Attachment K - SNPRM entitled "Safety Performance History of New Drivers"

Federal Register / Vol. 68, No. 137 / Thursday, July 17, 2003 / Proposed Rules
television broadcasting and
communications equipment, and that
778 of these firms have fewer than 750
employees and would therefore be
classified as small entities.
D. Description of Projected Reporting,
Recordkeeping and Other Compliance
Requirements
16. Possible requirements under
consideration in this FNPRM would
impose use of new narrowband
technology at least one voice path per
6.25 kHz of spectrum by a date certain.
Assuming the rules adopted earlier in
the same docket in another context are
a good model for the transition to 6.25
kHz narrowband technology (which
assumption has yet to be established),
the FCC might require licensees to
convert to 6.25 kHz operation by a date
certain; and/or establish dates after
which equipment capable of operating
at a higher bandwidth could no longer
be certified, manufactured or imported;
or freeze the filing of new applications
for 12.5 kHz operation. These steps may
be necessary to facilitate efficient
management and use of spectrum.
E. Steps Taken To Minimize Significant
Economic Impact on Small Entities, and
Significant Alternatives Considered
17. The RFA requires an agency to
describe any significant alternatives that
it has considered in reaching its
proposed approach, which may include
the following four alternatives (among
others): (1) The establishment of
differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance or reporting requirements
under the rule for small entities; (3) the
use of performance, rather than design,
standards; and (4) an exemption from
coverage of the rule or any part thereof
for small entities.
18. The objective in the Refarming
proceeding was to provide a means to
transition licensees to 6.25 kHz
technology, see para. 27, supra.
Migration to 12.5 kHz technology was
viewed as a stepping stone to operation
at 6.25 kHz technology, see id. However,
requiring the use of 6.25 kHz technology
by a date certain could have an impact
some small entities by requiring them to
upgrade their communications systems
before they would otherwise do so. An
alternative would be to maintain the
current rules, which are intended to
foster migration to narrowband
technology by way of progressively
more stringent type certification
requirements. The FCC issues this
FNPRM in order to consider whether a

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change in its rules would benefit small
entities and other PLMR licensees.
F. Federal Rules That May Duplicate,
Overlap, or Conflict With the Proposed
Rules
19. None.
Ordering Clauses
20. Accordingly, pursuant to sections
1, 2, 4(i), 5(c), 7(a), 11(b), 301, 302, 303,
307, 308, 309(j) , 310, 312a, 316, 319,
323, 324, 332, 333, 336, 337, and 351 of
the Communications Act of 1934, as
amended, 47 U.S.C. 151, 152, 154(i),
155(c), 157(a), 161(b), 301, 302, 303,
307, 308, 309(j), 310, 312a, 316, 319,
323, 324, 332, 333, 336, 337, and 351,
the Balanced Budget Act of 1997, Public
Law Number 105–33, Title III, 111 Stat.
251 (1997), and §§ 1.421 and 1.425 of
the FCC’s rules, 47 CFR 1.421 and 1.425,
it is ordered that the Second Further
Notice of Proposed Rule Making is
hereby adopted.
21. It is furthered ordered that notice
is hereby given of the proposed
regulatory changes contained in the
Second Further Notice of Proposed Rule
Making, and that comment is sought on
these proposals.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 03–18055 Filed 7–16–03; 8:45 am]
BILLING CODE 6712–01–U

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Parts 390 and 391
[Docket No. FMCSA–97–2277]
RIN 2126–AA17

Safety Performance History of New
Drivers
AGENCY: Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Supplemental notice of
proposed rulemaking (SNPRM); request
for comments.
SUMMARY: In March 1996, the Federal
Motor Carrier Safety Administration’s
predecessor, the Federal Highway
Administration (FHWA), published a
notice of proposed rulemaking (NPRM)
specifying what minimum safety
performance history information new or
prospective employers would be
required to seek concerning commercial
motor vehicle (CMV) drivers and from
where that information should be
obtained. This SNPRM: Addresses

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42339

issues raised in response to the NPRM,
including small business burden, and
incorporates new requirements of
limitation on liability and driver privacy
protections imposed by the
Transportation Equity Act for the 21st
Century (TEA–21).
DATES: FMCSA must receive your
comments by September 2, 2003.
ADDRESSES: You may submit comments
to DOT DMS Docket Number FMCSA–
97–2277 by any of the following
methods:
• Web site: http://dms.dot.gov.
Follow the instructions for submitting
comments on the DOT electronic docket
site.
• Fax: 1–202–493–2251.
• Mail: Docket Management Facility;
U.S. Department of Transportation, 400
Seventh Street, SW., Nassif Building,
Room PL–401,Washington, DC 20590–
0001.
• Hand Delivery: Room PL–401 on
the plaza level of the Nassif Building,
400 Seventh Street, SW., Washington,
DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal
Holidays.
• Federal eRulemaking Portal: Go to
http://www.regulations.gov. Follow the
online instructions for submitting
comments.
Instructions: All submissions must
include the agency name and docket
number or Regulatory Identification
Number (RIN) for this rulemaking. For
detailed instructions on submitting
comments and additional information
on the rulemaking process, see the
Public Participation subheading at the
beginning of the SUPPLEMENTARY
INFORMATION section of this document.
Note that all comments received will be
posted without change to http://
dms.dot.gov including any personal
information provided. Please see the
Privacy Act heading under Regulatory
Notices.
Docket: For access to the docket to
read background documents or
comments received, go to http://
dms.dot.gov at any time or to Room PL–
401 on the plaza level of the Nassif
Building, 400 Seventh Street, SW.,
Washington, DC between 9 a.m. and 5
p.m., Monday through Friday, except
Federal Holidays.
FOR FURTHER INFORMATION CONTACT: Mr.
David Goettee, (202) 366–4097, FMCSA,
400 Seventh Street, SW., Washington,
DC 20590.
SUPPLEMENTARY INFORMATION:
Public Participation: The DMS is
available 24 hours each day, 365 days
each year. You can get electronic
submission and retrieval help
guidelines under the ‘‘help’’ section of

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Federal Register / Vol. 68, No. 137 / Thursday, July 17, 2003 / Proposed Rules

the DMS web site. If you want us to
notify you that we received your
comments, please include a selfaddressed, stamped envelope or
postcard or print the acknowledgement
page that appears after submitting
comments on-line.
Background
Summary of NPRM
Discussion of Comments to the NPRM
Summary of the SNPRM
Impacts of Other Related Rulemakings
Rulemaking Analyses and Notices
Regulatory Evaluation: Summary of Benefits
and Costs
Background and Summary
Costs
Benefits

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

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within the previous three years. Current
or previous employers must be required
to respond to the investigating employer
within thirty days of receiving the
investigation request.
The agency published the NPRM for
implementing regulations in the Federal
Register on March 14, 1996 (61 FR
10548). A copy of the NPRM is in
docket FMCSA–1997–2277.
Summary of NPRM
The March 14, 1996, NPRM proposed
changes to 49 CFR part 391
(Qualification of Drivers), with
proposed conforming amendments to
parts 382 (Controlled Substances and
Alcohol Use and Testing), 383
(Commercial Driver’s License
Standards; Requirements and Penalties),
and 390 (Federal Motor Carrier Safety
Regulations; General). The agency
proposed under § 391.23 that motor
carriers investigate the following
minimum safety information from the
previous 3-year period from all
employers who employed the driver
during that time: (1) Hours-of-service
violations that resulted in an out-ofservice order, (2) accidents as defined
under § 390.5, (3) failure to undertake or
complete a rehabilitation program
recommended by a substances abuse
professional (SAP) under § 382.605, and
(4) any ‘‘misuse’’ of alcohol or use of a
controlled substance by the driver after
he/she had completed a § 382.605 SAP
referral. The existing § 391.23(b)
requirement to obtain a driver’s driving
record(s) from the State(s) would be
retained. To harmonize § 391.23(e) with
then current drug and alcohol
regulations under § 382.413, the agency
also proposed the motor carrier obtain
the driver’s written authorization to
investigate the required drug and
alcohol information.
Current and former employers would
be required to respond to an
investigating employer within 30 days
of receiving an investigation request.
The investigating motor carrier would
have to afford the driver a reasonable
opportunity to review and comment on
any information obtained during the
employment investigation, and would
have to inform the driver of this right at
the time of application for employment.
Conforming changes were also proposed
to §§ 383.35(f) and 391.21(d) to reinforce
the driver notification requirement.
Further, the agency proposed under
§ 390.15 to change the required
retention period for the accident register
maintained by motor carriers from one
year to three years, and to begin
requiring motor carriers to provide
information from the accident register in
response to all prospective employer

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investigations pursuant to § 391.23.
These provisions would facilitate the
proposal requiring investigation of
accident information by prospective
employers by expanding a source of
accident data that was already being
collected and maintained by motor
carriers for other purposes.
When the NPRM was published in
1996, the agency drug and alcohol
regulations codified at 49 CFR part 382
required employers to investigate: (1)
Alcohol tests with a result of 0.04 or
greater alcohol concentration, (2)
verified positive controlled substances
test results, and (3) refusals to be tested.
Section 382.413(a)(2) allowed a
previous employer to pass along drug
and alcohol test information received
from other previous employers (as long
as the information covered actions
occurring within the previous two-year
period). Under § 382.413(b), if an
employer found that it was not feasible
to obtain the drug and alcohol
information prior to the first time a
driver performed a safety-sensitive
function for the employer, that
employer could continue to use the
driver in a safety sensitive function for
up to 14 calendar days. After that time
period, the employer could not use the
driver in a safety-sensitive function
unless the requisite information was
obtained, or the employer had made a
good faith effort to obtain it.
In its 1996 NPRM, the agency also
proposed numerous conforming
amendments to expand the type of drug
and alcohol information that should be
sought under § 382.413(a). Employers
would be required to investigate
whether, in the past 3 years, a driver
had: (1) Violated the prohibitions in
subpart B of part 382, or the alcohol or
controlled substances rules of other
DOT agencies; and (2) failed to
undertake or complete a SAP’s
rehabilitation referral pursuant to
§ 382.605, or the alcohol or controlled
substances rules of another DOT agency.
Beyond incorporating the HazMat Act
requirements into part 382, the
violations enumerated in § 382.413
would also have been included in the
alcohol and controlled substances
regulations of ‘‘all DOT agencies.’’ At
that time, FHWA believed that some
drivers might apply for positions that
require driving a CMV after having
violated the alcohol or drug use
prohibitions of another DOT agency.
Therefore, the agency included a
requirement for an employer to
investigate information from all past
employers for which a driver had
worked in a position covered by the
alcohol and/or drug prohibitions and
testing requirements of another DOT

