rights To
Review Data
Under this rule, data obtained through
investigation is defined to include
driver accident and alcohol/controlled
substances data. For this analysis, we
assumed that 1.2 million drivers
(403,000 × 3) applying for positions
annually will be notified of such rights
on their employment applications, or
via a simple return letter sent to the
driver upon receipt of the application.
Since we expect that employers will
have to purchase new application forms,
including the new/revised information,
we used the difference between the
current cost of a standard application
form. This is $0.06 each when
purchased from a large office supply
distributor, versus what we believed
would be the cost for the new
customized form ($0.12 each). For 1.2
million applications, the annual cost to
provide this information to applicants is
$72,500.
There are some segments of the motor
carrier industry (such as truckload) that
encourage drivers to make initial
applications via telephone, where no
paperwork is provided to the driver at
that stage. To abide by the requirements
of the final rule, prospective employers
will then be required to notify these
applicants via mail of their rights to
review, request correction, or rebut
safety performance history data
furnished by previous employers. To
establish an upper bound, we assumed
a third of the applications (or 403,000)
will be filed via telephone, each
requiring notification of driver review,
correction and rebuttal rights be mailed.
For purposes of this analysis we assume
this information is transmitted via a
form letter. At $0.37 for postage and
$1.00 for labor to address and mail each
letter, an additional cost of $552,000
will be incurred. Added to the $72,500
in costs discussed in the last paragraph,
total costs to notify drivers of their right
to review and protest safety

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16715

performance data are $625,000
annually.
Costs Associated With Driver Requests
for Previous Employer Data
Since each driver applying for a new
position is notified of his or her rights
to review and refute data in their safety
performance histories, it is reasonable to
assume that some portion of these driver
applicants will actually request their
data. Of the total 960,000 annual
applicants who have previous
experience within the industry (and for
whom previous safety performance
history data will exist), we assumed that
the 320,000 who are hired are unlikely
to request their data for review, since
they were in fact hired.
The question is what percentage of
the other two-thirds of applicants with
previous employer safety performance
history (640,000) who were not offered
the position will request this data? In
order to create a deterrent to drivers
frivolously requesting this information,
the rule requires drivers to make their
request to receive this information in
writing. Additionally FMCSA believes
that the dependence of previous
employers’ limited liability being based
on accuracy creates an incentive for
previous employers to be accurate.
Thus, most of the driver safety
performance history data reported will
be accurate. Therefore, FMCSA assumes
that one-half of those experienced
drivers who are denied employment
will take the time to make a written
request to receive a copy of the
information provided by previous
employers to review. This is 320,000
drivers (640,000 denied × 1⁄2).
Each of these requests is accompanied
by a record search, at $1.57 per search,
and duplication at $1.33 per search,
which when multiplied by 320,000
yields costs of $0.5 million and $0.4
million, respectively. Additionally, at
$0.37 per mailing, an additional mailing
cost of almost $120,000 must be added.
Summing these three cost subtotals
yields a total cost of $1 million annually
(after rounding) to provide driver
applicants with their safety performance
data.
Costs Associated With Driver Requests
for Correction or Rebuttal
Recall that the rule provides that all
drivers have the right to review,
comment on, and rebut the safety
performance history provided by their
previous employers to prospective
employers and that 320,000 of the
applicants will request such data. Of
these, only some portion is likely to file
a formal protest, since an investment of
personal time is required to initiate such

