Attachment J - NPRM entitled "Safety Performance History of New Drivers"

10548

Federal Register / VoI. 61, No. 51 / Thursday, March 14, 1996 / Proposed Rules

Federal Highway Administration
49 CFR Parts 382,383,390,and 391
[FHWA Docket No. p

RIN 21254066

Safety PerformanceHistory of New
Drivers

Federal Highway
Administration (FHWA). DQ".
*
ACTIO)(: Notice of proposed rulemaking
(NPRM); request for comments.
AGENCY:

suuIyARv: The FHWA pmposee to

amend its regulations to speCg.

minimum safety information that new
and prospective employers must seek
&om former employers during the:
investigation of a driver's empioyment
record. This noticeof pmposwi '
ruknneking (NPRM) ala0 p"sto
i n c " the period of time for whichumiemmuat m r d agcidont
iniormation in theaccident registar h
one to three yeam. This proposal is
m a m i d by d o n 114 of the
~~Meterial,Thrnsportatfaa
Authorizstiorr Act 4 1994 (H&&f& Acth
Tha p"i
would "rw thab
employera w d d be cognizant of -

&tical informatian C O U C . 8~ ~ ~
drhdr prior safety peribnnance, w b i k
also affordinethe driver the opportunity
to miow and commenton &a&
infarnmtiOAW Commentsmust be m w i d on
01before May 13, IS=.
~ A u s i ~ w r i t t e n
commauts should^ tu the docltet
number that appears at the
of
thir document and must be submitted to
the Docket Clerk Room 4232, officeof
the Chief Counsel, Federal Highway
Administration. 400 Seventh Street
SW., Washington, DC 20590. All
comments received will be available for
examination at the above address f"
8:30 a.m. to 330 p.m., 6.L. Monday
through Friday,except Federal holidap
Those desiring notification of receipt of
comments must include a self.
addressed. stamped postcard or
envelope.

-w

FoARlFlTHERvyoFIyATlQN~~MS.

Valerie Height,Office of Motor Carrier
Research and Standards. (2021 366

Federal Register

’01. 61. No. 5 1 I Thursday, March

1.2.

3 i Proposed Ruies

10549

for which carriers must record and
retain accident information in an
accident register from one to three vears
and require that the information in the
accident register be provided to a
subsequent employer in response to a
request made during an employment
investigation.
Part 382 would also be amended to
incorporate the drug and alcohol
provisions of section 114 of the HazMat
Act. Consistent with 5 391.23(c),
S 382.413 would be amended to require
employers to investigate whether a
driver failed to undertake or complete
rehabilitation or violated the
prohibitions in subpart B of part 382.
Employers subject to part 382 would
also be required to obtain infomation
concerning whether a driver violated
the drug and alcohol rules of other W T
agencies as well as the prohibitions in
subpart B of part 382. Other conforming
changes are proposed for part 382 that
do not affect 0 391.23(c) and are
discussed in greater detail under the
section entitled “Conforming changss to
Part 382.”
ApplicPbilig
Motor carriers subject to pint 391
would be r e q u i d to investigate the
specitic sa%@ information pmpowd f k
5 391.23(c). They wouki%w”phd to
obtain informatfon relati* te a driwr’s
accident sxperisece and hound.
seMcsvioJstiom k n a l M the driver‘s
moter aurferemplepm during the
precedingtfita,yearaTheabIsdor.
calTiereH4)ddaldObetequjrsdta.
request ceIfain d r u g ‘ d ekohof:

employers that are motor carriers.
‘Although section 11.) states that the
requests for the safetv information must
be made to “Former employers,” only
motor carriers and persons who operate
CbIVs must comply with the
requirements of 49 CFR Part 391. Thus,
e.t., Monday through Friday, except
the proposed inquiry requirements of 49
Federal holidays.
CFR 391.23 would only apply to former
SUPPLEMENTARY INFORMATION:
employers that are (or were) motor
carriers.
Background
Section 114(a)(2)of the HazMat Act
The FHWA is initiating this
requires
former employers to respond
rulemaking in response to section 114 of
within 30 days to requests for safety
the HazMat Act. Public Law 103-311,
information on a driver. Section
August 26. 1994, 108 Stat. 1677. Section
391.23(c) requires the motor carrier to
114 directs the FHWA to amend its
make this investigation within 30 days
regulations to require a motor carrier to
of hiring the driver. To avoid prolonging
request from previous employers
the employment investigation process to
specific safety information when
60 days (up to 30 days for the motor
investigating a driver’s employment
carrier to initiate the investigation plus
record pursuant to 49 CFR 391.23. The
up to 30 days for former employers to
former employers would be required to
respond). the FHWA proposes to clarify
respond to such requests within 30
5 391.23(c) to require a motor carrier to
days. The driver would be afforded an
commence the investigation as soon as
opportunity to review and comment on
possible, but not later than 30 days after
any information obtained from a former
is
hiring the driver. Section 391.23(~)(2)
employer.
added to require former employers to
Currently, 5 391.23(aH2) of titie 49 of
provide the information in 5 391.23(~)
the Code of Federal Regulations (CF’R)
within 30 days of receiving the requ&.
requires motor carriers to make “an
The former employer’s 30-day response
investigation of the driver‘s emploplent
period coaunences fmm the postmarked
record during the preceding three
date on a mailed request, the date of
years,’’ without specifying the typs of .
transmission on a facsimire request, or
information to be sought. The current
the date that the former employer was
regulation does not require a former
contacted for a personal or teiephone
employer to respond to the new and
interyiew. The 30-day period refers to
prospective employer‘s inquiry. For this calendar days and includes weeke~db
reason, former employers may refwe to
and kolidays. The 3Q-dey response
respond to such requests, and new and
period conciudss as e€the date of
prospective employers m, thmfom,
postmark on a mailed respom, date of
unable to obtain important safety
infomutien from employersthak
transmidon on a faahnile response. or
information about the driver.
employed ?Eedrivorm operate a
the datuthat the former emphyer
The FHWA proposes to amend 4 9 . . commsrdal motor vehccie KMW
provides the information in a p e m n d
CFR parts 382,383,390, d 391 ta
requiringa c o “ c h l driver’s licma” or telephone interview.
((=DL1 U n m 383 concsrning events. Undcr these proposed regutatima the
incorporate the changes mandafed by
driver would be given a reasonable
the HazMat Act. Seetion 391.23 wod&
that oc
d**PJ-w3threQ
be amended to require a motor carrier ttx yearr The SDurCs af the S39l23(C)drag opportunity to review and comment oaany information obtained during the
obtain, for the preceding t h r e a y m .. . and alcohol infonnatioahas beau
overall employment investigation. The
limkdtomotorcarrienl”,der:
period, information about a driver’smotor carrie~w d d be r e q M to
&ia part, the FHWA d y hns authority
accident record, hours-of- servim- .
notify the driver applicant of such right
violations resulting in an out-of-serrri*.- tofaquiraaresponmhmthesrwhen applyi
employem e.
and prospective
order, violations of the prohibitionsin
~
?
~ in
~
The items ~
employers would only be requiredto
subpart B of part 382. and Eaihrre te
s 391.23(c) am minimum safety
undertake or completsa mbabilltatioa , investigatb tho d r u ~and alcohol
indicators that would be investigated
informatian for driven who opemted a
program recommended by a subdance
under 391.23,in addition to g e n e d
(=Mv reqPiringa(=DLwithinthe
abuse professional (SAP)under
employment information. The specified
S 382.605. Former employers wouldbe precediq three yeam because only
information should not necessarily bsthese driverrare subject to the
382
required to respond within 30 day8 to
regarded as an exclusive list of the
drug aud alcohd teatingapragram
such requests. Drivers would be
information that would be obtained
Under 5 391.23, motor carriers may
afforded an opportunity to review and
during the driver’s employment record
q u e s t general employment
comment on this information.
investigation. Employers would be
information horn MY employer who
Conforming changes would be made to
allowed to continue to investigate,
Sf 383.35(0 and 391.21(d) to reflect the hired the driver within the preceding
generally, an applicant’s employment
three years. The FHWA proposes t o
driver applicant’s right to review and
record. Employers who are subject to
comment on information obtained from require that new aqd prospective
part 382 would also be required to
employers request the safety
previous employers. To facilitate
information required under section 114 obtain the information required by that
information exchange, 5 390.15 would
part (seethe section entitled
of the HazMat Act only of previous
be amended to expand the time period