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agency. That could have helped to
ensure that persons applying for
positions that require operating a CMV
would have all of their relevant records
of violations investigated. It would also
have ensured that a SAP evaluated
persons who test positive, and that
violators completed a recommended
rehabilitation program before returning
to perform safety-sensitive functions.
The § 382.413(a)(2) requirement to
pass along drug and alcohol information
received from other previous employers
when responding to an employer’s
investigation under § 382.413 was
subsequently incorporated into the
FMCSRs as a technical amendment in a
final rule published in the Federal
Register on March 8, 1996, (61 FR
9546). However, because § 382.413(a)(2)
constituted a substantive change which
should be subject to public notice and
comment before becoming a final rule,
the agency also included it in the March
14, 1996 NPRM.
In a related change proposed under
§ 382.405, disclosure of the information
pursuant to § 382.413(a) would have
required the driver’s written
authorization, and responding
employers would have been required to
reply within 30 days of receiving the
investigation request.
Under proposed § 382.413(b), the
agency would have extended the time
period allowed to use a driver in a
safety-sensitive function without having
received the requisite drug and alcohol
information from 14 days to 30 days.
After 30 days, the employer would have
been prohibited from continuing to use
the driver to perform safety sensitive
functions without having received, or
having documented a good faith effort to
obtain, the driver’s drug and alcohol
history.
Discussion of Comments to the NPRM
Small Business Administration
Concerns
The Small Business Administration
(SBA) believes that a substantial number
of small entities would be economically
impacted by the NPRM, and offered
recommendations for minimizing such
impacts. In particular, the SBA
recommended FMCSA give more
attention to the intent of the HazMat Act
requirements relative to the Regulatory
Flexibility Act certification regarding
impacts on small entities, and
specifically include estimates of the
number and size of entities and the
estimated costs they would incur. The
SBA also requested that more extensive
information be included about the
estimated paperwork burden.

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FMCSA Response: The FMCSA agrees
that more extensive attention to
regulatory flexibility is appropriate, and
has included a more detailed Regulatory
Flexibility Act analysis as part of this
SNPRM. The agency has also prepared
an initial regulatory evaluation and
placed a copy of the regulatory
evaluation in the docket for this
rulemaking as document number 38. A
summary of the regulatory evaluation is
provided in this SNPRM under the
section entitled ‘‘Regulatory Evaluation:
Summary of Benefits and Costs.’’
FMCSA addresses SBA
recommendations for major issues
under the following topical discussions.
Employer Liability and Driver Rights
Many comments to the NPRM
concerned issues of (1) employer
liability for using investigative driver
history background information in the
hiring decision, (2) employer liability
for furnishing the driver history
background performance records, and
(3) drivers’ rights to review and
comment on the accuracy this safety
performance information and to
processes for drivers to seek revision or
provision for rebuttal. Seventeen
commenters addressed the employer
liability issues. Eighteen addressed the
drivers’ rights issue.
The American Trucking Associations
(ATA) wrote:
‘‘The potential liability arising from
providing information about a former
employee to a prospective employer
continues to be a matter of the greatest
concern to motor carriers. It has been a major
factor inhibiting the effectiveness of the
present provisions of § 391.23(c) for the past
quarter-century. The general view, based on
experience, is that a mere requirement for
notification to drivers set forth in proposed
§ 383.35(f) and 391.21(d), or as currently
required in § 391.21, is totally inadequate.
We are also concerned with the present
provisions and proposed amendments to
§ 382.413 because a driver-applicant is not
specifically advised of the regulatory
requirements that the prospective employer
obtain the information and the obligation of
the previous employer to provide it. * * *
Even if the carrier successfully defends its
action in providing factual information to the
prospective employer, it will have almost
surely been put to considerable needless
expense to defend itself.’’

A few commenters feared that
providing the driver with full access to
information received during the
employment history investigation, and
not just that proposed in the NPRM
under § 391.23(c)(1), would increase the
threat of litigation for employers,
particularly if that information was the
basis for denying the driver
employment.

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42341

Several commenters proposed various
remedies. The Regular Common Carrier
Conference (RCCC) and Interstate
Truckload Carriers Conference (ITCC)
suggested the proposed driver’s written
release required for alcohol and
controlled substances information under
§ 391.23(c)(1)(iii) and (iv) be required
for all investigative information under
§ 391.23(c)(1). The RCCC believes this
modification would greatly reduce the
potential liability for unlawfully
disclosing investigative information,
and ensure that drivers know
beforehand their safety performance
records will be investigated from prior
employers.
In supplemental comments to the
docket, the ITCC noted that legislative
relief was their preferred option for
dealing with employer liability issues.
The ITCC further believes the driver’s
signed release would provide an
appropriate measure of protection for
employers named as defendants in
employment litigation. It pointed out
that many employers have already
incorporated some sort of release
language into the printed employment
application. Drivers subscribe to the
release when signing the application.
The ITCC further proposed that the
agency incorporate language into the
final rule stating that the act of applying
for employment denotes a driver’s
implied consent to the release of all
information that carriers are required to
obtain to make a considered
employment decision. The inclusion of
such ‘‘implied consent’’ language could
be especially useful in satisfying the
concerns of carriers accepting
applications using non-written means,
such as drivers calling 800 numbers
provided by the carrier for recruiting
new drivers. The ATA and DAC
Services, Inc. also recommended
including implied consent language in
the final rule. The United Motorcoach
Association (UMA) supports employer
protection for releasing driver
investigative information by adding a
‘‘hold harmless’’ clause to the final rule.
In the March 14, 1996, NPRM the
agency requested specific comments on
whether to define a ‘‘reasonable
opportunity’’ for a driver to review and
comment on safety performance records
and whether this driver right should
have time restrictions.
The Advocates for Highway and Auto
Safety (AHAS) urged the agency to
define ‘‘reasonable opportunity’’ rather
than leave implementation of this
proposal to the motor carrier industry.
Pinnacle Transport Services
(Pinnacle) encouraged the agency to
entirely eliminate the proposed right for
the driver to review the furnished

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information, as well as the
corresponding stipulation under the
proposed § 383.35(f) and § 391.21(d)
that employers notify driver applicants
of this right. Pinnacle believed that
‘‘(u)ntil the Department of Labor makes
this suggestion generally applicable to
all employers, you are unreasonably
forcing companies to become
clearinghouses for minutiae.’’
Some commenters suggested drivers
be allowed to review the furnished
investigative information only if they
made a written request.
Dart Transit Company and Fleetline,
Inc. recommended that only drivers
who have been denied employment or
a contract, in whole or in part, based on
the furnished safety performance
background information, be allowed to
review and comment. They also
suggested these drivers be given up to
30 days after notification of disposition
of the application to provide written
comments to the investigating carrier. In
addition, they suggested a
corresponding requirement that the
prospective motor carrier advise all
driver-candidates of their rights to
request an opportunity to review and
comment on the background data that is
received.
Six commenters recommended all
drivers be allowed to review and
comment on only the safety items
originally proposed under
§ 391.23(c)(1). Contract Freighters, Inc.
suggested that only accident
information be open to a driver’s review
and comment.
Several commenters recommended
specific time frames for the driver
applicant review and comment period.
These range from within 3 workdays to
10, 30 or 60 days after receipt of
notification of disposition of the
application, commencement of the
application process, or receipt of the
investigation reports from the
responding employer.
The United Motorcoach Association
(UMA) proposed requiring employers to
complete an employment record within
48 hours of an employee leaving, unless
hindered by extenuating circumstances
or authorized by a mutually agreed
upon extension of that period. That
employment record would be the one
transmitted to subsequent employers
investigating a prospective driver. The
UMA also proposed drivers be granted
the right to add brief personal and
enlightening comments to the previous
employer’s report and that the
combined record be forwarded to
investigating employers upon request.
The International Brotherhood of
Teamsters proposed a similar
requirement, but favored allowing the

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employer 10 days in which to provide
separated employees with his or her
complete employment record. The
employee would similarly be entitled to
file supplemental comments.
FMCSA Response: On June 9, 1998,
the President signed TEA–21. Section
4014 of the Act addresses this
rulemaking by preempting State and
local liability laws and regulations, thus
limiting employer liability for
investigating, furnishing and using
previous employer driver safety
performance records as part of the
hiring decision (i.e., the proposed driver
safety performance history information
enumerated under § 391.23(d) and (e) of
this SNPRM), when carried out in
accordance with FMCSA rules. A copy
of section 4014 of TEA–21 is included
in the docket as document 39. Section
4014 further directs the FMCSA to
amend the Safety Performance History
of New Drivers NPRM to specify details
of protection for driver privacy,
including establishing procedures
whereby drivers may review, correct, or
rebut investigative information received
by a prospective motor carrier employer
from a previous employer. FMCSA
believes these procedures replace the
phrase ‘‘reasonable opportunity’’ and
fully address the concerns expressed
above from AHAS.
Section 4014(a) amends 49 U.S.C.
chapter 5, by adding section 508,
preempting the right of anyone to bring
action against employers rightfully
fulfilling their requirement to
investigate, provide and use specified
previous employer driver safety
performance history of driver-applicants
as part of the hiring decision.
After implementation of these liability
limitation provisions proposed in this
SNPRM, no one would be allowed to
bring actions or proceedings against a
motor carrier requesting, providing and
using this information in conformance
with the procedures put forth in this
SNPRM. This limitation would only
apply if in accordance with FMCSA
regulations the prospective employer
has conducted the required
investigations for driver safety
performance information, the previous
employers provided the required
information to the investigating motor
carrier, the previous employer is not
found to have provided false
information, and these processes were
carried out in compliance with the
proposed regulations. The proposed
regulations would require observing the
driver’s right to review, correct or rebut
the previous employer furnished
records, and the requirement at 49 CFR
391.23(f) of this SNPRM to first obtain
the driver’s written authorization to