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an action. In this analysis, we assumed
that 10 percent of the driver applicants
who request their safety performance
data each year will then file a protest.
This amounts to an average of 32,000 (or
320,000 × 10%) filing protests each year.
In the 32,000 cases where we
anticipate a protest will be filed each
year, we assumed two additional hours
of labor time spent by each driver to
develop and file that protest with their
previous employer. Additionally, we
assumed two additional hours of labor
time spent by each previous employer to
address each protest. Using an average
2001 hourly wage rate for trucking
managers of $35.94 and 32,000 cases,
total costs to the trucking company to
address driver protests of their data files
are $2.3 million annually, undiscounted
(32,000 × $35.94 × 2).11 Multiplying the
2001 hourly wage rate of $14.66
(average for a truck driver) by the two
additional hours spent by each of the
32,000 drivers to file a protest adds
another $0.9 million to this total annual
cost. Aggregating these two components
yields an annual total cost to address
driver protests of $3.2 million. In
estimating the driver and employer
costs associated with potential protests,
it was unclear how frequently the driver
or the employer will secure the services
of an attorney to either file or review
such protests. Therefore, costs
associated with these services were not
included in this analysis. Although the
agency invited comments regarding the
accuracy of this omission, no public
comments were submitted.
Costs to Prospective Employers To
Review Additional Data
As discussed, the new driver safety
performance history data required under
this final rule will expand the 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
safety performance history data will be
expanded by an additional 10 minutes
per hiring decision. Recall that the
Gallup poll indicated that of the 403,000
driver position openings filled within
the trucking industry each year, 320,000
will be filled due to internal turnover
(drivers switching jobs within the
11 In table 3 of the article ‘‘A Cost Benefit Study
of Motor Carrier Safety Programs,’’ published in the
January 1997 Journal of Transport Economics and
Policy, Professors Leon Moses and Ian Savage
estimated that the average trucking company
manager earns $31.25 per hour, including wages
and benefits. Inflating this figure to 2001 dollars
using the GDP price indicator yields an average
wage for trucking company managers of $35.94. A
copy of this table is available in the docket as
document 89.

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industry). Therefore, for our
calculations here, we assumed 960,000
applicants for 320,000 position
openings will have safety performance
histories for prospective employers to
review, with the remainder of industry
positions being filled by candidates
outside of the industry, whether new
workers to the labor force or those
switching from outside industries.
Using the average 2001 hourly wage rate
for a trucking company manager of
$35.94, 960,000 applications by
experienced drivers, and a total of 10
additional minutes spent reviewing
each driver’s safety performance data in
preparation for a hiring decision, total
annual costs of this activity amount to
$5.8 million (undiscounted).
Total Costs
Total first-year costs to implement
this final rule amount to approximately
$15 million (undiscounted, after
rounding). Total discounted costs over
the 10-year analysis period (2004–2013)
are $113 million, using a discount rate
of seven percent.
III. Benefits
Societal benefits associated with this
final rule will accrue from the expected
reduction in accidents resulting from
the use of safer drivers by all industries
subject to the FMCSRs. Specifically,
additional driver safety performance
history data used in the hiring decision
process should result in denying
positions to the less safe drivers who
prior to this final rule would have been
hired. Additionally, it is reasonable to
assume this final rule will generate a
deterrence effect, since studies of
similar social problems and policy
approaches have quantified such
impacts (reducing alcohol-related
accidents via changes in penalties and
public attitudes and reduced CDL
specified traffic convictions). In this
analysis, we quantified the ‘‘direct’’
benefits resulting from a reduction in
accidents due to changes in driver
hiring decisions. To illustrate ‘‘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.
Total Number of Drivers Affected by
This Rule
We analyze in scenarios 1 and 2 that
this rule will alter portions of the
403,000 driver hiring decisions made
each year within the trucking industry.
Because hiring managers will have

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accident and an additional year of
alcohol/controlled substance test data
with which to evaluate drivers for
positions, it is likely that the new data
will result in some drivers (who
previously would have been hired) not
being hired because of this rule.
In the conservative scenario 1 of this
benefits analysis, we estimate that once
fully implemented 20,000 of the 403,000
commercial drivers hired annually by
the industry will now be denied
employment because of the new
accident and alcohol/controlled
substance test data becoming available
to prospective employers.
In the optimistic scenario 2 of this
benefits analysis, we estimated that
once fully implemented 56,000 of the
403,000 commercial drivers hired
annually by the industry will now be
denied employment because of the new
accident and alcohol/controlled
substance test data becoming available
to prospective employers.
Benefits Associated With Accident
Reductions
Using the above data on the number
of drivers who will not be hired for on
average six months as a result of the
newly-available accident data, we can
estimate the direct accident reduction
benefit associated with this rule.
A study conducted by the Volpe
National Transportation Systems 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 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 will accrue from this rule. We
felt that this was logical considering that
a carrier’s safety performance profile is
a direct extension of that of its drivers.
The Volpe study 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. This is in contrast to
carriers identified as low risk, based on
the absence of past accidents and hence
no Accident Safety Evaluation Area
(SEA) score, who had a postidentification accident rate of only 29.9
accidents per 1000 power units. As
stated, under the premise that a motor
carrier’s accident profile is a direct