1 7 9 0 . or \Is, Grace Retdv. Officeof the
Chief Counsel. (202) 366-0834. Federal
Highwav Administration. Department of
Transportation, 400 Seventh Street,
SW., Washington. DC 20590. Office
hours are from 7 : 4 5 a.m. to 4:15 p.m..

+

.

....... .

_.

o

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Federal Register I Vol. d l , NO. 5 1 I Thursday, March 14, 1996

I

.reposed Rules

defined in 49 CFR 571.3 of this title) by
a motor carrier and is not transporting
passengers for hue or hazardous
materials of a type and quantity that
require the motor vehicle to be marked
or placarded in accordance with 49 CFR
177.823 of this title.
“Disabling damage” is d e b e d in
5 390.5 as “damage which precludes
departure of a motor vehicle from the
scene of the accident in its usual
manner in daylight after simple
repairs.” This includes “damage to
motor vehicles that could have been
driven but would have been further
damaged if 80 driven.” However, 5 390.5
provides that disabling damage does not
include(il Damage which can be remedied
temporarily at the scene of the accident
without special tools or parts.
(ii) Tire disablement without other
damage even if no spare tire is available.
(iii)HeadIamp or taillight damage.
(iv) Damaga to turn si@,
horn, 01:
windshield uiiper~.
which makes them
in0 erative.