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release his/her drug and alcohol
information.
As a result of the limitation on
liability being granted, FMCSA believes
the concerns of those who wanted to
restrict drivers’ rights to review
previous employer investigative data to
only safety items are fully addressed.
FMCSA believes the drivers’ right to
review, comment, or rebut applies to all
investigative information provided to
prospective employers and used as part
of the hiring decision process.
In addition, the method proposed in
this SNPRM to further provide
protection for driver privacy for drug
and alcohol information is modeled on
that already operational in the DOT
drug and alcohol regulations under 49
CFR part 40, which meet the intent of
section 114 of the HazMat Act.
Although results of DOT-mandated drug
and alcohol tests were determined not
to be medical records, DOT policy treats
the release of such results similar to the
release of medical records.
Thus, the applicant would continue to
be required to sign a written
authorization for the specific employer
(or agent) to provide investigative
information about the applicant’s drug
and alcohol history to the prospective
employer specified on the authorization.
Any use of the information by the
prospective employer for other than
hiring purposes, such as release to
anyone not involved in the hiring
process, would be permitted only in
accordance with the terms of the
driver’s authorization.
Various third party consumer
reporting agencies sell services to the
truck and bus industry for obtaining and
providing a variety of information,
including inquiries for State driving
records and investigations for employer
history pertaining to CMV drivers. A
similar function under the DOT alcohol
and controlled substance regulations is
referred to by the term ‘‘Service Agent.’’
Such agents are prohibited by 49 CFR
40.321 from releasing a driver’s personal
alcohol and controlled substance
information without the driver’s written
consent for that specific release.
The DOT Office of the Secretary,
Office of Drug and Alcohol Policy and
Compliance interprets the restriction on
releasing information to mean that such
third party service agents are prohibited
from disclosing even that a driver’s
alcohol and controlled substance
information exists in the service agent’s
files without the driver’s written
consent. The proposals in this SNPRM
for provision of alcohol and controlled
substances information contain this
same restriction on release of this
information by previous employers or

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their agents operating under the limited
liability provisions contained in this
SNPRM.
The method proposed in this SNPRM
to ensure the driver’s right to review,
correct, or rebut contains two major
parts. First, as part of the application
process prospective employers are
required to notify driver applicants in
writing of their review rights. Second,
the furnishing previous employer is
required to work with the driver to
either revise the report, or allow the
driver to have his/her rebuttal appended
to the carrier report.
This process is generally modeled
after provisions in the Fair Credit
Reporting Act (15 U.S.C. 1681 et seq.) as
it applies to motor carriers obtaining
investigative information as part of the
hiring decision process. Prospective
employers would be authorized to
investigate, and previous employers
would be required to provide, non-drug
and alcohol safety performance history
information without a signed
authorization from a prospective
employee. Prospective employers would
be required to provide the driver a copy
of the information received if the driver
submits a written request to the carrier
to review the information (electronic or
Internet requests would be acceptable).
In the interest of allowing drivers
prompt access to the information critical
to their hiring, the FMCSA proposes two
business days for the prospective
employer to provide a copy of the
investigative data received upon receipt
of a written request from the driver to
review the information. If the driver
chooses to correct or add a rebuttal to
a previous employer’s information, it is
proposed that the previous employer
have up to thirty calendar days to
respond to the driver’s request for such
changes or incorporation of the rebuttal.
Comments are requested on the
appropriateness of the number of days
proposed for employer responses in this
SNPRM. For example, should the
prospective employer have more
business days, such as five, or 10, to
provide the driver with copies of the
investigative data received? Should the
previous employer be required to
respond earlier than 30 calendar days,
such as 10 or 15 business days, since the
driver may not be receiving
compensation pending resolution of
adverse information provided by the
previous employer?
The liability limitation protections
under 49 U.S.C 508(a) only apply to
motor carrier employers carrying out
these investigations and other parties
functioning as the agent for a previous
or prospective employer. Companies
functioning as a consumer-reporting

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agency providing reports from their
repository of driver safety performance
information, rather than as the agent for
a specific motor carrier, are not granted
the liability limitation proposed in this
SNPRM. Instead they are subject to
protections specified in the Fair Credit
Reporting Act, 15 U.S.C. 1681 et seq. In
addition, the protections under TEA–21
would not apply to motor carriers found
to have knowingly provided false
information. The previous or current
employer’s response should be based on
fact and not opinion or hearsay.
Title 49 U.S.C. section 508 requires
that the § 391.23(c) safety performance
history information be accessible only to
authorized persons involved in the
hiring decision process and the motor
carrier’s insurance company. Under
current regulations, motor carriers
maintain information received in
response to § 391.23(c) investigations in
the Driver Qualification (DQ) file, along
with various other types of information
required by the FMCSRs. These include
information related to the § 391.25
driving record annual review, and the
§ 391.41(a) bi-annual review of a
driver’s medical qualifications. The
multiple functions of the DQ file
increases the potential that motor carrier
personnel other than those involved in
hiring decisions would repeatedly have
access to a driver’s background
employment records.
However, sections 114(b)(2) and (3) of
the HazMat Act specify that drug and
alcohol information are part of the
minimum safety performance
information to be sought under
§ 391.23(c). Therefore, that information
is included in the information specified
under section 4014 of TEA–21 as being
restricted to limited accessibility, and
only used for the hiring decision.
DOT regulated employers are already
required by § 40.25(i) and § 382.401(a)
to maintain drug and alcohol records
confidentially in a secure location with
controlled access. As a result, the
industry has already developed
procedures for complying with the
recordkeeping requirements of parts 40
and 382. It is accepted practice to
maintain drug and alcohol records
separately from the DQ file in order for
the employer to ensure that the data is
adequately secured, and access to it is
controlled in compliance with parts 40
and 382 recordkeeping requirements.
Those persons with access to the drug
and alcohol records are specifically
designated and charged with keeping
the data secure, and their access is
controlled to ensure this is not
compromised.
Therefore, the established
recordkeeping practices for drug and

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42343

alcohol records fulfill the requirements
of section 4014 of TEA–21 for all
previous employer investigative
information. Accordingly, this SNPRM
proposes under § 391.53 to require that
all investigative information received
from previous employers pursuant to
§ 391.23(c) be kept in the controlled,
access-secured file. FMCSA believes
that this meets the accessibility
requirements necessary for employers
being granted the limited liability
specified in section 4014 of TEA–21.
Therefore, this proposal would revise
§ 391.23(c) to require that investigative
information received be maintained as
specified at § 391.53. Current
instructions in § 391.51(b)(2) for
retaining information relating to the
§ 391.23(c) investigations in the driver
qualification file would be removed.
The restriction contained in 49 U.S.C.
508(b)(1)(C) that investigative
information received from previous
employers can only be used for the
hiring decision means the accident data
received cannot be considered in the
annual reviews of the driver’s driving
record required by § 391.25.
Section 4014 of TEA–21, codified at
49 U.S.C. 508 requires the Secretary to
develop regulations implementing
liability limitations on motor carriers
requesting and providing investigative
driver safety performance history
information, and that those include
procedures for prospective drivers to
review, comment or rebut the
information provided to prospective
motor carriers. This SNPRM has
modeled driver rights to review,
comment or rebut driver safety
performance on those contained in the
Fair Credit Reporting Act for
investigative information.
This SNPRM provides notification at
§ 391.23(i) of the right of the driver to
request access to information provided
to the prospective motor carrier
employer, and at § 391.23(j) for the
driver and the previous motor carrier to
resolve any differences. FMCSA
requests comments on the sufficiency of
these procedures, and specific,
proposed methods to improve them.
Hours of Service Violations Resulting in
an Out-of-Service Order
SBA recommends FMCSA eliminate
its proposal that motor carriers
investigate information about a driver’s
hours-of-service violations that resulted
in an out-of-service order. SBA does not
believe the agency has adequately
explained how the information would
contribute to safety. It points out that
section 114 of the Hazmat Act does not
require information about a driver’s
hours-of-service violations, and the

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Federal Register / Vol. 68, No. 137 / Thursday, July 17, 2003 / Proposed Rules

FMCSRs do not require former
employers to record or retain such
information. Similarly, other
commenters, including J.B. Hunt and
Mobile Corporation, saw little or no
relationship to safety performance.
FMCSA Response: The regulatory
evaluation for this proposed rule reveals
a strong and positive relationship
between: (1) Hours-of-service violations
that result in out-of-service orders, and
(2) future safety performance. However,
FMCSA has decided to eliminate the
proposal for the following reasons: (1)
Section 114 of the HazMat Act does not
specifically require this information, (2)
information about hours-of-service
violations that resulted in out-of-service
orders would be difficult for prospective
employers to obtain from previous
employers, because this information is
only systematically reported to FMCSA
as part of the Motor Carrier Safety
Assistance Program (MCSAP)
enforcement activities of the States, (3)
requiring this information collection
and establishing a motor carrier
recording requirement would be
particularly burdensome to small
entities, and (4) comments to the docket
opposed the proposal.
Drug and Alcohol Reporting
SBA believes the NPRM would result
in an increased number of inquiries for
drug and alcohol information under
§ 382.413, and that the 30-day response
time would place new burdens upon
small entities. SBA believes opinion and
hearsay should be discouraged to
minimize liability and circulation of
false information.
To decrease the potential reporting
burden and ensure that only fact-based
information would be provided, SBA
recommends the agency specify what
information must be sought under
§ 382.413. The SBA further believes it
would be difficult for employers to
report the drug and alcohol violations
and rehabilitation referrals of other DOT
agencies, as proposed under
§ 382.413(a)(1). The SBA suggested
FMCSA: (1) List the specific DOT modal
regulations; (2) explain how to find
records of violations for these rules, and
(3) state the effect of such violations
upon a driver’s qualifications.
The SBA disagreed with the NPRM
provision at § 382.413(a)(2) to require
former employers to pass along driver
information that a previous employer
received from prior employers. The SBA
recommended the FMCSA eliminate
this requirement.
FMCSA Response: For reasons set
forth under the following section
entitled ‘‘Impacts of Other
Rulemakings,’’ the agency has