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extension of its 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-ofService Roundtables, July 2000).
Therefore, the difference in accidents
per driver is .026 (51.5 /(1000 × 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 final rule will 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 (0.026¥0.017). By using such a
conservative estimate (i.e., it is likely
that drivers with a high number of past
accidents will find it difficult to secure
alternative positions on average within
six months), we are ensuring that our
estimates of accident reduction benefits
will not be overstated.
Using an average cost per truckrelated accident of $79,873 in 2002
dollars, we can estimate the value of
accident reduction benefits.12
Accident Data Benefits Scenario 1
For illustrative purposes, in the first
year of the analysis period (2004), one
year of accident data (or 47,500 accident
records) will be available to prospective
employers. Based on an assumption that
in 12.88 percent of these cases, the
driver will not be hired for on average
six months, then 6,100 drivers will be
denied employment because of the
newly-available accident data. In the
second year of the analysis period
(2005), two years of accident data (or
95,000 records) are collected on drivers
and the number of drivers not hired
rises to 12,200 (or 12.88 percent of the
95,000 records). In 2006 and thereafter,
12 The average cost per truck-related accident was
obtained from ‘‘Costs of Large Truck- and BusInvolved Crashes’’ by Eduard Zaloshnja, Ted Miller,
and Rebecca Spicer, 2000. Cost estimates were
updated to 2003 using the Gross Domestic Product
(GDP) Price Deflator). This document is available in
docket FMCSA–00–7382 as document 6.

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when this final rule will be fully
implemented, the number of drivers not
hired because of the new accident data
will rise to 18,300 (or 12.88 percent of
the 142,500 newly-available accident
records for the 320,000 experienced
drivers hired each year).
At an average cost per accident of
$79,873 in 2002 dollars, an accident
differential of .0085, and 6,100, 12,200,
and 18,300 drivers who are not hired in
2004, 2005, and 2006, respectively, the
undiscounted value of annual accident
reduction benefits is equal to $4.2
million in 2004, $8.4 million in 2005,
and $12.6 million in 2006 (when three
years of data become available to
prospective employers). This translates
to a total of 52, 105, and 157 accidents
avoided in these three years,
respectively, as a result of the newlyavailable accident data. Thereafter, the
accident reduction potential (157
accidents) remains the same as that in
2006, the year the accident data
retention and reporting requirement will
become fully implemented. First-year
accident reduction benefits equal $4.2
million (undiscounted), while total
discounted accident reduction benefits
from the new accident data are equal to
$82 million (after rounding) over the 10year analysis period.
Accident Data Benefits Scenario 2
In the first year of the analysis period
(2004), one year’s worth of accident data
(or 47,500 records) will be available to
prospective employers, since previous
employers are currently required to
collect and retain one year’s worth of
such data. Based on our earlier
assumption for the second benefits
scenario that in 38.64 percent of these
cases the driver will not be hired, then
18,300 drivers will be denied
employment because of the newly
available accident data. In the second
year of the analysis period (2005), two
years of accident data (or 95,000
records) are collected on drivers, and
the number of drivers not hired because
of the new accident data rises to 36,700
(or 38.64 percent of the 95,000 records),
and in 2006 and thereafter, when this
final rule will be fully implemented, the
number of drivers not hired because of
the new accident data will rise to 55,000
(or 38.64 percent of the 142,500 newlyavailable accident records available to
prospective employers each year).
At an average cost per accident of
$79,873 in 2002 dollars, an accident
differential of .0085, and 18,300, 36,700,
and 55,000 drivers who are not hired in
2004, 2005, and 2006, respectively, the
undiscounted value of annual accident
reduction benefits is equal to $12.6
million in 2004, $25.2 million in 2005,

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16717

and $37.7 million in 2006 (when three
years of data become available to
prospective employers). This translates
to a total of 157, 315, and 472 accidents
avoided in these three years,
respectively, as a result of the newly
available accident data. Thereafter, the
accident reduction potential (472
accidents) remains the same as that in
2006, the year the accident data
retention and reporting requirement will
become fully implemented. First-year
accident reduction benefits equal $12.6
million (undiscounted), while total
discounted accident reduction benefits
from the new accident data are equal to
$247 million (after rounding) over the
10-year analysis period.
Benefits From Alcohol and Controlled
Substances Data
The second source of direct accident
reduction benefits will result from the
availability of driver alcohol and
controlled substance use and
rehabilitation program data by
prospective employers. Lacking a data
source linking positive tests for alcohol
and controlled substances with accident
rates, we used FMCSR traffic
enforcement data for violations of
alcohol and controlled substances and
accident rates as a proxy.
The 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 threeyear 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 during
any given year because of the new
alcohol/controlled substances data will
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 (0.0633 × 1⁄2 year). In this
analysis, we estimated that roughly 25
percent (or 1,280) of those 5,120
commercial drivers who fail random or
non-random alcohol/controlled
substance tests annually, are referred to
rehabilitation programs, and change
employment within the industry each
year, will now be denied employment