the accident occurs. Each of the actions
put into effect by the February 2,1993,
final rule is based upon the uniform
Specific Minimum Safety Information
definition of the term “accident.”
To Be Sought When Investigating the
Therefore, the FHWA proposes to
Driver’s Employment Record Under
restrict the accidents investigated under
5 391.23
8 391.23(c)(l)(i)to those accidents
Under S 391.23, motor carriers would
defined in 5 390.5 so that (I)the
be required to request the following
relationshp between the definition of
safety information from a motor carrier
an accident and the actions
employer who, within the preceding
accomplished by the February 2.1993,
three years, hired the driver to operate
finalrule is maintained and (2) motor
a CMV:
carrier employers may comply with the
1. Accidents (as d e h e d in 5 390.5) in
HazMat Act requirements without
which the driver was involved during
undue burden or confusion.
the past three years: and
To facilitate implementation of the
2. Hours-of-service violations that
accident information requirements. the
resulted in an out-of-service order being
FHWA also proposes to broaden the use
issued to the driver during the past
of the accident register. Currently, the
three years.
accident register m a y be used to assist
Motor carriers would also be required
investigations and special studies
to request information regarding the
conducted by representatives or special
following safety violations from an
agents of the FHWA. The FHWA
employer who, within the preceding
proposes to encourage motor carrim
three years, hired the driver to operate
also to use it when reSponding to a new
a (=Mv requiring a CDL under part 383:
or pmspective employer‘s request for
3. Failure of the driver to undertake
information
about a driver applicant’s
or complete a rehabilitation program
?%eFHWA proposes that only
accident recod
prescribed by a substance abuse
accidents, as defined in f 390.5, b
The F”WA p r o p a m to extend the
professional pursuant to S 382.805
investigated ioaead of “any motor
periodof titw that the w
e
r must be.
during the past three years; and
vehicle accidemb” 8, stated in the
retained fmmezrs to threeyeers
4. violations of the
bitiona in
Harrhd.t Act for thsfohwingmasonr,
Extbnding.theretell~oftperioata~
subpart B of part 382 unng the past
mnt, the FhdCSR’s &5litirl=&%
three years.
“ h t ” C o e in4s CFB 39025 is years would enaLlsa motor carrier
employing a driver for three or mom
A discusSionof each of the minimum not as all iarclusiva as “my motor
ysan t a provide an accident history to
safety indicators followr
vehicle accident”; andtha FMCSR+a
a subsequent employer fot the entirs
debition0 a ply to prrS 39h secriop,
Accidents
390.15 aksa y ”8m
e
8carrim t o periodrequiredbytheproposedrula.
The m A PrOposSS to r9qUiM 0.u
retain arscot.doC“PEddents”ardeaned This propoerl t Q r s q h inquiries of
and prospective employers t o
former employers would not set aside
..
in 9 390.5, El”a
-gthetena
investigate accidenta occudng wiW
the
motor.carrier’s
andhility to
“
a
c
d
e
n
t
”
toincluds
oasm”
the preceding threa yem involving e
investigate a driv.rY%viq record
driver applicant. An accident is dssned beyond thors d t “ d in 5 390.5
’ under
39%.23(aWl).Motor carrimam
would m a b ita ddhitimr inco“&
in $390.5 as follows:
still
q
u
i d to inquire about a driver’s
withths NatioarlGo~Enus’
[Aln occurrence involving a
drivhg recordh m the appropriate
commercial motor vehicle operating on A s a a d r t i a n ~ d s 6 l n i t i a n m d
SW agepEy.in accdance with
a public road in interstate or intnrrt.t.- wouldcthrrrabm,skew the dam
C M t d n S d i n ~ S ~ S y s t e m .5 391.23(a)(11. Accident infarmation
commerce which d t s bS u c h a r c i r m c a v l d ~ ~ y obtained Lom previous employers
(i) A fatality
supplement any infarmation
i a c r s r # t b p ~ b u r d a r ~ would
:
(ii) Bodily injury to a penon who. aa
from State agencies and. themfare.
uparrths motor d e s industry. ’Ilbs
a result of the injury, immediately
provide a more comprshensive safety,
FHWA p u b l i a h d a ” b I a~
receives medical treatment away h r n
pmHe of the driver.
Febnray 3,1993. in tba Faiarat
the scene of the accident; or
H o ~ f - s e d c Viuiatiwu
e
Rasulting
(58 FR 6729).which (iii) One or more motor VUin aBout-oEsanica 0rd.r
incurring disabling damage an 8 d
t of incorporated int0.hFMC!jRa the
The R l W A considers a d r i w d s h o w
accident definition recommenderkin the
the accident, requiring the motor
of-service violstions to be a major d t y
vehicle to be transported away from the NGA study entitled; “Truckand Btu
Accidents: Getting the Fa-’’ (1990). Im indicrtor. The FHWA would q&
scene by a tow truck or other motor
that 6nal rule, the FHWA e l i “ t d the. this information to be included in the
vehicle.
requiremenbthatmotor carriem submit em l o p m a r investigation under the
Section 390.5 provides that the
accident reports to the FHWA and. a u i o n t y in Section 114&)(4 Of ths
definition of an accidedt does not
n o m the agency telephonically of tapl HazMat Act that authorim “any ohm
include the following:
matten determined by the
of
accidents, adopted a new accident
(i) An occurrence involving only
Transportation to be appropriate and .
-(
boarding and alighting from a stationary reporting systems
useful for determining the driver’s
Accident Module) which collects
motor vehicle: or
information from poiice accident reports safety performance.” to be a part of the
(ii) An occurrence involving only the
investigation. Drivers who violate the
and incorporatesthe NGA accident
loading or unloading of cargo: or
hours-of-servicerules often have
reporting data elements, and required
(iii) An occurperice in the course of
insufficient rest to safely operate a CMV.
motor
carriers
to
maintain
a
register
of
the operation of a passenger car or a
The fatigue and loss of alertness
accidents for a period of one year after
multipurpose passenger vehicle (as

“Conforming Amendments to Part
382”).

P

x

I

Federal Register

Vol. 61. No. 51 I Thursday, March 1 4 ,

resulting from insufficient rest may
place them and other hlghway users at
higher risk. This information, therefore,
will help new and prospective
employers identify potentially unsafe
drivers.
Failure to Undertake or Complete Drug
or Alcohol Rehabilitation
The FHWA proposes to amend
5 391.23 so that motor carriers would be
required to investigate whether, within
the preceding three years, a driver failed
to undertake or complete a
rehabilitation program pursuant to 49
U.S.C. 31306 after having been found to
have used drugs or alcohol in violation
of law or Federal regulation. (Section
114(b)(2)of the HazMat Act incorrectly
references 49 U.S.C. 31302 in
addressing this issue: the drafters of the
Act clearly intended to reference the
rehabilitation program under section
31306. This intention is evidenced by
earlier versions of Senate Bill 1640 that
relate the rehabilitation program to
section 12020 of the Commercial Motor
Vehicle Safet Act of 1986.)
Under 49 d S . C . 31306. the Secretary
of Transportation is directed to
“prescribe regulations establishing
requirements for rehabilitation programs
that provide for the identification and
opportunity for treatment of operators of
commercial motor vehicles who am
found to have used alcohol or a
controlled substance in violation of law
or a Government regulation.” The
regulations implementing the
rehabilitation requirements oisection
31306 appear in 49 CFR 382.605 and
apply generally to drivers of W
s with
a gross vehicle weight rating (GVWR)in.
excess of 26,000 Iba.. vehicles
transporting hazardous materials which
are required to be placarded, or vehicles
designed to transport more than 15
passengers, including the driver. Part
382 contains alcohol and drug ruler
pertaining to motor carriers and
provides procedures and regulations for
referring drivers who violate its
prohibitions to a SAP,to determine
what, if any, rehabilitation progamsam
needed to resolve probIems associated
with alcohol misuse and substance
abuse. Section 382.501(b)also prohibits
an employer From using a dn-ver who
was found to have illegally used drugs
or alcohol in a safety-sensitive function
until that driver has received the
recommended treatment.
The amendments proposed under
5 391.23(c)(l)(iii)and (iv) would better
enable a motor carrier that operates
CMVs with a GVWR between 1O.OOO
and 26.000 Ibs. in interstate commerce
to comply with 382.501(b). Although
such a n employer is not subject to the