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withdrawn conforming amendments to
part 382, and believes the SBA concerns
were largely addressed in previous
rulemakings issued during 2000 and
2001 and affecting 49 CFR parts 40 and
382.
There is another issue on which
FMCSA requests comments. Section
4014 of TEA–21, codified at 49 U.S.C.
508 (a)(3), relating to limitation on
liability, states the limitation applies to
‘‘the agents or insurers of a person
described in paragraph (1) or (2).’’
Section 508 (b)(1) restricts applicability
of the limitation on liability within the
requesting process for use by motor
carriers. Sub item (B) specifically
applies to agents and insurers by
requiring that ‘‘the motor carrier and
any agents and insurers of the motor
carrier have taken all precautions
reasonably necessary to protect the
records from disclosure to any person,
except for such an insurer, not directly
involved in deciding whether to hire
that individual.’’ Section 508 (b)(2)
restricts applicability of the limitation
on liability to the previous motor carrier
providing the information. Sub item (B)
applies to insurers by requiring that
‘‘the complying person and any agents
and insurers of the complying person
have taken all precautions reasonably
necessary to protect the records from
disclosure to any person, except for
such insurer, not directly involved in
forwarding the records.’’
FMCSA points out that insurers are
currently not allowed access to the drug
and alcohol information by part 40.
FMCSA interprets the requirements in
section 114 of the HazMat Act as
creating the authority to grant a
limitation on liability if the drug and
alcohol data is made available to the
insurance providers, but does not
mandate that they be given access to
this information. Thus, for consistency
with the existing drug and alcohol
policy of the DOT established by part
40, FMCSA proposes that insurers be
allowed access to the investigative
information, but exclude any alcohol
and controlled substances information
provided by previous employers under
written authorization of the driver
applicant.
Comments are desired on whether
alternative legal interpretations
regarding insurer access to alcohol and
controlled substances information are
intended by the HazMat Act. If so, how
should such access be managed?
FMCSA does not have regulatory and
enforcement authority to ensure the
insurance providers remain in
compliance with the requirement that
the data only be used for the hiring
decision.

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Accidents
The SBA pointed out that immediate
implementation of the proposal to
extend the retention period for accident
information from one to three years
would be impossible, i.e., it can only
become three years after passage of time
to allow motor carriers to retain
accident data for up to that period. For
this reason, the SBA suggested
amending § 390.15 by stating that
accidents occurring one year preceding
the rulemaking or after its effective date
must be kept for at least three years.
Alternatively, the agency could provide
compliance guidance that reminds field
personnel that motor carriers may be
unable to immediately provide
information about accidents occurring
more than a year prior to the effective
date of the rule because it was not
previously required. The SBA believes
the agency should encourage field
personnel to waive penalty or
enforcement against carriers until
sufficient time has elapsed to fully
comply with the new accident
recordkeeping requirement under
§ 390.15.
FMCSA Response: The FMCSA agrees
with the recommendation to phase in
this requirement and has amended
§ 390.15 to reflect the suggested phase
in process.
Employment History Form
SBA and other commenters suggested
the agency should include more details
specifying the minimum data that must
be investigated, and provided by
previous employers. SBA additionally
recommended that FMCSA develop, as
part of its guidance materials, a nonmandatory form for use by inquiring
and responding employers.
FMCSA response: In this SNPRM,
FMCSA has clarified in the proposed
§ 391.23(d) and (e) the information that
must be investigated and provided, and
also eliminated redundant amendments
to § 382.413. The description of the
required alcohol and controlled
substances records in proposed
§ 391.23(e) is revised to convey that
only those existing records filed
pursuant to § 382.401 are required. If the
previous employer cannot provide the
information regarding completion of a
rehabilitation referral, the investigating
employer must obtain it from the driver.
Summary of the SNPRM
The importance of obtaining access to
previous employer driver safety
performance history information is long
established as a best hiring practice. The
purpose of this proposed regulation is to
enhance the ability of prospective

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employers to make sound hiring
decisions. The procedures proposed in
this SNPRM will enable obtaining more
complete driver safety performance
information by motor carriers. It will
also maximize the use of this
information by providing a limitation on
liability of those providing and using
this information, while subjecting them
to administrative controls to protect
driver privacy.
The SNPRM specifies minimum
safety performance history data that a
motor carrier must investigate about a
driver’s employment history under the
proposed § 391.23(d) and (e). It differs
from the NPRM by: (1) Refining the list
of what information is to be investigated
from previous employers, (2)
establishing employer protections for
providing and using the safety
performance history information, (3)
clarifying drivers’ rights to review,
correct or rebut information provided,
(4) providing enhanced Regulatory
Flexibility Act and Paperwork
Reduction Act analyses, and (5)
dropping conforming amendments to
part 382 because they were already
addressed under separate rulemakings
discussed in the preamble.
FMCSA has refined the safety
performance history data list in
response to comments to the docket and
because of changes to agency drug and
alcohol regulations made by recent
rulemakings. Section 4014 of the TEA–
21 mandated the new employer liability
limitation and driver protections being
proposed. Enhanced Regulatory
Flexibility analysis is provided in
response to comments to the docket
from the Small Business
Administration.
Impacts of Other Related Rulemakings
Recent Changes in Alcohol and
Controlled Substance Regulations
When the NPRM for driver safety
performance history was issued in 1996,
the detailed regulations governing
investigations into an employee’s drug
and alcohol history were codified at 49
CFR 382.413. Since that time, DOT has
revised its major regulations regarding
drug use and alcohol abuse. Changes to
the DOT drug and alcohol regulations,
49 CFR part 40, were finalized in a
document entitled ‘‘Workplace Drug
and Alcohol Testing Programs; Final
Rule’’ (65 FR 79462, December 19,
2000). A correction to the final rule was
published at 66 FR 3884, January 17,
2001; final compliance date details were
published at 66 FR 28400, May 23,
2001; and technical amendments to the
December 2000 final rule were
published at 66 FR 41944, August 9,

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2001. These documents are available in
DOT docket number OST–1999–6578.
The Department’s program written by
the Office of the Secretary and jointly
issued by each of the Operating
Administrations was finalized at 66 FR
41955, August 9, 2001. It provides the
background for and an overview of the
general, common elements of the modal
rules. FMCSA finalized conforming
amendments to the part 40 changes in
its drug and alcohol regulations codified
at 49 CFR part 382 and published them
in a final rule at 66 FR 43097, August
17, 2001. A copy of that document has
been placed in DOT docket number
FMCSA–2000–8456.
Among other things, these rules
streamlined drug and alcohol testing
program requirements for all of the
Department’s modal entities having
drug and alcohol regulations. All DOT
regulated employers—not just motor
carriers—must investigate the drug and
alcohol history of a person intended to
be deployed in a safety-sensitive
function. Similarly, DOT-regulated
employers must immediately respond to
such investigations. The specific
requirements governing investigations
about drug and alcohol information
were revised and moved from § 382.413
to 49 CFR § 40.25. The new § 382.413
cross-references § 40.25.
The HazMat Act directs the Secretary
to amend § 391.23. Section 114(b)(2) of
the HazMat Act requires motor carriers
covered by part 391 to investigate
certain drug and alcohol information
about a driver as well as investigating
his/her employment history. The motor
carrier drug and alcohol investigation
requirements were in existence when
the HazMat Act was signed into law
(codified at 49 CFR part 382, which
applies only to motor carriers subject to
the 49 CFR part 383—Commercial
Driver’s License Standards,
Requirements and Penalties).
Because Congress specified no
changes for part 382, FMCSA believes
Congress also intended that the new
§ 391.23 requirement specify that motor
carriers not otherwise subject to the
alcohol and controlled substances
testing requirements under part 382, or
the CDL standards in part 383, are also
required to investigate this data. This
would create an extra level of safety by
requiring these motor carriers to
investigate a driver’s alcohol and
controlled substances history if the
driver previously held a safety sensitive
position subject to the part 382
requirements. This includes obtaining
information about drivers who may
have violated part 382 prohibitions, and
may be seeking to work for uncovered
motor carriers without having

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42345

completed DOT return-to-duty
requirements, or who have relapsed
subsequent to treatment.
FMCSA believes the new part 40
adequately reflects the spirit of section
114 of the HazMat Act because it directs
employers to: (1) Investigate completion
of a SAP’s rehabilitation referral, (2)
immediately respond to drug and
alcohol history investigations from new
or prospective employers, and (3) retain
certain drug and alcohol records for up
to 3 years. This is because the
§ 40.25(b)(5) requirement for
‘‘documentation of the employee’s
successful completion of DOT return-toduty requirements * * *’’ describes in
a positive voice the intent under the
HazMat Act section 114 that motor
carriers investigate a driver’s possible
failure to undertake or complete
recommended treatment.
Because the Department has: (1)
Recently completed extensive revisions
to its alcohol and controlled substances
regulations, (2) incorporated provisions
that accomplish the intent of section
114, and (3) thoroughly determined the
information collection burdens and
economic impacts of these changes, the
FMCSA believes it is unnecessary to
propose changes to part 382. The
HazMat Act requirement for modifying
§ 391.23 to investigate 3-years of
possible alcohol and controlled
substances information for all drivers
hired by motor carriers covered by part
391 is placed in § 391.23(e).
Existing § 382.413 cross-references
§ 40.25 requirements that an employer
investigate an employee’s (in the case of
FMCSA regulated entities, a driver’s) 2year drug and alcohol history. That
investigation would include, among
other things, information about the
successful completion of DOT return-toduty requirements for any employee
found to have violated DOT alcohol and
controlled substances rules (i.e., the
alcohol and controlled substances
regulations of any DOT agency). The
existing requirement in § 40.25 to
investigate two years of information is
one year less than required by section
114 of the HazMat Act and the proposed
§ 391.23(e) in this SNPRM. Both require
motor carriers to make a 3-year
investigation of the alcohol and
controlled substances history, and for
previous employers to provide that
information.
The major difference between
§ 40.25(b)(5) and § 391.23(e) involves
the time period and scope of the alcohol
and controlled substances testing
records. This SNPRM would require a
prospective employer to investigate a
previous motor carrier’s employer
information about violations of only the