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because of the new alcohol/controlled
substance program data made available
to prospective employers.
Using an average cost per truckrelated 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 2004. 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 2004 and
2013 (0.0316 × 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.
Total Direct (Accident Reduction)
Benefits
Under Benefits Scenario 1, where we
used relatively conservative
assumptions regarding the use of
accident records by prospective
employers, total discounted direct
benefits of this rule are $107 million
(after rounding). This total is derived by
adding the $82 million in total
discounted accident reduction benefits
from the new accident records
discussed earlier with the $24 million in
total discounted accident reduction

benefits associated with new alcohol/
controlled substance data discussed
above. Note that we have not yet
incorporated any indirect benefits, or
those associated with a deterrence
effect. Those are discussed in the next
section.
Under scenario 2, where we used
more aggressive assumptions regarding
the use of accident records by
prospective employers, total discounted
direct benefits of this rule are $271
million (after rounding). This total was
derived by adding the $247 million in
total discounted accident reduction
benefits from the new accident records
with the $24 million in total discounted
accident reduction benefits associated
with new alcohol/controlled substance
data. Again, note that we have not yet
incorporated any indirect benefits, or
those associated with a deterrence
effect. Those are discussed below.
Benefits From a Deterrence Effect
FMCSA believes it is reasonable to
assume there will be a ‘‘deterrence
effect’’ associated with this rule, where
a driver will strive to improve his or her
safety performance record because he or
she will know that such information
will be available to prospective
employer. This will limit the ability of
a driver to ‘‘run away’’ from a bad

accident history, just as it has been for
alcohol and controlled substances
abuse. However, we are unsure as to the
specific magnitude of this effect.
Therefore, we performed a sensitivity
analysis as part of 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
Benefits Scenario 1. Recall that under
Benefits Scenario 1, we estimated that
in 12.88 percent of the accidents where
accident data will be made available to
prospective employers, the prospective
motor carrier will both accurately infer
the truck driver was at fault and choose
to deny employment as a result. Total
benefits associated with this rule under
Benefits Scenario 1 are identified in
Table 8 and are separated according to
our assumptions regarding the
magnitude of the deterrence effect
associated with this rule.

TABLE 8.—SUMMARY OF BENEFITS, BENEFITS SCENARIO 1, 2004–2013
[In millions of dollars]

Benefits scenario 1

Direct Benefits Only 1
With 10% Deterrence
With 25% Deterrence
With 50% Deterrence

Total discounted
benefits, 10Year analysis
period

First-year
benefits

...............................................................................................................................................
Effect 2 ..................................................................................................................................
Effect 2 ..................................................................................................................................
Effect 2 ..................................................................................................................................

$7
8
9
11

$107
117
133
160

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 will result in some drivers improving their driving behavior because prospective employers will 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.

Under Benefits Scenario 1, first-year
(2004) benefits associated with this final
rule range from slightly less than $7
million when we assume there is no
deterrence effect to $11 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 $107
million when we assume no deterrence

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effect to a high of $160 million when we
assume the deterrence effect is equal to
50 percent of the direct accident
reduction benefits.
Benefits Scenario 2. Recall that under
Benefits Scenario 2, or what we
estimated to be an ‘‘upper bound’’ to the
benefits estimates, we assumed that in
all 38.64 percent of the accidents where
the truck driver is chargeable for the
accident, the prospective motor carrier

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will both correctly infer the
chargeability and deny employment.
Total benefits that could be associated
with this rule under Benefits Scenario 2
are identified in Table 9 and are
separated according to our assumptions
regarding the magnitude of the
deterrence effect associated with this
rule.