entire part 382, he or she may not use
a driver in safety-sensitive functions,
including driving a CMV, i f that driver
has been found to have illegally used
drugs or alcohol until that driver has
received the recommended treatment.
Section 391.23(c)(l)(iv)would require a
motor carrier to investigate whether a
driver had illegally used drugs or
alcohol within the previous three years.
Section 391.23(c)(l)(iii)would require a
motor carrier to determine whether a
driver had failed to undertake or
complete recommended treatment after
having been found to have illegally used
drugs or alcohol. This information
would assist the motor carrier that is not
subject to part 382 in determining
whether a driver was qualified to
operate a CMV.
Determining whether a driver
completed rehabilitation may not
always be a straightforward process.
Section 382.605(b) requires employers
to refer CDL holders violating the
prohibitions of part 382 to a SAP. The
S A P must determine what, if any,
assistance the driver needs in resolving
problems associated with controlled
substance use and alcohol misuse. If a
S A P refers a driver to a rehabifitation
program, the employer may not use that
driver in a safety-sensitive fimction
until assured that the driver has
complied with the treatment
recommended by the SAP.The
employer is required tu maiintain
pBcor(tS p&&lhg t0 E S A P S ’
determination concerning a drivsr’s
need for assistance and records
conceminga driver‘s compliance with
the SAP’S recommendations. E m if a
SAP does not refer a driver to a
rehabilitation program, the employer is
still required to maintain a record of the
SAP’S evaluetion.
However, if a driver @trr wUrkin8 fSr
the employer bedore seeing a SAP or
undertaking or completing
rehabilitatim. that employer is not
l w p e d to BI1suIB that the driver
compietes the SAP reference and
evaluation rocem. An employer is only
using the driver in a
prohibited
safety-sensitive function until the driver
compliea with a SAP’S
recommendations. If the driver
terminates employment before the SAP
evaluation or rehabilitation, the
employer may not know if rehabilifation
was undertaken, completed or even
recommended. A new or prmpective
employer would also have no evidence
that the driver complied yith the SAP’S
recommendations.
Therefore, to comply with this
requirement, a new employer would
have to investigate whether (1)the
driver was ever referred t o a SAP, (2) the

bm

16 I Proposed Rules

10551

SAP referred the driver to a

rehabilitation program, and (3) a SAP’S
evaluation certified the driver was
qualified to return to duty.
Violations of the Prohibitions in
Subpart B of Part 382
Section 114(b)(3)of the HazMat Act
mandates the investigation of “any use
by the driver, during the preceding 3
years, in violation of law or Federal
regulation, of alcohol or a controlled
substance subsequent to completing
such a rehabilitation program.” This
mandate requires that a motor carrier
determine whether a driver continued to
abuse alcohol a n d o r a controlled
substance subsequent to treatment for
such abuse. Section 114(b)(4)authorizes
the Secretary to include in the required
information other matters that are
appropriate and useful to determine a
driver’s safety record. In conjunction
with Section 114(b)(3).the FHWA
proposes to execute the authority
granted in Section 114(b)(4) to clarify
and enhance the substance abuse safety
information requirement.
Under f 391.23, the FHWA proposes
to require that only violations of the :
prohibitions listed in 49 CFR Part 38Z
subpart B. be required as reportable
violatiom of “law or Federal regulatim.
of alcohok or a controlled substancs.”
pursuant-tosection 114(b)(3). It is
impractical fm the M A to enforce a
rule requiring a motor carrier to
investigated1 ill& uses of drugs and
alcohol The statutory language. “in
violation of law or Federal regulation,”
is broad and includeusdrug and alcohol
use in violation of State, Federal. or
1 4 law or Federal regulation. A
previous employer may have knowledge
of whether a driver used drugs or
alcohoL “in violation of law or Federal
regulation,” but. under this part, the
FHWA could only require employers
subject to its regulations to provide it.
Mast employers may not willingly
respond to such mquests for fear of a
lawsuit by the driver.
It is mom feasible to clarify the term.
“in violation of law or Federal
regulation,” to mean violations of the
prohibitions i a subpart B of part 383Subpart B contains drug and alcohol
regulations that pertain to CMV
operators. Transmission of the required
information will be aided by the fact
that employers subject to part 383
already maintain a record of a driver’s
violations under part 382.
The FHWA also proposes to utilize
the section 114(b)(4) authority to require
that all part 382. subpart B. violations
occurring within the previous three
years be transmitted to the inquiring
motor carrier from the previous

10552

Federal Register I C

employer. This requirement expands the
provision that required violations
occurring subsequent to rehabilitation
be transmitted to the motor carrier
requesting the information. The FHWA
believes that a three-year period, as
specified in section 1141b) for other
required information, is in accordance
with the intent of the HazMat Act to
grant new and prospective employers
sufficient knowledge about safety
histories of drivers.
Extending the reporting period to
three years is also efficient because it
may be difficult to determine when
rehabilitation was completed. Many
times when a driver is found to have
illegally used drugs or alcohol, an
employer provides the driver a list of
SAPS. terminates the driver’s
employment, and makes a record of the
referral. In this case, the employer
would not know whether rehabilitation
was recammended or completed, nor is
he or she required to know. Thus, it
could be very difficult, if not
impossible, for a new or prospective
employer to ascertain when
rehabilitation was recommended or
com p leted.
Removing the “after rehabilitation”
limitation would satisfy the intent of the
HazMat Act within the authority
granted FHWA and enable motor
camers to more easily impiement the
requirement. A new or prospective
employer would only be required t a
know whether, during the past three
years, the driver operated e CMU
requiring a CDL under part 383. t o
determine whether this information,
must be obtained. If so,the motop CaRibl
would be required to seek the
information only from employers that
hired the driver to operate a CMV
requiring a CDL under part 383 dðe past three years.
The Driver’s Written Consent for IYrug
or Alcohol Information
Part 382 requires that drug and
alcohol information pertaining to a
driver be released pursuant tothe ternw
of the driver’s written conwnt. Far this
reason, the FHWA proto add
391.23(e)to similarly requira.
employers to request the dmg and
alcohol information pursuant to thedriver’s written consent. Thus,
employers could avoid processin8
delays caused when the q u e s t is not
accompanied by the driver’s written
authorization.
Driver’s Right to Review and Comment
on Information
The motor carrier must allow the
driver a reasonable opportunity to
review and comment on any safety