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FMCSA alcohol and controlled
substances regulations (i.e., 49 CFR part
382, subpart B). Note that part 382 in
conformance with part 40, requires
motor carriers to investigate alcohol and
controlled substance information from
any previous employer during the prior
two years where the driver held a safety
sensitive job.
Specifically, the prospective motor
carrier would have to investigate
whether a driver had received a
rehabilitation referral from an SAP
pursuant to § 382.605. If so, the
prospective motor carrier would have to
receive: (1) Documentation of the
driver’s successful completion of DOT
return-to-duty requirements, and (2) any
positive test results or refusals to be
tested that occurred subsequent to
completion of return-to-duty
requirements.
In a related issue, FMCSA would
continue not requiring previous
employers to divulge information
regarding self disclosed violations of the
alcohol and controlled substances
prohibitions made under § 382.121.
Such disclosures are not required to be
reported as testing violations nor are
they subject to DOT return-to-duty
requirements.
Request for Comments
The FMCSA requests comments on
any and all aspects of the revised
proposals in this SNPRM. The
comments to the docket on the NPRM
remain active. Thus, there is no need to
revisit the issues discussed in the 1996
NPRM.
Rulemaking Analyses and Notices
Regulatory Notices
Privacy Act: Anyone is able to search
the electronic form of all comments
received into any of our dockets by the
name of the individual submitting the
comment (or signing the comment, if
submitted on behalf of an association,
business, labor union, etc.) You may
review DOT’s complete Privacy Act
Statement in the Federal Register
published on April 11, 2000 (Volume
65, Number 70; Pages 19477–78) or you
may visit http://dms.dot.gov.
Executive Order 12866 (Regulatory
Planning And Review) And DOT
Regulatory Policies And Procedures
The FMCSA has determined this
action is a significant regulatory action
within the meaning of Executive Order
12866, and is significant within the
meaning of Department of
Transportation regulatory policies and
procedures (44 FR 11034, February 26,
1979). It has been reviewed by the

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Office of Management and Budget. The
subject of requirements for background
checks of prospective driver safety
performance history information will
likely generate considerable public
interest within the meaning of Executive
order 12866. We have classified the rule
as significant because of the high level
of public and congressional interest in
the rule.
This SNPRM modifies an earlier
notice of proposed rulemaking by: (1)
Including an expanded discussion of the
economic and information collection
burdens of the proposal, (2) setting
limitations on employer liability for
using and providing the safety
performance history data of a driver by
including the requirements of section
4014 of TEA–21 codified at 49 U.S.C.
508, and (3) establishing the Act’s
required due process rights of drivers.
FMCSA anticipates that the economic
impact of this SNPRM will not exceed
the annual $100 million threshold for
economic significance.
Under a following section of this
SNPRM entitled ‘‘Regulatory
Evaluation: Summary of Benefits and
Costs,’’ the agency estimated the firstyear costs to implement this rule would
amount to approximately $10 million.
Total discounted costs over the 10-year
analysis period (2003–2012) would be
$76 million, using a discount rate of
seven percent. All these costs are
associated with the statutorily mandated
requirements of section 114 of the
Hazmat Act and section 4014 of TEA–
21. The first-year net benefits associated
with this rule would be negative. Total
discounted benefits over the 10-year
analysis period (2003–2012) would be
equal to $88 million. Total discounted
net benefits from implementing this rule
would equal $12 million over the 10year analysis period (2003–2012).
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA),
as amended by the Small Business
Regulatory Enforcement and Fairness
Act (SBREFA), requires Federal agencies
to analyze the impact of rulemakings on
small entities, unless the agency
certifies the rule will not have a
significant economic impact on a
substantial number of small entities. In
response to SBA’s request for more
information on the economic impact of
this proposed rule upon small entities,
and the determination that this is
considered a significant rulemaking
proposal, the agency has prepared an
initial regulatory evaluation and the
following RFA analysis.
(1) A description of the reasons why
action by the agency is being
considered. A large number of motor

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carriers must hire drivers to operate
large commercial motor vehicles on the
nation’s roads and highways. These
drivers are responsible for safe, secure
and reliable operation of these vehicles
on the nation’s roads and highways.
Public concern regarding the safety of
commercial motor vehicles and their
operators has heightened awareness of
the limited driver safety performance
information available to prospective
motor carrier employers when making
hiring decisions. If prospective
employers had access to more
information about driver safety
performance history it would enable
employers to make more informed
decisions regarding the relative safety
risk of drivers who apply for
employment.
With enactment of section 114 of the
HazMat Act, Congress directed FMCSA
to revise its safety regulations to specify
additional minimum driver safety
performance information a prospective
employer must investigate from
previous employers. Additionally, the
HazMat Act sets a time limit for
previous employers to respond to the
investigations, and provides the driver
an opportunity to review and, if
necessary, correct or rebut the safety
performance information provided by
current or previous employers to the
prospective employer.
In response to industry concerns
about the legal liability which would
arise from providing information about
driver employment safety history,
Congress determined that the societal
importance of this information is
sufficient to grant limited liability to
motor carriers by preempting State and
local laws and regulations creating
liability. This is carried out in section
4014 of TEA–21. The liability limitation
applies to prospective and previous
employers, their agents, and their
insurance providers from defamation
suits when investigating, using or
providing accurate information about
safety performance histories of their
drivers. The right of drivers to review
such employer investigation records,
and to have them corrected or include
a rebuttal from the driver, is made
statutory. FMCSA is directed to develop
procedures for implementing these
requirements as part of the changes to
§ 391.23 mandated by section 114 of the
HazMat Act.
(2) A succinct statement of the
objectives of, and legal basis for, the
proposed rule. The legal bases for this
proposed rule are the Congressional
directives contained in section 114 of
the HazMat Act and section 4014 of
TEA–21. Congressional intent is to
ensure prospective motor carriers have

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access to increased information about
the safety performance history of
drivers, including access to
investigation information from prior
employers about driver applicants.
Regulations at § 391.23(a)(2) and (c)
currently require prospective employers
to investigate a driver’s employment
record with previous employers. The
regulations do not specify what
information prospective employers must
investigate, nor do they require previous
employers to respond to investigations
received from prospective employers.
Comments to the docket for this
rulemaking such as those from Dart and
Fleetline, Food Distributors
International, Interstate Truckload
Carriers Conference, American Movers
Conference, United Motor Coach
Association, and the National Private
Truck Council state that many previous
employers are either not responding, or
not providing any information other
than verification of employment and
dates.
Further, comments to docket FMCSA–
2001–9664 state that many previous
employing motor carriers either do not
respond to investigations for alcohol
and controlled substances information,
or do so belatedly, making the data of
questionable value in the hiring
decisions. Docket 9664 contains the
Federal Register notice and numerous
comments regarding the requirement of
section 226 of MCSIA for a Report to
Congress on the possibility of requiring
employers to report positive controlled
substances test results and for
prospective employers to check such a
computer source for the existence of
such information as part of the hiring
decision process. A copy of section 226
of MCSIA is included in the docket as
document 40.
The objective of this proposed
rulemaking is to improve the quantity
and quality of investigations made to
previous employers, as well as the
quantity, quality and timeliness of
background driver safety performance
information provided to prospective
employers. This should foster more
informed employment judgments about
the safety risks of potential new
employees, while affording drivers the
opportunity to review and comment on
the accuracy of information provided by
previous employers.
This proposed regulation specifies
minimum information that must be
investigated, and proposes process
modifications to facilitate this
information exchange so as to minimize
the reporting burden, including
establishing the limit on potential
liability of employers, their agents and

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insurance providers from defamation
lawsuits, etc.
(3) A description of, and, where
feasible, an estimate of the number of
small entities to which the proposed
rule will apply. This proposal will apply
to all motor carrier employers regulated
by the FMCSRs whose employees apply
to work for a motor carrier in interstate
commerce. This includes small motor
carriers as well as numerous entities in
other industries covered by the FMCSRs
because they operate their own private
commercial motor vehicles. Examples
include drivers who operate CMVs in
industrial categories such as: bakeries,
petroleum refiners, retailers, farmers,
bus and truck mechanics, cement
masons and concrete finishers, driver/
sales workers, electricians, heating, air
conditioning and refrigeration
mechanics and installers, highway
maintenance workers, operating
engineers and other construction
equipment operators, painters
construction and maintenance workers,
plumbers, pipefitters and steamfitters,
refuse and recyclable material
collectors, roofers, sheet metal workers,
telecommunications equipment
installers and repairers, welders, cutters,
solderers, and brazers.
The SBA regulations at 13 CFR part
121 specify Federal agencies should
analyze the impact of proposed and
final rules on small businesses using the
SBA Small Business Size Standards.
Where SBA’s standards do not
appropriately reflect the effects of a
specific regulatory proposal, agencies
may develop more relevant size
determinants for rulemaking.
The regulatory evaluation below
estimates the number of driver hiring
decisions affected by this proposed rule
at approximately 419,000 annually. This
estimate is a function of three
components, including (1) annual driver
turnover within the industry, (2) annual
employment growth within the
industry, and (3) an increase in the
number of drivers required to fill
vacancies left by those denied
employment when the background
information proposed in this SNPRM
becomes available to prospective
employers.
It is difficult to determine exactly how
many existing motor carriers would be
affected by this proposed rule, since it
is not known year-to-year how many
employers on average hire drivers.
However, it is known from the Motor
Carrier Management Information System
(MCMIS) that there are approximately
500,000 active motor carriers currently
operating in interstate commerce in the
United States (this includes both forhire and private motor carriers, but