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16719

TABLE 9.—SUMMARY OF BENEFITS, BENEFITS SCENARIO 2, 2004–2013
[In millions of dollars]

First-year
benefits

Benefits scenario 2

Direct Benefits Only 1
With 10% Deterrence
With 25% Deterrence
With 50% Deterrence

...............................................................................................................................................
Effect 2 ..................................................................................................................................
Effect 2 ..................................................................................................................................
Effect 2 ..................................................................................................................................

Total discounted
benefits, 10Year analysis
period

$16
17
20
24

$271
298
339
406

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 will result in some drivers improving their driving behavior because prospective employers will 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.

Under Benefits Scenario 2, first-year
(2004) benefits associated with this final
rule range from $16 million when we
assume there is no deterrence effect to
$24 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 $271
million when we assume no deterrence
effect to a high of $406 million when we
assume the deterrence effect is equal to
50 percent of the 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 amends chapter III of title 49
CFR parts 390 and 391, as set forth
below:
PART 390—FEDERAL MOTOR
CARRIER SAFETY REGULATIONS;
GENERAL
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 390.5 is amended by adding
the following definition in alphabetic
order to read as follows:

■

§ 390.5

*

Definitions.

*

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*

*

*

17:12 Mar 29, 2004

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Previous employer means any DOT
regulated person who employed the
driver in the preceding 3 years,
including any possible current
employer.
*
*
*
*
*
■ 3. Section 390.15 is revised to read as
follows:
§ 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, an authorized State or
local enforcement agency representative
or authorized third party representative,
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 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 April
29, 2003, motor carriers must maintain
an accident register for three years after
the date of each accident. For accidents
that occurred on or prior to April 29,
2003, motor carriers must maintain an
accident register for a period of one year
after the date of each accident.
Information placed in the accident
register must contain at least the
following:
(1) A list of accidents as defined at
§ 390.5 of this chapter containing for
each accident:
(i) Date of accident.
(ii) City or town, or most near, where
the accident occurred and the State
where the accident occurred.
(iii) Driver Name.
(iv) Number of injuries.
(v) Number of fatalities.

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(vi) Whether hazardous materials,
other than fuel spilled from the fuel
tanks of motor vehicle involved in the
accident, were released.
(2) Copies of all accident reports
required by State or other governmental
entities or insurers.
(Approved by the Office of Management and
Budget under control number 2126–0009)

PART 391—QUALIFICATIONS OF
DRIVERS
4. 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.

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

■

§ 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) The reason for leaving the employ
of that employer,
(iv) After October 29, 2004, whether
the (A) Applicant was subject to the
FMCSRs while employed by that
previous employer,
(B) Job was designated as a safety
sensitive function in any DOT regulated
mode subject to alcohol and controlled
substances testing requirements as
required by 49 CFR part 40;
*
*
*
*
*
(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

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investigating the applicant’s safety
performance history information as
required by paragraphs (d) and (e) of
§ 391.23. The prospective employer
must also notify the driver in writing of
his/her due process rights as specified
in § 391.23(i) regarding information
received as a result of these
investigations.
■ 6. In § 391.23, revise paragraphs (a)(2),
(b) and (c), and add new paragraphs (d)
through (l) to read as follows:
§ 391.23

Investigations and inquiries.

(a) * * *
(1) * * *
(2) An investigation of the driver’s
safety performance history with
Department of Transportation regulated
employers during the preceding three
years.
(b) A copy of the driver record(s)
obtained in response to the inquiry or
inquiries to each State driver record
agency required by paragraph (a)(1) of
this section must be placed in the driver
qualification file within 30 days of the
date the driver’s employment begins
and be retained in compliance with
§ 391.51. If no driving record exists from
the State or States, the motor carrier
must document a good faith effort to
obtain such information, and certify that
no record exists for that driver in that
State. The inquiry to the State driver
record agencies must be made in the
form and manner each agency
prescribes.
(c)(1) Replies to the investigations of
the driver’s safety performance history
required by paragraph (a)(2) of this
section, or documentation of good faith
efforts to obtain the investigation data,
must be placed in the driver
investigation history file, after October
29, 2004, within 30 days of the date the
driver’s employment begins. Any period
of time required to exercise the driver’s
due process rights to review the
information received, request a previous
employer to correct or include a
rebuttal, is separate and apart from this
30-day requirement to document
investigation of the driver safety
performance history data.
(2) 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, or
good faith efforts to do so. The record
must include the previous employer’s
name and address, the date the previous
employer was contacted, or the attempts
made, and the information received
about the driver from the previous
employer. Failures to contact a previous

