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[Federal Register: March 30, 2004 (Volume 69, Number 61)]
[Rules and Regulations]
[Page 16683-16722]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30mr04-20]
[[Page 16683]]
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Part III
Department of Transportation
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Federal Motor Carrier Safety Administration
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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
Driver-Instructor Requirements; Final Rule
[[Page 16684]]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 390 and 391
[Docket No. FMCSA-97-2277]
RIN 2126-AA17
Safety Performance History of New Drivers
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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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 Sec. 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 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.
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\1\ As noted below, FMCSA's definition for the term ``previous
employer'' includes a current employer of the driver applicant.
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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 Sec. 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 Drivers), with
proposed conforming amendments to parts 382 (Controlled Substances and
Alcohol Use and Testing), 383 (Commercial Driver's License Standards;
Requirements and Penalties), and 390 (Federal Motor Carrier Safety
Regulations; General). The agency proposed under Sec. 391.23 that
motor carriers investigate the following minimum safety information 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 Sec. 390.5; (3)
failure to undertake or complete a rehabilitation program recommended
by a substances abuse professional (SAP) under Sec. 382.605; and (4)
any ``misuse'' of alcohol or use of a controlled substance by the
driver after he/she had completed a Sec. 382.605 SAP referral.
The existing Sec. 391.23(b) requirement to make an inquiry for a
driver's driving record(s) from the State(s) was retained. In addition,
to harmonize the proposed Sec. 391.23(e) with then current alcohol and
controlled substances regulations under Sec. 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
Sec. Sec. 383.35(f) and 391.21(d) to reinforce the driver notification
requirement.
Further, the agency proposed under Sec. 390.15 to change the
required retention period for the accident register maintained by motor
carriers from one year to three years, and to begin requiring motor
carriers to provide information from the accident register in response
to all prospective employer investigations pursuant to Sec. 391.23.
These provisions would facilitate the 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
[[Page 16685]]
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 Sec. 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 Sec. 382.413(a). Employers
would be required to investigate whether, in the past 3 years, a driver
had: (1) Violated the prohibitions in subpart B of part 382 or the
alcohol or controlled substances rules of another DOT agency, and (2)
failed to undertake or complete a SAP's rehabilitation referral
pursuant to Sec. 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 Sec. 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 before returning to
perform safety-sensitive functions.
The proposed revision to Sec. 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 Sec.
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
Sec. 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 Sec. 382.405,
disclosure of the information pursuant to then Sec. 382.413(a) would
have required the driver's written authorization, and responding
employers would have been required to reply within 30 days of receiving
the investigation request. Under Sec. 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.
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 Sec. 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
[[Page 16686]]
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--
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 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 (Sec. 390.15 and Sec. 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,
[[Page 16687]]
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
Sec. 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 Sec. 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 (Sec. 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
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 (Sec. 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.
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
[[Page 16688]]
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 Sec. 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 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 (Sec. 390.15(a); Sec. 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 hours-of-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 (Sec. 382.401(b)(2)), whereas records of negative and
cancelled controlled substances test results must be maintained for a
minimum of one year (Sec. 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 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
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec.
382.401(b)(2) refers to information about the processes used
[[Page 16689]]
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 Sec.
382.401(b)(1), and it specifies 5 years as the minimum retention time.
The one year requirement for data retention found at Sec.
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 Sec. 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 Sec. 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 Sec.
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 pointed out by AT&T, some employers physically see and
screen the driver before deciding to perform the background inquiries
and investigations required by Sec. 391.23 under this final
rulemaking. Some begin the Sec. 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 Sec. 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 Sec. 391.23 after they have determined the
applicant passes all their other company screening requirements.
Accident Information (Sec. 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.
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 Sec. 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 Sec.
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 Sec. 390.5 to help avoid
this problem.
Other commenters express concern about the accident data itself.