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42347

deducts a number of carriers believed
not to be currently operating but still
having files within MCMIS). Data from
the 1997 Economic Census (U.S. Census
Bureau), Standard Industrial
Classification (SIC) Code 4213
‘‘Trucking, Except Local’’ indicates that
over 90 percent of trucking firms in that
SIC code had less than $10 million in
annual sales in 1997 ($10 million in
annual revenues represents the
threshold for defining small motor
carriers in this analysis).
Because the FMCSA does not have
annual sales data on private carriers, we
assume the revenue and operations
characteristics of the private trucking
firms would be generally similar to
those of for-hire motor carriers. Using
the 90-percent estimate to identify the
small business portion of the existing
industry indicates that 450,000 out of
500,000 total existing motor carriers
could be defined as small businesses
within this industry. Also, we had
estimated that a net 419,000 hiring
decisions would be affected by this
proposed rule annually. These 419,000
net annual hirings within the industry
represent 14 percent of the total three
million drivers currently employed
within the trucking industry. To be
conservative, we assumed that 14
percent of existing motor carriers would
be filling the 14 percent of driver
positions each year. Therefore, 14
percent of existing motor carriers
translates to 70,000 out of the 500,000
existing motor carriers who would be
hiring drivers each year.
We conservatively assumed that these
70,000 hiring employers would bear the
full cost of the data retention and
reporting on the 419,000 drivers to be
hired each year for the driver data
search, duplication, and reporting costs
incurred by previous employers for
providing the information. (This may
not be true based on FMCSA policy that
the previous employer cannot demand
payment as a condition for releasing the
data.) Conversely, if we assumed
previous employers would bear these
costs (and we assume at least one
previous employer to each driver over
the past three years), we could divide
compliance costs by 140,000 carriers.
However, to ensure we do not
underestimate the impact to small
employers, we will stick with the 70,000
estimate.
Total discounted compliance costs of
this proposed rule are estimated at $76
million over the 10-year analysis period
(2003–2012), while first-year costs (in
2003) are estimated at $10 million. If we
divide these first-year costs by the
70,000 hiring companies estimated to be
hiring drivers within a given year, the

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result is a total compliance cost of
roughly $143 per motor carrier in the
first year of implementation.
Data from the 1997 Economic Census,
SIC 4213 (derived from NAICS
Categories 484121, 484122, 484210, and
484230) divides trucking firms into 11

revenue categories, beginning with
those firms generating less than
$100,000 in annual gross revenues and
ending with those generating $100
million or more. As stated, ‘‘small’’
trucking firms are defined here as those
that generate less than $10 million in

annual revenues. The 1997 Economic
Census divides these firms into eight
specific revenue categories. The annual
revenue categories, the number of firms
in each, and the average annual
revenues of firms in each category are
listed below in Table 1.

TABLE 1.—AVERAGE ANNUAL REVENUES OF SMALL TRUCKING FIRMS (SIC 4213, ‘‘TRUCKING, EXCEPT LOCAL), BY
REVENUE CATEGORY
Number of firms/%
of total small firms

Revenue category ($1,000s)

Average annual
revenues
($1,000s)

Compliance costs
($143), as % of
avg. revenues
percent

Average pre-tax
profit margins, by
revenue size
(percent)

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

1,487 (5%)
8,715 (30%)
5,687 (19%)
4,890 (17%)
4,819 (16%)
2,414 (8%)
1,407 (5%)

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

0.21
0.09
0.04
<0.01
<0.01
<0.01
<0.01

9.5
9.5
9.5
9.5
2.8
2.9
3.5

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

29,419 (100%)

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

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

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

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

We applied the total first-year
regulatory compliance costs ($10
million) to the number of existing motor
carriers in the industry we anticipated
would be hiring drivers in that year
(70,000). As seen in the above table, the
compliance costs of this proposed rule
per existing motor carrier ($143)
represent 0.21 percent (or a little more
than 2/10 of one percent) of gross
annual revenues of the smallest firms
(i.e., those with annual gross revenues
less than $100,000). For the second
smallest revenue group, compliance
costs represent 0.09 percent of gross
revenues in the first year.
Data obtained from Robert Morris
Associates (RMA) in 1999 on pre-tax
profit margins of trucking firms in SIC
Code 4213 are contained in the righthand column of the above table. For all
firms with less than $1 million in
annual revenues, the RMA listed
average pre-tax profit margins of 9.5
percent. Since the 1997 Economic
Census data had additional revenue
categories, FMCSA applied the same
profit margins (9.5%) to all firms with
annual revenues of less than $1 million.
The data reveal that total discounted 10year costs to existing motor carriers
would reduce, although not eliminate
average pre-tax profits for carriers in any
of the carrier revenue groups. The
smallest revenue group in this table
(<$100,000 annual revenues), which
represents 5 percent of the firms in the
Economic Census table, would
experience an average reduction in pretax profit margins of 2.2 percent (0.25/
9.5=2.2%). For the second smallest
revenue group ($100—249.9), which

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represents 30 percent of the small
carriers in this motor carrier group, pretax profit margins are reduced by about
0.9 percent. For the third smallest
revenue group, the annual compliance
costs associated with this proposed rule
are expected to reduce these carriers’
average pre-tax profit margins by 0.4
percent.
(4) A description of the proposed
reporting, recordkeeping and other
compliance requirements of the
proposed rule, including an estimate of
the classes of small entities which will
be subject to the requirements and the
type of professional skills necessary for
preparation of the report.
Reporting. No new reporting to the
Federal government or a State is
required. New reporting is required by
all motor carrier employers of the
previous three years to prospective
motor carrier employers. For employees
who assert their right to disagree with
the investigative driver safety
performance data reported by that
previous employer, those previous
employers will also be required to work
with their previous employees.
In the case of alcohol and controlled
substances all previous employers
subject to DOT drug and alcohol
regulations or their agents, are required
by 49 CFR 40.25(h) to report specified
minimum employer investigative safety
performance history data for their
previous employees to prospective
employers upon receiving an
investigation.
Data to be provided would include at
least the following:

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1. Information verifying the driver
worked for that employer and the dates
of employment.
2. The driver’s three-year alcohol and
controlled substances history, an
increase of one year from the two-year
history now required, which will make
it the same as the already required
three-year retention of this data.
3. Information indicating whether the
driver failed to undertake or complete a
rehabilitation referral prescribed by a
SAP within the previous three years, but
only if that information is recorded with
the responding previous employer.
Previous employers would not be
required to seek alcohol and controlled
substance data they are not already
required to retain by part 382.
4. Information indicating whether the
driver illegally used alcohol and
controlled substances after having
completed a rehabilitation referral, but
only if recorded with the responding
previous employer. Previous employers
would not be required to seek alcohol
and controlled substances data they are
not already required to retain by part
382.
5. Information indicating whether the
driver was involved in any accidents as
defined in § 390.5.
Previous employers or their agents for
three years after a driver leaves their
employ will be required to respond
within 30 days to investigations from
prospective motor carriers about an
applicant and provide at least the
minimum information specified in this
proposed rulemaking.
Motor carriers are already required to
respond to alcohol and controlled

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substances inquiries under part 382.
However, requests for that data are the
last information requested in the
screening process because of the
requirement for a signed authorization
to release any such data, and this occurs
only for that portion of drivers still
under consideration for employment.
This proposed rule would enhance the
ability to take enforcement action if a
previous employer does not provide the
information required in a timely
manner.
All small entities for the previous
three years would now be required to
provide their employment investigative
safety performance history data. That
data, minus the alcohol and controlled
substances data, likely would be
requested routinely for all driver
applicants from all previous motor
carriers as part of the initial
employment screening process that does
not require signed authorization. For
those drivers still under consideration
for employment, the same previous
employers could receive a subsequent
second request for the alcohol and
controlled substances information.
The 1997 CDL Effectiveness study
contained a report of a focus group
meeting of motor carrier safety directors.
(CDL Focus Group Study, November
1996, copy of the Safety Director
comments are included in docket as
document 41.) It documents that a
number of motor carriers require drivers
to have obtained previous experience
driving a CMV before that motor carrier
will hire the driver. If some employers
operate more as employers of entry-level
drivers, then they could often be
required to provide investigation
information, but not get much benefit of
receiving such investigations from other
previous employers. In such cases, if the
motor carriers furnishing the
investigation data are small entities, the
costs could potentially rise to the level
of a significant economic impact on a
substantial number of small entities.
If such entities are unable to insist on
receiving payment for the costs of
performing this function prior to
releasing the data because of FMCSA
policy, there could be a negative impact
on them. FMCSA requests comments on
how significant this might be.
Recordkeeping. It is a largely accepted
industry practice that alcohol and
controlled substance information is kept
separately from the driver qualification
file. This is a practical arrangement that
assists employers to easily defend that
the data is adequately secured and
access to it is controlled, in compliance
with the recordkeeping requirements of
part 382.