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employer, or of them to provide the
required safety performance history
information, must be documented. The
record must be maintained pursuant to
§ 391.53.
(3) Prospective employers should
report failures of previous employers to
respond to an investigation to the
FMCSA following procedures specified
at § 386.12 of this chapter and keep a
copy of such reports in the Driver
Investigation file as part of documenting
a good faith effort to obtain the required
information.
(4) Exception. For a drivers with no
previous employment experience
working for a DOT regulated employer
during the preceding three years,
documentation that no investigation
was possible must be placed in the
driver history investigation file, after
October 29, 2004, within the required 30
days of the date the driver’s
employment begins.
(d) The prospective motor carrier
must investigate, at a minimum, the
information listed in this paragraph
from all previous employers of the
applicant that employed the driver to
operate a CMV within the previous
three years. The investigation request
must contain specific contact
information on where the previous
motor carrier employers should send the
information requested.
(1) General driver identification and
employment verification information.
(2) The data elements as specified in
§ 390.15(b)(1) of this chapter for
accidents involving the driver that
occurred in the three-year period
preceding the date of the employment
application.
(i) Any accidents as defined by
§ 390.5 of this chapter.
(ii) Any accidents the previous
employer may wish to provide that are
retained pursuant to § 390.15(b)(2), or
pursuant to the employer’s internal
policies for retaining more detailed
minor accident information.
(e) In addition to the investigations
required by paragraph (d) of this
section, the prospective motor carrier
employers must investigate the
information listed below in this
paragraph from all previous DOT
regulated employers that employed the
driver within the previous three years
from the date of the employment
application, in a safety-sensitive
function that required alcohol and
controlled substance testing specified by
49 CFR part 40.
(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, or 49 CFR part 40.

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(2) Whether the driver failed to
undertake or complete a rehabilitation
program prescribed by a substance
abuse professional (SAP) pursuant to
§ 382.605 of this chapter, or 49 CFR part
40, subpart O. 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 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 § 382.605 or 49 CFR
part 40, subpart O 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
employer must provide to the previous
employer the driver’s written consent
meeting the requirements of § 40.321(b)
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
employer must not permit the driver to
operate a commercial motor vehicle for
that motor carrier.
(g) After October 29, 2004, previous
employers must:
(1) Respond to each request for the
DOT defined information in paragraphs
(d) and (e) of this section within 30 days
after the request is received. If there is
no safety performance history
information to report for that driver,
previous motor carrier employers are
nonetheless required to send a response
confirming the non-existence of any
such data, including the driver
identification information and dates of
employment.
(2) Take all precautions reasonably
necessary to ensure the accuracy of the
records.
(3) Provide specific contact
information in case a driver chooses to
contact the previous employer regarding
correction or rebuttal of the data.
(4) Keep a record of each request and
the response for one year, including the
date, the party to whom it was released,
and a summary identifying what was
provided.
(5) Exception. Until May 1, 2006,
carriers need only provide information
for accidents that occurred after April
29, 2003.

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(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
driver safety performance history
records from disclosure to any person
not directly involved in forwarding the
records, except the previous employer’s
insurer, except that the previous
employer may not provide any alcohol
or controlled substances information to
the previous employer’s insurer.
(i)(1) The prospective employer must
expressly notify drivers with
Department of Transportation regulated
employment during the preceding three
years—via the application form or other
written document prior to any hiring
decision—that he or she has the
following rights regarding the
investigative information that will be
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 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 previous
employer and the driver cannot agree on
the accuracy of the information.
(2) Drivers who have previous
Department of Transportation regulated
employment history in the preceding
three years, and wish to review previous
employer-provided investigative
information must submit a written
request to the prospective employer,
which may be done at any time,
including when applying, or as late as
30 days after being employed or being
notified of denial of employment. The
prospective employer must provide this
information to the applicant within five
(5) business days of receiving the
written request. If the prospective
employer has not yet received the
requested information from the previous
employer(s), then the five-business days
deadline will begin when the
prospective employer receives the
requested safety performance history
information. If the driver has not
arranged to pick up or receive the
requested records within thirty (30)
days of the prospective employer
making them available, the prospective
motor carrier may consider the driver to
have waived his/her request to review
the records.