61, No. 51 f Thursday, March 14, 1996

Proposed Rules

information obtained. This proposal
does not define “a reasonable
opportunity” but proposes to leave this
to the motor carrier’s discretion. We
invite public comment on whether it is
necessary for the FHWA to define what
constitutes “reasonable opportunity”
and include a specific time frame for
compliance.
The driver’s right to review and
comment on the information is clearly
established by section 114(a)(3)of the
HazMat Act. The FHWA believes that
the motor carrier should inform the
driver of this right when the application
for employment is completed. The
driver’s comments, if any. could be
made orally or in writing. However, the
motor carrier is not responsible for
correcting any information obtained.
The driver should contact the former
employer to settle disputes over
allegedly incorrect information.
Conforming Amendments to Part 382
Because much of the information
mandated by section 114 of the HazMat
Act is similar to information currently
shared by employers under part 382,
conformingchanges are being proposed
for Sf 382405 and 382.413 to ensure
with the HazMat ActAccordin y. f 382.413 would be
amended to require M employer to seek
information f“former emplayers
regding (I) a driver‘s failure,during
the precedina three years, to undertake
or complete a rehabilitation
after beins found to have vi0p“Ip“
ated
alcohol or controlled substances laws or
reguletio~,and (21 any use by the
driver, during the pmcedingthnw,years,
of alcohol or a controlled substanca in
violation of 49 CFR Part 382,sub’part B
or the rules of other M3T ndes. The
congressianalmandntein eHazMat
~ cquires
t
that tbis information be
released by former employers within 30
days, andathatthe driver to whom the
informationapplies would have a
reasonabls op

occurred after completing rehabilitation.
Section 382.413(a)would be revised to
include all violations of subpart B by a
driver, not just testing vlolations. In
addition, based on the authority granted
by section 114(b)(4)of the HazMat Act,
which empowers the Secretary to
include other matters “appropriate and
useful for determining a driver’s safety
performance”, such violations would
continue to include, but not be limited
to. those occurring after rehabilitation.
The FHWA believes that all violations
of the prohibitions in part 382 are
important indicators of the driver’s
safety performance.
The information required by section
114(b)(2)of the HazMat Act relative to
a driver’s failure to complete
rehabilitation (already required
implicitly by 5 382.413@))which must
be obtained before a violator may be
permitted to return to driving would be
listed as a separate item in
5 382.413(a)(l)(ii).
It should,be noted that the records
required to be obtained under 5 382.413
would be limited only to those records
generated under part 382 and the
alcohol a d drug t e s t i q le^ of other
DOT agenciee after January 1,1995.
interstate mobr &en must maintain
their records, generatee under part 391,
for the peaiodaof timespecified in
f 382.401. Because of the significant
dif6arence between the testing pmgrams
in parts 382 and 391, the FHWA would
not requim new or pmspedive
employerato obtain the information
maintained by former employers prior
to W u a q 1,1985, for large employers,
.and Jmuary1.1996, for smallem loyers. h e f 382.413(il
&her amendments am necessary to
conform 49 Cl% part 382 to the HazMat
Act. First. §382.413(a)(l)(i) would
extend the perid of shared information
from two to threeyean. Second,
5 382.413Ih) would afford drivers a
reasonable opportunity to review and
comment on any inform&‘onobtained
by new or prospective employers undec
comment on
infomation.
toreview
Section 382.413, as currently written. 5 382.413(a)(l). Third, 5 382.405(0
requirea much of the same information would a h w former employers 30 days
to respond to requests for information.
to be shared between new and
The amendment to 5 382.405(0
prosyctwe employers and former
recognizes that a great majority of
emp oyers as proposed in this action.
requests for testing information from
Section 382.413 require8 the sharing of
information on certain violations of part former employers will OuNr pursuant to
5 382.413. There is no reason for two
382: positive drug test results, alcohol
results of 0.04 alcohol concentration or standards for response periods. The 30day response period provided in the
greater, and refusals to be tested.
HazMat Act for information muma to
Section 114&)(3) of the HazMat Act is
former employers would be made a
both bmader and n m w e r than part
general standard in S 382.405(0. thus
382’s requirements since section
applying to a l J requests for
and
114(b)(3) mandates the sharing of
alcohol testing information from
information on all prohibited uses of
drugs and alcohol by drivers. but limits employers. Of course, employers may
only disclose a driver’s drug and alcohol
the inquiry to those violations that

c0nsisten3

r

re

I

Federal Register I Val. 61, No. 51 I Thursday, March 14, 1996 I Proposed Rules
records under part 382 pursuant to the
driver’s written consent.
The current 14-day limit for new
employers to obtain the information
after first using a driver, when not
feasible to do so before using the driver,
would be extended to 30 days.
Employers would be required to request
the information from former employers
as soon as the employer expects to use
o r hire the driver to drive or perform
other safety-sensitive functions. The 30day period should be sufficient to
accommodate information requests and
responses made by mail. Although there
is no requirement that the inquiries and
responses be processed by mail, the
prudent employer may wish to employ
the faster and confidential
communication methods authorized in
5 382.413(e) to meet the 30-day time
limit requirement.
Part 382 would continue to require, if
feasible, the employer to obtain the
information prior to the first
performance of safety-sensitive
functions by a driver. If obtaining the
information prior to the driver’s first
performance of safety-sensitive
functions for the employer is notfeasible, the information would have t o
be obtained as soon as possible, but no
more than 30 days after first using the
driver to perform safety-sensitive
functions.
Beyond incorporating the HazMat Act
requirements into part 382, the source of
the violations enumerated in !j382.413
would also be amended to include alf
DOT agencies’’ alcohol and controlled
substances regulations. The FHWA
believes that some drivers may apply for
positions that require driving CMVs
after they have violated the alcohol or
drug use prohibitions of another DOT
agency. The FHWA has, therefore,
included a requirement that employem
request information from all past
employers for which a driver worked in
a position covered by the alcohol and
or drug prohibitions and testing
requirements of another DOT agency.
This would ensure that person^
applying for positions that require
operating a CMV would have all of their
relevant records of violations
investigated. It would also ensure that
persons who test positive are evaluated
by a SAP. and, before returning to
perform safety-sensitive functions,
complete a recommended rehabilitation
program.
Section 382.413(a)(2) was
incorporated into the FMCSRs by a final
rule published in the Federal Register
o n March 8,1996, (61 FR 9546). That
action allows previous employers to
include information obtained from other
previous employers when responding to