Current Sec. 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 ``non-
preventable.'', 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 3-years 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 Sec. 390.15 are for accident data
retention to allow a phase-in period from the current one year to the
required three years of accident data
[[Page 16690]]
retention and provision. If employers choose to share information about
minor accidents not included in the definition at Sec. 390.5, there is
no prohibition on them doing so. However, for purposes of making the
minimum requirement clear, the phrase ``as defined by Sec. 390.5 of
this chapter'' is added to Sec. 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 (Sec. 391.23(f))
The SNPRM proposed a conforming amendment in Sec. 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 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 Sec. 40.321(b). In order to clarify what
authorization information must be provided, a reference to Sec.
40.321(b) is added in this final rule at Sec. 391.23(f). FMCSA notes
that entities like OEVS are free to provide their clients with a form
meeting the requirements of Sec. 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 Sec. 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 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
pseudo-governmental 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 Sec. 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 Sec. Sec. 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 Sec. 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
[[Page 16691]]
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.
Previous Employer Responsibilities
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 employer does not provide the required information in the
allotted time.'' Advocates for Highway and Auto Safety (AHAS)
* * * 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.
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 non-complying 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
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 Sec.
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 Sec. 40.25(g) is
also added to the conforming language in the final rule at Sec.
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 Sec. 40.25(b) and required by Sec. 40.25(h).
Carriers that fail to provide the information required by Sec. Sec.
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; Non-recordkeeping
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 Sec. 386.12, entitled
[[Page 16692]]
``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
Sec. Sec. 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 non-compliance; (3) removing the previously
issued interpretation Question and Answer 1 under Sec. 391.23; (4)
encouraging use of the FMCSA safety violation and commercial complaint
hotline (1-800-DOT-SAFT) and Web site
(http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://nccdb.fmcsa.dot.gov) for
filing complaints; and (5) assembling a team to develop recommendations
for 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 third-party 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 Sec. 391.23, indicating that a motor carrier may use a third
party provider to obtain information to meet the inquiry requirements
of Sec. 391.23. Question 2 under Sec. 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 Sec. 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 driver-licensing
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 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 (Sec. 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 Sec. 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 Sec. 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 Sec.
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
[[Page 16693]]
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
Sec. 391.23 is in the context of driver safety performance history.
How To Respond Absent Any Data (Sec. 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 Sec. 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 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 Sec.
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.
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 Sec. 390.5 in the final rule to
clarify that it includes a current employer.
Appending Rebuttal (Sec. 391.23(j)(3))
Under proposed Sec. 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 previous employers to maintain rebuttals adds a
significant and unnecessary burden to previous employers. For example,
Coach USA requests that proposed Sec. 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
* * * 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.
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
[[Page 16694]]
that this would be widely abused by drivers.
Applicants--Driver Rights
Applicants Rights (Sec. 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 Sec. Sec. 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 Sec. 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 Sec. 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 required by Sec. 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 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 Sec. 391.23 dealing with investigations
and inquiries required as part of the hiring process.
[[Page 16695]]
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 (Sec. 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 * * *''
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 Sec. 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 Sec. 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 (Sec. Sec. 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.''
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 `` * * * Sec. 391.53(a)(1), as
proposed, would be inconsistent with Sec. 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 Sec. 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 Sec.
391.53(a)(1) is inconsistent with Sec. 40.25, FMCSA believes the
reference should more accurately be to Sec. 40.321. FMCSA further
notes that the regulations in Sec. 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.
[[Page 16696]]
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 (Sec.
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 Sec. 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 Sec. 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 Sec. 391.53 was developed based on this
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 controlled-access 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 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
[[Page 16697]]
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 Sec.
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 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, well-functioning 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. 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 Sec.
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 Sec. 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
[[Page 16698]]
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 Sec.