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(j)(1) Drivers wishing to request
correction of erroneous information in
records received pursuant to paragraph
(i) of this section must send the request
for the correction to the previous
employer that provided the records to
the prospective employer.
(2) After October 29, 2004, the
previous employer must either correct
and forward the information to the
prospective motor carrier employer, or
notify the driver within 15 days of
receiving a driver’s request to correct
the data that it does not agree to correct
the data. If the previous employer
corrects and forwards the data as
requested, that employer must also
retain the corrected information as part
of the driver’s safety performance
history record and provide it to
subsequent prospective employers when
requests for this information are
received. If the previous employer
corrects the data and forwards it to the
prospective motor carrier employer,
there is no need to notify the driver.
(3) Drivers wishing to rebut
information in records received
pursuant to paragraph (i) of this section
must send the rebuttal to the previous
employer with instructions to include
the rebuttal in that driver’s safety
performance history.
(4) After October 29, 2004, within five
business days of receiving a rebuttal
from a driver, the previous employer
must:
(i) Forward a copy of the rebuttal to
the prospective motor carrier employer;
(ii) Append the rebuttal to the driver’s
information in the carrier’s appropriate
file, to be included as part of the
response for any subsequent
investigating prospective employers for
the duration of the three-year data
retention requirement.
(5) The driver may submit a rebuttal
initially without a request for
correction, or subsequent to a request
for correction.
(6) The driver may report failures of
previous employers to correct
information or include the driver’s
rebuttal as part of the safety
performance information, to the FMCSA
following procedures specified at
§ 386.12.
(k)(1) The prospective motor carrier
employer must use the information
described in paragraphs (d) and (e) of
this section only as part of deciding
whether to hire the driver.
(2) The prospective motor carrier
employer, 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. The prospective motor carrier

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16721

employer may not provide any alcohol
or controlled substances information to
the prospective motor carrier employer’s
insurer.
(l)(1) No action or proceeding for
defamation, invasion of privacy, or
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)(i) or (ii) 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)(1)
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.
(Approved by the Office of Management and
Budget under control number 2126–0004)

7. In § 391.51, paragraph (b)(2) and the
last line for Office of Management and
Budget authority are revised to read as
follows:

■

§ 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
§ 391.23(a)(1);
*
*
*
*
*
(Approved by the Office of Management and
Budget under control number 2126–004)

8. Add a new § 391.53 to read as
follows:

■

§ 391.53

Driver Investigation History File.

(a) After October 29, 2004, each motor
carrier must maintain records relating to
the investigation into the safety
performance history of a new or
prospective driver pursuant to
paragraphs (d) and (e) of § 391.23. 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.
(2) This data must only be used for
the hiring decision.

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Federal Register / Vol. 69, No. 61 / Tuesday, March 30, 2004 / Rules and Regulations

(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
alcohol and controlled substances
history as required under § 391.23(d).
(2) A copy of the response(s) received
for investigations required by
paragraphs (d) and (e) of § 391.23 from
each previous employer, or
documentation of good faith efforts to
contact them. The record must include
the previous employer’s name and
address, the date the previous employer
was contacted, and the information
received about the driver from the
previous employer. Failures to contact a
previous employer, or of them to
provide the required safety performance
history information, must be
documented.
(c) The safety performance histories
received from previous employers 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.
(d) A motor carrier must make all
records and information in this file
available to an authorized representative
or special agent of the Federal Motor
Carrier Safety Administration, an
authorized State or local enforcement
agency representative, or an authorized
third party, upon request or as part of
any inquiry within the time period
specified by the requesting
representative.
(Approved by the Office of Management and
Budget under control number 2126–004)
Issued on: March 22, 2004.
Annette M. Sandberg,
Administrator, Federal Motor Carrier Safety
Administration.
[FR Doc. 04–6793 Filed 3–29–04; 8:45 am]
BILLING CODE 4910–EX–P

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Parts 380 and 391
[Docket FMCSA–97–2176]
RIN 2126–AA08

Minimum Training Requirements for
Longer Combination Vehicle (LCV)
Operators and LCV Driver-Instructor
Requirements
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Final rule.
AGENCY:

SUMMARY: The Federal Motor Carrier
Safety Administration (FMCSA)