requests for a dnver’s drug and alcohol
information under 5 382.413(a)(l),as
long as that information falls within the
previous two- year period. Because the
March 8, 1996, final rule was a technical
amendment. the FHWA was unable to
mandate the requirements now
proposed in S 382.413(a)(2).Such an
action would have made a substantive
change to the regulations requiring
public notice before becoming a final
rule. This notice proposes to mandate
the requirements preposed in
f 382.413(a)(2) in accordance with the
intent of section 114(b)of the HazMat
Act by changing the word “may” to
“shall.”
New and prospective employers
should ensure that the driver’s written
consent authorizes former employers to
disclose all prohibitions listed under
5 382.413(a)(l),that occurred within the
previous three years, of which the
Eormer employer has knowledge.
Otherwise. a former employer may be
prohibited by 5 382.405(0 horn passing
along to the inquiring employer ang
§ 382.413(a)(1) information that was
obtained horn tmdherprevioua
employer. Section 382.405(2) states that
records under part 38Z may only ba
released to a subwguenl employer upon
receipt of written authorization fiwn a
driver. Disclooure of the part 382
recordsby the subsequent employer is
also permitted only as expressly
authorized by the terms of the drivefs
si&
authorization. If the driver‘s
authorization had prohibited the
subsequent employer 6”disclosing
the information, sharingthat
information with the inquiring
employer would be in violation of
5 382.405($

RalQcuLiry-PndNOtjCal

All comments received before t h e
close of businea on the commen)
closing date indicated above w i l l be

considered and will be availabh for
examination in the docket at the above
address. Comments received after the
comment closing date will be filed in
the docket and will be considered to the
extent practicable. b addition to late
comments, the F’HWA will also
continue to file in the docket relevant
information that becomes available after
the comment closing date. Interested
persons should continue to examine the
docket for new material. Nevertheless.
the FHWA may issue a h a 1 rule on this
matter at any time after the close of the
comment period.

10553

Executive Order I2866 (Regulatory
Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this
document does not constitute a
significant regulatory action for the
purposes of Executive Order 12866 or a
significant regulation under the
regulatory policies and procedures of
the DOT. These proposed changes to the
Federal Motor Carrier Safety
Regulations would not cause an annual
impact on the economy of over $1
million. and they would not adversely
affect a sector of the economy in a
material way. These changes would not
create an inconsistency or otherwise
interfere with another agency’s actions,
nor do they raise novel legal or policy
issues. These changes merely
implement a recently enacted legislative
mandate directing the FHWA to amend
its regulations to require a motor carrier
to request from previous employers
specific safety information when
investigating a driver’s employment
record pursuant to 49 CFR 391.23.
Motor carriers are already requir6d b y
section 391.23(a)(2) to make “an
investigation of the driver’s employment
recard during the preceding three
yeais.” These proposed changes merely
specify the types of information to be
sought; increase the period of time for
which carriers must record accident
information h m o n e to three years,
direct former employers to respond to
information requests within thirty days,
and require that drivers be &rdd an
opportunity to review and comment on
any information obtained from a former
employer. Thus. in light of this analysis.
especially the finding that the economic
impact of this action is likely to be
minimal, the F‘HWA has determined
that a full regulatory evaluation is not
required.
Regulatory Flexibility A d
In compliance with the Regulatory
Flexibility Act (5 U.S.C.601-612). the
FHWA has evaluated the effects of this
rule on small entities. It is anticipated
that the economic impact of this
rulemaking on all employen, regardless
of size. will be minimal. This NPRM
proposes to set forth minimum safety
information that new and prospective employen would request when
investigating a driver applicant’s
employment record. Employers are
already required to maintain this safety
information. These amendments would
clarify existing requirements and would
impose only a minor additional
requirement on employers to record and
retain accident information for three
years instead of one. Accordingly, the

10554

Federal Register 1 Vc

FHWA certifies that under the criteria of
the Regulatory Flexibility Act this
action will not have a significant
economic impact on a substantial
number of small entities.
Executive Order 12612 (Federalism
Assessment)
This action has been analyzed in
accordance with the principles and
criteria contained in Executive Order
12622, and it has been determined that
these proposed changes would not
preempt any State law or State
regulation, and no additional costs or
burdens would be imposed on the
States. In addition, these changes would
have no effect on the States' ability to
discharge traditional State governmental
functions. Motor carrier safety is a
matter of national concern to which
Congress has responded by enacting
section 114 of the HazMat Act which
directs the FHWA to amend its
regulations to specify the safety
information a motor carrier must request
from a driver's former employers. Thus.
in light of the importance to the nation
as a whole of ensuring that motor carrier
vehicles are operated by safety
conscious drivers, this Federal action
regarding the safety performance history
of drivers is justified and does not have
sufficient federalism implications to
warrant the preparation of a federalism
assessment.
Executive Order 12372
(Intergovernmental Review)
Catalog of Federal Domestic
Assistance Frogram Number 20.217.
Motor Carrier !Safety. The regulations
implementing Executive Order 12372
regarding intergovernmental
consultation on Federal programs and.
activities apply to this program.
Paperwork Reduction Act
This action would impact existing
collection of information requirements
for purposes of the Papexwork
Reduction Act of 1995 (44 U.S.C 35M3520). It would affect the peMdof
retention for an existing accident 4
keeping requirement, extencfthe period
of inquiry relating to a driver's Slcohd
and controlled substance history, and
require additional information relating
to a driver's employment investigation
under 391.23 to be retained in the
driver's qualification file. Because of
these changes, existing Office of
Management and Budget (OMB)
approvals are being revised.
Motor carriers are required under 49
CFR 390.15 to maintain and retain an
accident register for a period of one
year. That requirement was approved by
the OMB under control number 2125-