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Employers are currently required by
§ 391.23(c) to keep prior employer
furnished investigative information in
the driver qualification file. Because 49
U.S.C. 508 restricts previous employer
investigative data to just the hiring
decision, this SNPRM proposes
changing the specification of where
previous employer investigative
information is kept to instead be with
the alcohol and controlled substance
data in the already established
controlled access, secure file. Because
such a file already exists, there should
be no significant impact on
recordkeeping requirements of
prospective employers.
Professional skills. Motor carriers are
already required to provide alcohol and
controlled substances data. That
function requires a person who is
designated as having controlled access
to that data. The addition of reporting
accident data could be an added
responsibility of the person already
required to report the alcohol and
controlled substances data.
(5) An identification, to the extent
practicable, of all Federal rules which
may duplicate, overlap, or conflict with
the proposed rule. The Fair Credit
Reporting Act (FCRA) specifies
procedures that must be followed by
consumer reporting agencies when
providing inquiry and investigative data
to motor carriers as part of the hiring
decision process. If such a consumer
reporting agency is also the agent of a
motor carrier, then there could be
overlap between proposals in this
SNPRM and the FCRA.
(6) A description of any significant
alternatives to the proposed rule which
accomplish the stated objectives of
applicable statutes and which minimize
any significant economic impact of the
proposed rule on small entities. The
FHWA published an NPRM on March
14, 1996 (61 FR 10548) following the
detailed prescriptive specifications
contained in section 114 of the HazMat
Act. It proposed processes for
investigations with previous employers
and use of that data in the hiring
decision process. This SNPRM responds
to additional prescriptive requirements
contained in section 4014 of TEA–21,
and to concerns expressed by various
commenters, including the SBA.
FMCSA believes that the alternatives
discussed in this SNPRM are the ones
available to the agency within the
mandates of the HazMat Act and the
TEA–21.
Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4; 2 U.S.C. 1532)

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42349

requires each agency to assess the
effects of its regulatory actions on State,
local, and tribal governments and the
private sector. Any agency promulgating
a final rule likely to result in a Federal
mandate requiring expenditures by a
State, local, or tribal government or by
the private sector of $100 million or
more in any one year must prepare a
written statement incorporating various
assessments, estimates, and descriptions
that are delineated in the Act. FMCSA
has determined that the changes
proposed in this rulemaking would not
have an impact of $100 million or more
in any one year.
Executive Order 12988 (Civil Justice
Reform)
This action meets applicable
standards in sections 3(a) and 3(b)(2) of
Executive Order 12988, Civil Justice
Reform, to minimize litigation,
eliminate ambiguity, and reduce
burden.
Executive Order 13045 (Protection of
Children)
Executive Order 13045, ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (April 23, 1997,
62 FR 19885), requires that agencies
issuing ‘‘economically significant’’ rules
that also have an environmental health
or safety risk that an agency has reason
to believe may disproportionately affect
children must include an evaluation of
the environmental health and safety
effects of the regulation on children.
Section 5 of Executive Order 13045
directs an agency to submit for a
‘‘covered regulatory action’’ an
evaluation of its environmental health
or safety effects on children. The agency
has determined that this rule is not a
‘‘covered regulatory action’’ as defined
under Executive Order 13045.
This rule is not economically
significant under Executive Order 12866
because the FMCSA has determined that
the changes in this rulemaking would
not have an impact of $100 million or
more in any one year. This rule also
does not concern an environmental
health risk or safety risk that would
disproportionately affect children.
Executive Order 12630 (Taking of
Private Property)
This rule will not effect a taking of
private property or otherwise have
taking implications under Executive
order 12630, Governmental Actions and
Interference with Constitutionally
Protected Property Rights.
Executive Order 13132 (Federalism)
The safety performance of drivers
operating commercial motor vehicles on

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the nation’s roads and highways is a
matter of national concern. Congress
recognized the need for mandating a
more complete background check of
drivers’ safety performance from
previous DOT regulated employers
when drivers apply to work for a new
motor carrier employer. This data is
vital to prospective employers
establishing a driver’s safety
performance history. In section 114 of
the HazMat Act, Congress directed
FMCSA (then FHWA) to amend its
regulations to specify the minimum
safety information that a motor carrier
must investigate from a driver’s former
DOT regulated employers, and require
those employers to provide that data to
the requesting motor carrier in a timely
fashion.
The motor carrier industries
expressed great concern that the
proposals in the 1996 NPRM could
subject them to considerable litigation
and expense by drivers denied
employment based on this data. In
section 4014 of TEA–21, Congress
responded to those concerns and
specifically granted limited liability to
employers and agents furnishing and
using this information by preempting
State and local laws and regulations
creating such liability. It directed
FMCSA to include provisions
addressing implementation of this
limited liability in a revision to the
previously issued 1996 NPRM.
Section 4014 of the 1998 TEA–21
explicitly says ‘‘No State or political
subdivision thereof may enact,
prescribe, issue, continue in effect, or
enforce any law (including any
regulation, standard, or other provision
having the force and effect of law) that
prohibits, penalizes, or imposes liability
for furnishing or using safety
performance records in accordance with
regulations issued by the Secretary to
carry out this section.’’ This Federal
preemption of State or local
jurisdictions’ liability rights is codified
at 49 U.S.C. 508, and is intended to
facilitate the transfer of this vital
investigative driver safety information
between DOT regulated employers. The
liability limitation does not apply if it
is proven the previous employer
provided incorrect information.
The Act replaces the litigation
alternative with a mandated
administrative process as the means for
a prospective driver to address their
privacy rights to challenge potentially
incorrect safety performance data
provided by a previous employer. This
mandated process would enable a driver
to review his/her investigative
information provided by a previous
DOT regulated employer, request

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correction of incorrect information, and
require inclusion of a driver provided
rebuttal if agreement is not reached
between the driver and the previous
employer furnishing the investigative
background information.
The Act says ‘‘* * * provide
protection for driver privacy and to
establish procedures for review,
correction, and rebuttal of the safety
performance records of a commercial
motor vehicle driver.’’ The process
proposed in this SNPRM is similar to
what is specified under the Fair Credit
Reporting Act (FCRA) (15 U.S.C. 1681 et
seq.) for protecting a person’s rights
when investigating previous employer
background information. Processes are
also proposed in this SNPRM for
recordkeeping to make it possible for
FMCSA to verify that previous and
prospective employers are conforming
to the agency’s proposed processes
protecting driver rights.
Drivers, State and local subdivisions,
and others still have the right to allege
non-compliance with these proposed
regulations by reporting to FMCSA
under its complaint procedures at 49
CFR 386.12. Such complaints could
result in an enforcement follow-up for a
motor carrier compliance review. An
increasing number of States are
participating under the MCSAP grants
as the investigating agents for FMCSA of
these motor carrier regulations, i.e., in
such States it is State agents that
perform motor carrier compliance
reviews. Thus, States could be the
investigating agents to verify that
employers are complying with the
driver protections proposed in this
SNPRM.
This action was analyzed in
accordance with the principles and
criteria contained in Executive Order
13132 that requires agencies to certify
they have evaluated Federalism issues.
The original NPRM was published in
1996 and there was no preemption of
State or local liability laws or
regulations in that proposal.
Consequently, the agency did not
receive any comments from elected
State or local officials on the
preemption issue.
We anticipate implementation of this
proposed rule change, in conformance
with the specification contained at 49
U.S.C. 508(c), would not add any
additional costs or preemption burdens
to States or local subdivisions. We also
anticipate these changes would have no
effect on the State or local subdivisions’
ability to discharge traditional
governmental functions.
Because the preemption requirement
set forth in this SNPRM was established
in 1998 by the TEA–21, this is the first

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time this preemption is being set forth
as a proposed regulatory change.
FMCSA is seeking comments on
possible compliance costs or
preemption implications from elected
State and local government officials as
part of this SNPRM stage.
Comments to the docket are sought
from State and local officials on whether
there may be any major concerns about
the proposed preemption of State and
local law and regulations for these
Federally protected interests. The
FMCSA is requesting States and local
government officials, or their
representatives, to express any concerns
they may have by submitting comments
to the public docket. The agency will
address any concerns prior to issuing a
final rule on this subject.
Executive Order 12372
(Intergovernmental Review)
Catalog of Federal Domestic
Assistance Program Number 20.217,
Motor Carrier Safety. The regulations
implementing Executive Order 12372
regarding intergovernmental
consultation on Federal programs and
activities do not apply to this program.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(PRA) (44 U.S.C. 3501 et seq.), requires
Federal agencies to obtain approval
from the Office of Management and
Budget (OMB) for each collection of
information they conduct, sponsor, or
require through regulations. FMCSA has
determined that the proposals in this
SNPRM would impact and/or reference
three currently-approved information
collections (IC), as follows: (1) Driver
Qualification Files, OMB Control No.
2126–0004 (formerly 2125–0065),
approved at 941,856 burden hours
through December 31, 2005; (2)
Accident Recordkeeping Requirements,
OMB Control No. 2126–0009 (formerly
2125–0526), approved at 37,800 burden
hours through September 30, 2005; and
(3) Controlled Substances and Alcohol
Use and Testing, OMB Control No.
2126–0012 (formerly 2125–0543),
approved at 573,490 burden hours
through August 31, 2004.
The effect of this SNPRM on the
burdens of the last two of these will be
minimal, and will relate primarily to the
length of time that records must be kept.
The FMCSA, while acknowledging that
there may be a minor impact associated
with these collections, is not making
estimates or discussing these minimal
impacts at this time. Instead, the agency
is focusing on the information collection
regarding Driver Qualification Files,
which will be impacted in a significant
manner by this proposed rule.

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For purposes of this information
collection, the agency is using 6,458,430
as the estimate of the number of
interstate and intrastate drivers that
could be impacted by this proposal.
Several existing FMCSA information
collections employ this number (OMB
Control No. 2126–0001—Drivers
Records of Duty Status; OMB Control
No. 2126–0004—Driver Qualification
Files; and OMB Control No. 2126–
0006—Medical Qualification Files). The
agency believes this high-end estimate
captures all drivers who may be affected
by the new information collection
burdens being proposed. The agency
continues to explore methods of more
precisely determining the number of
drivers that could be affected by FMCSA
regulations.
The truck driving industry is
characterized, in general, by a high
driver turnover rate. Previous
information collections have estimated
there are burden hours associated with
839,596 driver applications each year.
That represents 13 percent of the
6,458,430 truck driver positions.
Comments to the docket describe
various driver-screening processes used
by trucking companies to fill these
driver positions. However, no data is
currently available on how many
applicants, or what percentage of
applicants, are denied employment
using current screening practices.
FMCSA requests comments addressing
what the current denial rates may be
under existing driver screening
processes.
This proposed rule would provide
employers with more information about
the background and safety history of the
applicants for employment as drivers.
The agency estimates that an additional
10 percent of the driver applicants with
accidents over the last 3 years (14,300)
and 25 percent of the drivers with
positive alcohol or controlled
substances tests for the 1 additional year
(1,300) will be refused employment
because of the heightened scrutiny of
their background information. Rounded
up to the nearest thousand, this
represents 16,000 additional drivers that
will be involved in the hiring process.
Employing these figures, the agency
estimates this proposed rule would
require motor carriers to make requests
for driver safety background information
for a total of approximately 855,596
(839,596 + 16,000) drivers.
In addition, the proposed rule would
require the prospective employer to seek
information from all previous employers
for whom the applicant has worked in
the past 3 years. For purposes of this
information collection, the agency is
estimating that, on average, each