390.5, to the investigating prospective motor carrier within the time
period required at Sec. 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
Sec. 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 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-of-service (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 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 Sec. 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 Sec. 395.8(k)(1) to retain such data as
a supporting document for 6-months. Under Sec. 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-of-service
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
[[Page 16699]]
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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
Sec. 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 Sec. 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 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 (Sec. 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, Con-Way proposes that protections should
apply unless a person knowingly and intentionally furnishes false
information. Second, ATA urges the FMCSA to delete from Sec.
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.
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
[[Page 16700]]
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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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
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).
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
30-day 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
[[Page 16701]]
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 Sec. 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 Sec. Sec. 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 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 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 90-percent 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.
[[Page 16702]]
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
----------------------------------------------------------------------------------------------------------------
Average pre-
Number of firms/% Average annual Compliance tax profit
Revenue category ($1,000s) of total small revenues costs ($169), margins, by
firms ($1,000s) as % of annual revenue size
revenues (in percent)
----------------------------------------------------------------------------------------------------------------
<$100........................................ 1,487 (5) $67 0.25 9.5
$100-$249.9.................................. 8,715 (30) 160 0.11 9.5
$250-$499.9.................................. 5,687 (19) 356 0.05 9.5
$500-$999.9.................................. 4,890 (17) 710 0.02 9.5
$1,000-$2,499.9.............................. 4,819 (16) 1,580 0.01 2.8
$2,500-$4,999.9.............................. 2,414 (8) 3,490 <0.01 2.9
$5,000-$9,999.9.............................. 1,407 (5) 7,000 <0.01 3.5
--------------------
Total.................................... 29,419 (100)
----------------------------------------------------------------------------------------------------------------
Source: 1997 Economic Census, Sales Size of Firms, NAICS Categories 484121, 484122, 484210, and 484230
aggregated to SIC 4213.
We applied the 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 right-hand column of the above table. For all firms with less than
$1 million in annual revenues, the RMA listed average pre-tax profit
margins of 9.5 percent. Since the 1997 Economic Census data had
additional revenue categories, FMCSA applied the same profit margins
(9.5%) to all firms with annual revenues of less than $1 million.
The data reveal that total discounted 10-year costs to existing
motor carriers will reduce, although not eliminate average pre-tax
profits for carriers in any of the carrier revenue categories. The
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.
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
[[Page 16703]]
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 Sec. 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 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 Sec. 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 Sec. 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 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
[[Page 16704]]
the prescriptiveness of the HazMat Act and TEA-21.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C.
1532) requires each agency to assess the effects of its regulatory
actions on State, local, and tribal governments and the private sector.
Any agency promulgating a final rule likely to result in a Federal
mandate requiring expenditures by a State, local, or tribal government
or by the private sector of $100 million or more in any one year must
prepare a written statement incorporating various assessments,
estimates, and descriptions that are delineated in the Act. FMCSA has
determined that the changes in this rulemaking will not have an impact
of $100 million or more in any one year.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (April 23, 1997, 62 FR 19885), requires
that agencies issuing ``economically significant'' rules that also have
an environmental health or safety risk that an agency has reason to
believe may disproportionately affect children must include an
evaluation of the environmental health and safety effects of the
regulation on children. Section 5 of Executive Order 13045 directs an
agency to submit for a ``covered regulatory action'' an evaluation of
its environmental health or safety effects on children. The agency has
determined that this rule is not a ``covered regulatory action'' as
defined under Executive Order 13045.
This rule is not economically significant under Executive Order
12866 because the FMCSA has determined that the changes in this
rulemaking would not have an impact of $100 million or more in any one
year. This rule also does not concern an environmental health risk or
safety risk that would disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
Executive Order 13132 (Federalism)
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.''
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
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),
[[Page 16705]]
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 Sec. 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 Sec.
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 Sec. 390.15(b)(1) to be
recorded on accident registers is estimated at:
(0.80 x 155,000) = 124,000 interstate truck accidents that must be in
accident register.
(0.80 x 0.15 x 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 x 2 years x $0.15 per record = $37,800.)