61, No. 5 1 I Thursday, March 14, 1996

0526. This NPRM proposes to extend
the period for which the accident
register must be retained from one to
three years under the previous OMl3
authority. Extending the retention
period would enable motor carriers to
satisfy, with an existing resource, the
accident reporting requirements of
section 114(b)of the HazMat Act for the
full three-year period. The information
collection requirements imposed by this
proposed amendment have been
submitted to the OMB under OMB
Control Number 2125-0526 for approval
under the Paperwork Reduction Act.
Section 391.23(c)proposes to require
motor carriers to request from previous
employers information about a driver's
accidents, illegal drug and alcohol use,
failure to complete recommended
treatment for such abuse, and certain
hours of service violations. Currently,
motor carriers are only required to
request general employment
information from the previous
employer. The amendments proposed in
391.23(c) are mandated by Congress
and would ensure that employers are
cognizant of criticalinformation
concerning a driver's safety
performance. The infarmation collection
by these
requirements im+
proposed amendments have been
submitted to the OMB under OMB
Control Number 2125-0065 for approval
under the Paperwork Reductiaa Act.
Similarly, employers of both interstate
and intrastate drivers that must hold
C0"cial
drivers licenses 818
required, under 49 CFR 382.413. to seek
testing information from previoulr
employers for on@ the preceding two
years. OM6 approval for that
requirement waa granted under contml
number 21254543. ThisNPRh4 would
require allmotor d e r 8 ti,request
three years of drug and alcohol testing
information on new driven who operate
in interstate commerce. Therefom,
employuswbject to 49 CFR 382.413
would be required to seek drug and
alcohol information about a driver for
the previous &me years instead 0f two.
Additionally, not just testing
information would be requested from .
former employers. Employers would be
required to obtain information about
violations of the prohibitions of subpart
B of part 382 or the drug and alcohol
rules of another DOT agency or a
driver's failure to undertake or complete
recommended treatment. These
conforming amendments are mandated
by section 114 of the HazMat Act-The
information collection requirements
imposed by these proposed
amendments have been submitted to the
OMB under OMB Control Number
2 1 2 5 4 5 4 3 for approval under the

r'roposed Rules

Paperwork Reduction Act, The FHWA
requests public comment on thesenew
and revised paperwork collection
requirements.
National Environmental Policy Act
This agency has analyzed this
proposed action for the purpose of the
National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.) and has
determined that it would not have any
effect on the quality of the environment.
Regulation Identification Number
A regulatory identification number
(RIN) is assigned to each regulatory
action listed in the Unified Agenda of
Federal Regulations.The Regulatory
Information Service Center publishes
the Unified Agenda in April and.
October of each year. The RIN contained
in the heading of this document can be
used to cross reference this action with
the Unified Agenda.
List of Subjects in 49 CFR 382,383,390,

and 391
Alcohol concentration, Alcohol
testing, Commercial motor vehicles,
Controlled substances testing, Drivers,
Driver qualificatioIEa Highway safety..
Highways and roads, Hours of SeMm r.
Intermodal transportation. Motor
carriers, Motosvehi& saafety, Reporting
and recordkeeping requirements. Safety,
Tmsp~rtati~~.
I

Issued on: March 6.1996.
Rodney E. SIater,
F e d d Highway Administmtor.

In consideration of the foregeag, the
F'HWA proposes to amend title 49, (=FR

subtitle B, chapter m.parts 382,383,
390. and 39t as set forth below:
PART 382-(AlumOEDf

1. The authority citation for 49 CFR
part 382 is revised to read as follows:
.A
49 U.S.C. 31133.31136.31301
et seq., 31502; see. 114, Pub. L. 103-311.108
Stat. 1623.167% and 49 CFR L48.

2. In !j 382.405, paragraph (0 is
revised to read as follows:

8 382.406 Accms to Wlltbs and r " l s
*

*

*

*

*

(r) Records shall be made available,
within 30 days, to a subsequent

empbyer upon receipt of written
authorization from a driver. Disclosure
by the subsequent employer is
permitted onIy as expressly authorized
by the terms of the driver's signed
authorization.
*
*
*
*
*
3. Section 382.413 is revised to read
as follows:

I

Federal Register /
5 382.413 Inquiries for alcohol and
controlled substances information from
previous employers.
(a) (1)An employer, including a
prospective employer, shall, pursuant to
the driver’s written authorization,
inquire about the following information
relating to the driver from the driver’s
previous employers:
( I ) Violations of the prohibitions
contained in subpart B of this part, or
the alcohol or controlled substances
rules of other DOT agencies, during the
past three years; and
(ii) Failure to undertake or complete
a rehabilitation program prescribed by a
substance abuse professional pursuant
to 5 382.605, or the alcohol or controlled
substances rules of another DOT agency,
during the past three years.
(2) The information obtained from a
previous employer must contain any
alcohol and drug information the
previous employer obtained from other
previous employers under paragraph
(a)(l)of this section.
(b) If feasible, the information in
paragraph (a) of this section must be
obtained and reviewed by the employer
prior to the first time the driver
performs safety-sensitive functions €or
the employer. If not feasible, the
information must be obtained and
reviewed as soon as possible, but no
later than 30 calendar days after the first
time a driver performs safety-sensitive
functions for the employer. An
employer shall not permit a driver to
perform safety-sensitive functions after
30 days without having made a good
faith effort to obtain the information as
soon as possible. If a driver hired or
used by the employer ceases performing
safety-sensitive functions for the
employer before expiration of the 30day period or before the employer has
obtained the information in paragraph
(a) of this section, the employer must
still make a good faith effort to obtain
the information.
(c) An employer shall maintain a
written, confidential record of the
information obtained under paragraph
(a) or (fJof this section. If, after making
a good faith effort, an employer is
unable to obtain the information from a
previous employer, a record shall be
made of the efforts to obtain the
information and retained in the driuer’s
qualification file.
(d) The new/prospective employer
must provide to each of the driver’s
previous employers the driver’s specific,
written authorization for release of the
information in paragraph (a) of this
section.
(e) The release of any information
under this section may take the form of
personal interviews, telephone

.