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establishes standards for minimum
training requirements for the operators
of longer combination vehicles (LCVs)
and requirements for the instructors
who train these operators. This action is
in response to section 4007 of the
Intermodal Surface Transportation
Efficiency Act of 1991, which directed
that training for the operators of LCVs
include certification of an operator’s
proficiency by an instructor who has
met the requirements established by the
Secretary of Transportation (Secretary).
The purpose of this final rule is to
enhance the safety of commercial motor
vehicle (CMV) operations on our
Nation’s highways.
EFFECTIVE DATE: June 1, 2004.
FOR FURTHER INFORMATION CONTACT: Mr.
Robert Redmond, Office of Safety
Programs, (202) 366–9579, Federal
Motor Carrier Safety Administration,
U.S. Department of Transportation, 400
Seventh Street, SW., Washington, DC
20590. Office hours are from 8:30 a.m.
to 5 p.m., EST, Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION: Sec.
4007(b) of the Motor Carrier Act of 1991
[Title IV of the Intermodal Surface
Transportation Efficiency Act of 1991
(ISTEA), Public Law 102–240, 105 Stat.
1914, 2152; 49 U.S.C. 31307] directs the
U.S. Department of Transportation
(DOT) to establish Federal minimum
training requirements for drivers of
LCVs. The ISTEA also requires that the
certification of these drivers’ proficiency
be accomplished by instructors who
meet certain Federal minimum
requirements to ensure an acceptable
degree of quality control and
uniformity. Sec. 4007(f) of the ISTEA
defines an LCV as ‘‘any combination of
a truck tractor and 2 or more trailers or
semi-trailers’’ that has a gross vehicle
weight (GVW) greater than 80,000
pounds (36,288 kilograms) and is
operated on the Interstate Highway
System. This final rule implements the
requirements of Sec. 4007.
Background
In the early 1980s, the Federal
Highway Administration (FHWA)
determined that a need existed for
technical guidance in the area of truck
driver training. FHWA is the
predecessor agency to FMCSA within
DOT. Research at that time had shown
that many driver-training schools
offered little or no structured curricula
or uniform training programs for any
type of CMV.
To help correct this problem, FHWA
developed the Model Curriculum for
Training Tractor-Trailer Drivers, issued
in 1985 (GPO Stock No. 050–001–

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00293–1). The Model Curriculum, as it
is known in the industry, incorporated
the agency’s ‘‘Proposed Minimum
Standards for Training Tractor Trailer
Drivers’’ (1984). The Model Curriculum
is a broad set of recommendations that
incorporates standardized minimum
core curriculum guidelines and training
materials, as well as guidelines
pertaining to vehicles, facilities,
instructor hiring practices, graduation
requirements, and student placement.
Curriculum content includes the
following areas: basic operation, safe
operating practices, advanced operating
practices, vehicle maintenance, and
nonvehicle activities.
The Professional Truck Driver
Institute (PTDI) was created in 1986 by
the motor carrier industry to certify
training programs offered by truck
driver training schools. Originally
named the Professional Truck Driver
Institute of America, the group changed
its name in November 1998 to reflect the
addition of Canada to the organization.
PTDI derived its certification criteria
from the Model Curriculum, and, in
mid-1988, began certifying truck-driver
training programs across the country. As
of February 2003, approximately 64
schools in 27 States and Canada have
received the PTDI certification.
Although many schools have a number
of truck driving courses, most have only
one course that is certified by PTDI.
The Commercial Motor Vehicle Safety
Act of 1986 (CMVSA) (49 U.S.C. 31301
et seq.), although not directly targeted at
driver training, was intended to improve
highway safety. Its goal was to ensure
that drivers of large trucks and buses
possess the knowledge and skills
necessary to operate these vehicles
safely on public highways. The CMVSA
established the commercial driver’s
license (CDL) program and directed the
agency to establish minimum Federal
standards that States must meet when
licensing CMV drivers. The CMVSA
applies to virtually anyone who
operates a commercial motor vehicle in
interstate or intrastate commerce,
including employees of Federal, State,
and local governments. As defined by
the implementing regulation, a CMV is
a motor vehicle or combination of motor
vehicles used in commerce to transport
passengers or property if the vehicle
meets one or more of the following
criteria:
(a) Has a gross combination weight
rating (GCWR) of 11,794 or more
kilograms (26,001 or more pounds)
inclusive of a towed unit with a gross
vehicle weight rating (GVWR) of more
than 4,536 kilograms (10,000 pounds).
(b) Has a GVWR of 11,794 or more
kilograms (26,001 or more pounds).

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