There are significant adjustments and changes caused by this final
rule 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 Sec. 391.23, called the Driver
Qualification file, and Sec. 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
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
Sec. 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 Sec. 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 Sec. 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
[[Page 16706]]
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 employer, and their safety record
will accumulate enough to cause the current employer to remove them as
part of the Sec. 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) Sec. 391.23,
addressing the burdens of prospective and previous employers and driver
applicants during the hiring process, and (2) Sec. 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 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 x 3 =
2,000,031).
The number of new entrant driver applications is calculated as the
initial approximately twenty percent of jobs, 172,919 x 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 x 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 x 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
[[Page 16707]]
drivers that must be screened for each job opening. Experienced driver
applications are calculated as 2,000,031 (666,677 x 3 applicants per
job). Inexperienced driver applications make up the difference,
calculated as 518,757 [(839,596 - 666,677) x 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 x 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 x 3 applicants/positions x 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 x 3 years x 0.1288 percent of drivers denied employment
based on at-fault accident data x 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 x 666,677 = 666.68] + [0.015 x 666,677 = 10,000.16] = 0.25 x
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 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 x 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
x 3 applicants x 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 x 839,596 job openings x 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 x 666,677 experienced job openings x 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 x 2,000,031 applicants x 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 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 x 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
[[Page 16708]]
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 x 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 x 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 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 x 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 x 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 x 2 hours per protesting
driver = 136,356 hours) + (68,178 hours x 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 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 x 3
applicants--that will need to go through the application hiring
process) + 10,250 hours (for the additional 41,000 jobs--41,000 x 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.
[[Page 16709]]
----------------------------------------------------------------------------------------------------------------
Currently
Activities approved Continuing Adjusted Changed burden
burdens burden hours burden hours hours
----------------------------------------------------------------------------------------------------------------
Application..................................... 41,981 .............. 125,940 ..............
Additional 41,000 drivers application........... .............. .............. .............. 6,150
Request MVR and review.......................... 69,966 .............. 209,899 ..............
Request 41,00 Additional MVRs and review........ .............. .............. .............. 10,250
Request/investigate previous employers 139,933 .............. 463,341 ..............
information....................................
Review previous employer information received... .............. .............. .............. 463,341
Notify driver of rights and provide info from .............. .............. .............. 57,265
previous employer to drivers requesting copy to
review.........................................
List or certification of violations............. 187,294 187,294 .............. ..............
Annually obtain and review driving record....... 468,236 468,236 .............. ..............
Multi-employer drivers.......................... 37,674 37,674 .............. ..............
Providing 3 years of safety performance history. .............. .............. .............. 231,670
Driver rebuttals................................ .............. .............. .............. 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 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 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., three-years 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 Sec. 391.23 investigation
provision that previous employers must report the alcohol and
controlled substances information as part of the safety
[[Page 16710]]
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 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.
Table 3.--Summary of Costs, 2004-2013, in millions of dollars
------------------------------------------------------------------------
------------------------------------------------------------------------
First Year Costs........................................... $15
Total Discounted Costs, 10-Year Period..................... 113
------------------------------------------------------------------------
These figures represent FMCSA's estimate of the costs associated
with implementation of this rule. Where uncertainties exist regarding
these cost estimates, they are noted in the discussions.
Changes From SNPRM
These regulatory evaluation estimates incorporate information
provided to the docket in response to questions in the SNPRM. They
contain both substantial adjustments and changes from the numbers
presented in the SNPRM analysis.
The number of drivers screened for each job opening is a good
example of where a major adjustment in burden resulted from submissions
to the docket in response to questions asked in the SNPRM. The issue is
how many drivers, on average, are investigated and inquired about for
every driver hired. The regulatory evaluation in the SNPRM used one
driver applicant per job. The text of the SNPRM pointed out FMCSA had
conducted a study that reports the number is much higher than one to
one (see document 41 in the docket), and asked for information
regarding what the estimate should be. The responses to the docket
further confirmed there currently are on average multiple rejections
per driver hired. The explanation in the paperwork reduction analysis
explains how FMCSA determined an estimated average of three applicants
per job instead of the former assumption of one applicant per job.