61. No. 51 1 Thursday, March 14, 19

interviews, letters, or any other method
of transmitting information that ensures
confidentiality. The written
authorization for release of this
information may be transmitted to the
previous employer by any method that
ensures confidentiality.
(0The information in paragraph (a) of
this section may be provided directly to
the prospective employer by the driver,
provided the employer assures itself
that the information is true and
accurate.
(g) An employer may not use a driver
to perform safety-sensitive functions if
the employer obtains information on a
violation of the prohibitions in subpart
B of this part by the driver, without
obtaining information OR subsequent
compliance with the referral and
rehabilitation requirements of 382.605
of this part.
(h) An employer shall afford the
driver a reasonable oppoltunity to
review and comment on any
information obtained by the employer
under paragra h (a) of this section. The
employer shal notify the driver of this
provision at the time of application for
employment.
(i) Employers need not obtain
information under paragraph (ar of this
section generated hy previous ,
employers prior to the s,$uthg dates in
§ 382.115 of this pa&

Y

I Proposed Rules

10555

Pub L. 103-311. I08 Stat 1673,1677 and
49 CFR 1 48

7 Section 390.15 is revised to read as
tollows:

5 390.15 Assistance in investigations and
special studies.
(a) A motor carrier shall make all
records and information pertaining to an
accident available to an authorized
representative or special agent of the
Federal Highway Administration upon
request or as part of any inquiry within
such time as the request or inquiry may
specify. A motor carrier shall give an
authorized representative of the Federal
Highway Administration all reasonable
assistance in the investigation of any
accident including providing a full, true
and correct response to any question of
the inquiry.
(b) Motor carriers shall maintain for a
period of three years after an accident
occurs, an accident register containing
at least the following information:
(1)A list of accidents containing for
each accident:
(il Date of accident,
(iil City or town in which or most
near where the accident occurred and
the State in which the accident
O

d

.

*

(iii) Drivername,
(iv) Number of injuries.
(v) Number of fatalities, and
(vi) Whether hazardous materials.
othex than fuel spilled from the fuel
PART 383+MEtdMbJ‘
tanks of motor vehicle(s1 involved in the
4. me authority &tiax
far 49 CER
accident, were released.
part 383 is revisedto mdai follows;.
(2) Copies of all accident reports
A&@
49 U.S.C. 31m. 3 ~ 0 et
r q ; required by State or other governmental
entities or insurers.
and 3 1 1 3 B t - r m l l E
~ ~l58-3%1,108
StaL1673.1677: and 49 (=pR 1.48.
(c] Motor carriers shall m a b
5. In S 3Wi3S. para(paph CfJ is revised available, within 30 days after receiving
a request for information about a
to read as fohws:
driver’s accident record from a new or
$3aa36 NotifftrSkndpmku+
prospective employer, all records and
information within the accident register
*
.
.
*
m
e
that pertain to that driver%accident
OBsfore an appllcstian is submitted record.
thu earployer ah& infosPthe applicant
that the bhnmtion ha/& provides in PART 3Ql--[AMENDEW
a c c o r d m a with paragreph (c) of this
8. The authority citation for 49 CFR
S ~ O mag
R be used. and tbe applicant’s. part 391 is revised to read as follows:
previous employers will be contacted,
Authority: 49 U.S.C. 504,31133, 31136.
for the purpose of investigating the
and 31502;SBC. 114,Pub. L. 103-311,108
applicant’s work history. The employer Stat.1673.1877: and 49 CFR 1.48.
shall also inform the applicant that he/
9. In § 391.21, paragraph Id) is revised
she will be provided an opportunity to
to read as follows:
review and comment on any
infomaation obtained fnun previous
3S
t
2
1 A p p l r c a k n for employment
employers.
n
n
n
n
.
(d)
Before
an
application
is submitted,
PART 39O-(AMENDED)
the motor carrier shall inform the
6.The authority citation for 49 CFR
applicant that the information he/she
part 390 is revised to read as follows:
provides in accordance with paragraph
(b)(lO)of this section may be used, and
Authority: 49 U.S.C. 5901-5907.31132,
the applicant’s prior,employers will be
31133,31136,3l~~2.
and 3l.504;see. 114,

-

J

Federal Register 1

10556

.. 61,

b

contacted for the purpose of
investigating the applicant’s background
as required by 391.23.The employer
shall also inform the applicant that he/
she will be provided an opportunity to
review and comment on any
rnformation obtained from previous
employers.
10. In 391.23,paragraph (c) is
revised and new paragraphs (d) and (e)
are added to read as follows:
9 391.23 Inwstlgatbn and Inquidoa
*

*

*

*

a

(c) The investigation of the driver’s
employment record required by
paragraph (a)(2)of this section must
commence as soon as possible, but no
later than 30 days after the date the
driver’s employment begins. The
investigation shall consist of personal
interviews, telephone interviews, letters
of inquiry,.orany other method of
obtaining information that the motor
carrier deems appropriate. Each motw
carrier must make a written record with *
respect to each previous employer thak
was contacted. The record must indude
the previous employer’s name and
address, the date the previous emplo
was contacted. and its comments wi
shall a’
respect to the driver. The

tr

-

maintainedintheQivsr’squalificadon
file.
(1)The followkginformation. 8.
minimum.mustbeobtainedhall
previous employers that employed t
h
driver to operate a commercial motor
vehicle:
(i) Any accidents,aadeffned by
5 390.5 Of this Subchapter. ill W h i C h t 6 8 .
driver was involved during the
precedingthrseyeen;
(ii) Any hours-of-servio Uiohdom ‘
resuhing in an out-of-servitxorder
being issued.to the drivec within th.
preceding three years
(iii) Any failure of the driver, during.the preceding threa yeus. to undedake::
or complete tt rehabilitation program
pursuant to 382.605. after being foua%
to have used. in violation d law 01
Federal regulation, alcohd or&
controlled substancw
-(iv) Any use by the driwm.
h
preceding three years, in viobtiond
law or Federal regulation. of &OM
or
a controlled substance subsequsnt te
completing such a rehabilitatioa
program.
(2) Previous employers shall res@
to requests for the information in
paragraph (c)(l)of this section within
30 days after the request is received
(d] The motor carrier shall d o r d the
driver a reasonable opportunity to
review and comment on any
information obtained during the
employment investigation. including

.

No. 51 1 Thursday, March 14, 19%

the information described in paragraph
(c)(l)of this section. The motor carrier
shall notify the driver of this right at the
time of application for employment.
(e) The information required under
paragraphs (c)(l)(iii)and (iv) of this
section must be obtained pursuant to
the driver’s written authorization.
[FRDoc. 96-5130 Filed 3-13-96; 8:45 am1
B K u l Q Q # I y 1 ~

-

I

Proposed Rules