Another example of a change is the percentage of truck drivers that
could be found at fault for accidents. This final rule uses estimates
developed from preliminary results of FMCSA's Large Truck Crash
Causation Study that were not available when we initially prepared our
benefits analysis for the SNPRM. They are used in this final rule as an
update for the scenario 1 analysis. The crash causation data supercedes
the ``contributing factors'' data used in the SNPRM analysis. They
allow us to establish a much stronger link between the actions taken by
the truck driver and the cause of the accident than does 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 truck driver being at
fault. This was based on data about driver fault rates for two vehicle
accidents, which was the only relatively definitive data available when
the SNPRM was finalized.4, 5 This final rule uses 38.64
percent as the estimate for the accidents the driver could be
attributed to the driver being at fault. This revised percentage of at
faults is calculated using the new preliminary data from the Large
Truck Crash Causation Study.\6\ This number was calculated in the
following manner.
---------------------------------------------------------------------------
\4\ ``Large Truck Crash Facts 2000,'' Federal Motor Carrier
Safety Administration, Analysis Division, March 2002. This document
is available online at
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&
to=http://ai.volpe.dot.gov/CarrierResearchResults/PDFs/2000LargeTruckFactsx.pdf
.
\5\ ``Large Truck Crash Profile: The 1997 National Picture,'' by
the Analysis Division, Office of Motor Carriers, Federal Highway
Administration, September 1998. Table 15 from this report is
available in the docket for this rulemaking as document 87.
\6\ Progress presentation on the Large Truck Crash Causation
Study is included in the docket as document 88.
---------------------------------------------------------------------------
The LTCCS subdivides its analysis to examine the actions taken by
the truck driver in single-truck accidents, and those taken by the
truck driver and other driver(s) in two- and multi-vehicle accidents
involving trucks. Thus we need an estimate of the percentage of driver
fault in each category of accident, and then to combine them to get an
overall value.
Examining preliminary data on single-truck accidents, the LTCCS
study researchers found that in 32 of the 50 accidents examined to date
(or 64 percent), some action by the truck driver (driver non-
performance, driver recognition, decision, or performance error) was
the ``critical reason'' for the accident. In two-vehicle accidents
involving a truck, the preliminary data revealed that in 46 of the 157
accidents examined to date (or 29.3 percent), some action taken by the
truck driver was the critical reason for the accident. In multi-vehicle
accidents involving a truck, the preliminary data revealed that in 26
of 78 accidents examined to date (or 33 percent), some action by the
truck driver was the critical reason for the accident.
In order to determine the overall percentage of total truck-related
accidents where the truck driver's action (or inaction) was the cause
(and therefore could be ``charged'' with the accident), we must also
know the distribution of single-truck, two-vehicle,
[[Page 16711]]
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 x 64% of these where the truck driver was
at fault = 15.68.
52.7% two-vehicle accidents x 29.3% of these where the truck driver was
at fault = 15.44.
22.8% multi-vehicle accidents x 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
truck-related 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.
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 re-entering 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 conditions and thereby affect the point at
which employers in all industries, as well as the particularly
competitive for-hire 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 worst-performing 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 Sec. 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
[[Page 16712]]
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]
------------------------------------------------------------------------
Total
discounted
Benefits scenario 1 First-year benefits, 10-
benefits year analysis
period
------------------------------------------------------------------------
Direct Benefits Only \1\................ $7 $107
With 10% Deterrence Effect \2\.......... 8 117
With 25% Deterrence Effect \2\.......... 9 133
With 50% Deterrence Effect \2\.......... 11 160
------------------------------------------------------------------------
\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]
------------------------------------------------------------------------
Total
discounted
Benefits scenario 2 First-year benefits, 10-
benefits year analysis
period
------------------------------------------------------------------------
Direct Benefits Only \1\................ $16 $271
With 10% Deterrence Effect \2\.......... 17 298
With 25% Deterrence Effect \2\.......... 20 339
With 50% Deterrence Effect \2\.......... 24 406
------------------------------------------------------------------------
\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 rule range from $16 million with no deterrence effect,
to $24 million if the deterrence effect is equal to 50 percent of the
direct accident reduction benefits.
[[Page 16713]]
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 Benefit-cost
Benefits scenario 1 benefits ratio \2\
(millions) \1\
------------------------------------------------------------------------
Direct Benefits Only.................... -$6 0.95
With 10% Deterrence Effect.............. 4 1.04
With 25% Deterrence Effect.............. 20 1.18
With 50% Deterrence Effect.............. 47 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
Benefits scenario 2 discounted Benefit-cost
benefits \1\ ratio \2\
------------------------------------------------------------------------
Direct Benefits Only.................... $158 2.40
With 10% Deterrence Effect.............. 185 2.64
With 25% Deterrence Effect.............. 226 3.00
With 50% Deterrence Effect.............. 294 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 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 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
[[Page 16714]]
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.
---------------------------------------------------------------------------
\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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&
to=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.
---------------------------------------------------------------------------
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 Sec. 390.15 for reporting is not required to contain information
about driver fault.
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.
---------------------------------------------------------------------------
\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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&
to=http://www.atri-online.org/research/safety/images/Musical_Chairs.pdf
.
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
\10\ This number differs from the number of accidents resulting
from application of the definition for accident found at Sec. 390.5
and required to be retained in the accident register by Sec.
390.15(b)(1). For an explanation see full regulatory evaluation for
this final rule in the docket, document 86.
---------------------------------------------------------------------------
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 x
320,000). Over three years, the number of accidents these drivers will
be involved in would total 142,500 (47,500 x 3).
Regarding new data reporting requirements, each driver applying for
a 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 x 3). Additionally, we
estimated that 142,500 accident records (47,500 annual accident records
x 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 first-year
costs from: (a) Storing/retaining two additional years of driver
accident data, (b) searching/retrieving, duplicating, and refiling
three years of accident data in preparation for mailing, and (c)
mailing out the information are $2.4 million.
[[Page 16715]]
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 non-random 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 x 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 first-year costs from: (a)
Searching/retrieving, duplicating, and refiling one year of such data
in preparation for mailing, and (b) mailing out the information are
$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 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 x 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 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 x \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
[[Page 16716]]
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 x
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 x $35.94 x
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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 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 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 post-
identification 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
[[Page 16717]]
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-of-Service Roundtables, July 2000).
Therefore, the difference in accidents per driver is .026 (51.5 /(1000
x 2)) over the 18-month post-identification analysis period examined in
the study. Assuming an equal distribution of this accident involvement
differential over the 18-month period following identification, we
estimated the annual difference in accidents between drivers with and
without accidents within the preceding 18 months to be 0.017 accidents
per driver per year.
Assuming drivers not hired as a result of this 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 truck-related accident of $79,873 in 2002
dollars, we can estimate the value of accident reduction benefits.\12\
---------------------------------------------------------------------------
\12\ The average cost per truck-related accident was obtained
from ``Costs of Large Truck- and Bus-Involved 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.
---------------------------------------------------------------------------
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, 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 newly-available
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 10-year 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 newly-available 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, 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 three-year period (1999-2001). Assuming an equal
distribution of accident involvement and driver exposure over this
three-year period, the difference in accident profiles between drivers
with, and without, a citation for a serious traffic violation is
roughly 0.0633 accidents per driver per year.
As was done with the accident data, we conservatively assumed that
drivers who are not hired into positions 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 x \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
[[Page 16718]]
because of the new alcohol/controlled substance program data made
available to prospective employers.
Using an average cost per truck-related accident of $79,873 and an
annual difference in accidents of .0316 per driver, annual benefits
associated with this provision equal roughly $3.2 million in 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 x 1,280 drivers). Total
discounted accident reduction benefits from the new alcohol/controlled
substance test and program data over the 10-year analysis period are
estimated to be $24 million.
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]
------------------------------------------------------------------------
Total
discounted
Benefits scenario 1 First-year benefits, 10-
benefits Year analysis
period
------------------------------------------------------------------------
Direct Benefits Only \1\................ $7 $107
With 10% Deterrence Effect \2\.......... 8 117
With 25% Deterrence Effect \2\.......... 9 133
With 50% Deterrence Effect \2\.......... 11 160
------------------------------------------------------------------------
\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 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
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.
[[Page 16719]]
Table 9.--Summary of Benefits, Benefits Scenario 2, 2004-2013
[In millions of dollars]
------------------------------------------------------------------------
Total
discounted
Benefits scenario 2 First-year benefits, 10-
benefits Year analysis
period
------------------------------------------------------------------------
Direct Benefits Only \1\................ $16 $271
With 10% Deterrence Effect \2\.......... 17 298
With 25% Deterrence Effect \2\.......... 20 339
With 50% Deterrence Effect \2\.......... 24 406
------------------------------------------------------------------------
\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.
0
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
0
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.
0
2. Section 390.5 is amended by adding the following definition in
alphabetic order to read as follows:
Sec. 390.5 Definitions.
* * * * *
Previous employer means any DOT regulated person who employed the
driver in the preceding 3 years, including any possible current
employer.
* * * * *
0
3. Section 390.15 is revised to read as follows:
Sec. 390.15 Assistance in investigations and special studies.
(a) A motor carrier must make all records and information
pertaining to an accident available to an authorized representative or
special agent of the Federal Motor Carrier Safety Administration, 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 Sec. 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.
(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
0
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.
0
5. In Sec. 391.21, paragraphs (b)(10) and (d) are revised to read as
follows:
Sec. 391.21 Application for employment.
* * * * *
(b) * * *
(10)(i) A list of the names and addresses of the applicant's
employers during the 3 years preceding the date the application is
submitted,
(ii) The dates he or she was employed by that employer,
(iii) 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
[[Page 16720]]
investigating the applicant's safety performance history information as
required by paragraphs (d) and (e) of Sec. 391.23. The prospective
employer must also notify the driver in writing of his/her due process
rights as specified in Sec. 391.23(i) regarding information received
as a result of these investigations.
0
6. In Sec. 391.23, revise paragraphs (a)(2), (b) and (c), and add new
paragraphs (d) through (l) to read as follows:
Sec. 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 Sec. 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 employer, or of them
to provide the required safety performance history information, must be
documented. The record must be maintained pursuant to Sec. 391.53.
(3) Prospective employers should report failures of previous
employers to respond to an investigation to the FMCSA following
procedures specified at Sec. 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 Sec. 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 Sec. 390.5 of this chapter.
(ii) Any accidents the previous employer may wish to provide that
are retained pursuant to Sec. 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.
(2) Whether the driver failed to undertake or complete a
rehabilitation program prescribed by a substance abuse professional
(SAP) pursuant to Sec. 382.605 of this chapter, 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 Sec. 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 Sec. 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.
[[Page 16721]]
(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.
(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
Sec. 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 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)
0
7. In Sec. 391.51, paragraph (b)(2) and the last line for Office of
Management and Budget authority are revised to read as follows:
Sec. 391.51 General requirements for driver qualification files.
* * * * *
(b) * * *
(2) A copy of the response by each State agency concerning a
driver's driving record pursuant to Sec. 391.23(a)(1);
* * * * *
(Approved by the Office of Management and Budget under control
number 2126-004)
0
8. Add a new Sec. 391.53 to read as follows:
Sec. 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 Sec. 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.
[[Page 16722]]
(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 Sec. 391.23(d).
(2) A copy of the response(s) received for investigations required
by paragraphs (d) and (e) of Sec. 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]
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