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applicant had 1.39 employers in the
past 3 years. Therefore, the number of
requests for background information
would be 1,189,278 (1.39 employers ×
855,596 drivers).
This proposed rule would also require
driver applicants to be advised they can
review, request correction, or rebut what
a previous employer provided as that
driver’s employment history with that
employer. The majority of these
notifications would be made via a
statement on the job application;
therefore, we are not assigning an
information collection burden for this
notification. We request comments on
whether there might be any significant
burden in sectors of the industry using
telephone job application processes.
The currently-approved Driver
Qualification Files information
collection can be broken down into two
sections: (1) Addressing the burdens of
prospective employers and driver
applicants during the hiring process,
and (2) addressing the burdens related
to carriers and drivers who are currently
employed (e.g., annual review). This
proposed rule would require revisions
to the first section and leave the second
section unchanged. In addition, it
would create a third section—to address
new burdens imposed by the proposed
rule on the former employers of drivers.
The resulting three elements of this
information collection, as proposed,
would be: (1) The hiring process
(prospective employers and driver
applicants), (2) the annual review
(current employers and drivers), and (3)
the responsibilities of previous
employers.
First Element of IC. The changes
proposed by this SNPRM to the first
item—the hiring process—address the
specific types and timeframes of
employment history to be requested
(includes accident data). The proposed
changes to specific types of safety
performance history requested and
timeframes of employment do not
increase the information collection
burden for the prospective employer
investigations as part of the hiring
process. However, prospective
employers would be required to notify
drivers of their right to review their
safety performance history received
from prospective employers and provide
them with that information, if
requested. The burden estimate for this
element is 1,333 burden hours (16,000
drivers × 5 minutes for prospective
employers to provide the data to each of
those drivers, divided by 60 minutes).
Another increase regarding the
various elements of the hiring process is
to adjust the number of driver
applicants estimate to include 16,000

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42351

additional drivers who would need to
apply to fill the positions of the 16,000
it is estimated would not be hired due
to enhanced safety performance history
data being received. The increase in the
various elements within the hiring
section results in an additional burden
of 4,799 hours for this first IC item (799
hours for the driver and motor carrier to
perform 16,000 additional employment
application-related activities + 4,000
hours for motor carriers to request
driving and safety performance history
data for 16,000 additional applicants).
Second Element of IC. The second
element of the Driver Qualification
Files—annual review—would be
unaffected by this proposal.
Third Element of IC. The third
element of this information collection is
created due to the changes made in this
SNPRM. In the past, previous employers
were not required to systematically
provide employment history on their
former employees. This proposal would
require all employers to provide driver
safety performance history data
(including accident data) for the 3-year
period preceding the date of the request.
The annual burden for this requirement
is estimated to be 99,107 burden hours
(855,596 drivers × an estimated 1.39
previous employers per driver × 5
minutes, divided by 60 minutes).
This rule also proposes a new right for
former drivers to protest or rebut
employment data supplied by previous
employers to prospective employers.
Prospective employers would be
required to provide the driver applicant
with copies of the information it
receives from the former employer.
Former employers would have a duty
and be required to: (1) Provide the past
employee/driver the opportunity to
rebut; (2) review a rebuttal, if submitted;
(3) amend records, if persuaded by the
rebuttal; (4) append the driver’s rebuttal
to the record, if not persuaded to revise
their records by the rebuttal; and (5)
keep a copy of the rebuttal with the file
and send: (a) the revised record to the
prospective employer, or a copy of the
driver’s rebuttal, and (b) the
employment history with the appended
rebuttal when requested in the future.
The agency assumes that 16,000
drivers would protest the employment
history provided by former employers.
The FMCSA estimates it would take
approximately 2 hours for the driver to
create and submit a protest. It is further
estimated that it would take the
previous employer 2 hours to address
and respond to each protest. Therefore,
the burden estimate for this activity is
64,000 hours ((16,000 × 2 hours per
protesting driver) + (16,000 × 2 hours
per previous employer)).

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

TABLE 2.—DRIVER QUALIFICATION
FILES INFORMATION COLLECTION
Estimated
burden
hours

New activity
Notification and driver rights .....
Adjustment for 16,000 additional applicants ....................
Providing 3 years of safety performance history ...................
Driver rebuttals .........................

1,333

99,107
64,000

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

169,239

4,799

Interested parties are invited to send
comments regarding any aspect of these
information collection requirements,
including, but not limited to: (1)
Whether the collection of information is
necessary for the performance of the
functions of the FMCSA, including
whether the information has practical
utility, (2) the accuracy of the estimated
burden and the various assumptions
made in this PRA section, (3) ways to
enhance the quality, utility, and clarity
of the information collection, and (4)
ways to minimize the collection burden
without reducing the quality of the
information collected.
National Environmental Policy Act
The Federal Motor Carrier Safety
Administration (FMCSA) is a new
administration within the Department of
Transportation (DOT). The FMCSA
analyzed this rule under the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) (NEPA), the Council
on Environmental Quality Regulations
Implementing NEPA (40 CFR 1500–
1508), and DOT Order 5610.1C,
Procedures for Considering
Environmental Impacts.
This rule would be categorically
excluded from further analysis and
documentation in an environmental

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assessment or environmental impact
statement under paragraph 4.c.(3) of
DOT’s Order as a project amendment
that does not significantly alter the
environmental impact of the action.
This rule would specify minimum
safety performance history information
to be sought and provided during the
course of a § 391.23(c)(1) investigation
into a driver’s employment history.
Executive Order 13211 (Energy Supply,
Distribution, or Use)
We have analyzed this rule under
Executive Order 13211, Actions
Concerning Regulations that
Significantly Affect Energy Supply,
Distribution, or Use. This action is not
a significant energy action within the
meaning of section 4(b) of the Executive
Order because it is not economically
significant and not likely to have a
significant adverse effect on the supply,
distribution, or use of energy.
Additionally, the Administrator of the
Office of Information and Regulatory
Affairs has not designated this rule as a
significant energy action. For these
reasons, a Statement of Energy Effects
under Executive Order 13211 is not
required.
Regulatory Evaluation: Summary of
Benefits and Costs
I. Background and Summary
The primary costs of this proposed
rule involve retaining, investigating,
providing, and reviewing additional
driver safety performance data by
employers (previous or current and
prospective) for use in hiring decisions.
Specific types of additional driver safety
performance data include driver
accident, alcohol/controlled substance
test, and rehabilitation program data.
Specific costs to previous or current
employers (hereafter referred to as
previous employers) include retaining
an additional two years of accident data
on each of its drivers and reporting such
investigative data to all prospective
employers of drivers for three years after
a driver leaves their employ. Current
regulations require employers to collect
and retain one year of accident data on
drivers, and no requirement to report to
prospective employers. Additionally,
previous employers would be required
to report on three years of alcohol/
controlled substances test and
rehabilitation program data to
prospective employers (in lieu of the
two years of data currently required by
existing regulations).
Previous employers are already
required by part 382 to report on driver
violations of Federal regulations
regarding alcohol and controlled

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substances use and/or failure to
complete rehabilitation programs within
the preceding two years. This SNPRM
proposes adding a requirement to the
§ 391.23 pre-employment investigation
requirements and increasing the number
of years to be reported by previous
employers from two to three years.
Specific costs to prospective
employers include investigating driver
accident and alcohol/controlled
substances data from previous
employers and using that data in hiring
decisions. Current regulations require
prospective employers to attempt to
obtain appropriate driver Motor Vehicle
Record(s) (MVRs) and to investigate
employment records for the preceding
three years.
FMCSA has a policy that previous
employers cannot make receiving
payment for their costs a condition of
providing alcohol and controlled
substances data. If this is also applied to
this new requirement of providing
accident data in response to
investigations, then the costs incurred
by previous employers for providing all
safety performance history information
will be largely borne by previous
employers. If these costs are relatively
equally shared, i.e., each employer gets
as much value from investigations to
other employers as from providing the
information, then who incurs these
costs is not directly important to
calculation of the estimated total costs
of this proposed SNPRM.
The 1997 CDL Effectiveness study
contained a report of a focus group
meeting of motor carrier safety directors.
(CDL Focus Group Study, November
1996, copy of the Safety Director
comments are included in the docket as
document 41.) It documents that a
number of motor carriers require drivers
to have obtained previous experience
driving a CMV before that carrier will
hire the driver. If some employers
operate more as employers of entry-level
drivers, then they could often be
required to provide investigation
information, but not get much benefit of
receiving such investigations from other
previous employers. In such cases, if the
motor carriers furnishing the
investigation data are small entities, the
costs could potentially rise to the level
of a significant economic impact on a
substantial number of small entities.
FMCSA requests comments regarding
any information that might indicate a
different analysis of costs should be
used if such inequalities might be
created by the existing FMCSA policy
preventing motor carriers who are
furnishing investigation information
from receiving payment for the

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

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associated with this proposed rule is
included in Table 3.

First-year costs associated with this
rule total $10 million, while total
discounted costs over the entire 10-year
analysis period total $76 million. These
TABLE 3.—SUMMARY OF COSTS,
figures represent our best estimate of the
2003–2012
costs associated with implementation of
[In millions of dollars]
this rule. Where uncertainties exist
regarding these cost estimates, we have
First Year Costs ....................................
$10
noted them in the discussion and invite
Total Discounted Costs, 10-Year Period ....................................................
76 comment.
The benefits associated with this rule
are contained in Table 4.

TABLE 4.—SUMMARY OF BENEFITS, 2003–2012
[In millions of dollars]

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

Total discounted
benefits, 10-year
analysis period

First-year
benefits

Benefits scenario
.......................................................................................................................................
Effect 2 ..........................................................................................................................
Effect 2 ..........................................................................................................................
Effect 2 ..........................................................................................................................

$6
7
8
10

$88
97
110
132

1 Under the ‘‘Direct Benefits Only’’ scenario, all truck-related accident reduction benefits result from those commercial drivers with the worst
safety performance records not being hired.
2 Under the three benefits scenarios including a ‘‘Deterrence Effect’’, FMCSA assumes that the availability of and easier access to new commercial driver safety performance data would result in some drivers improving their driving behavior for fear that prospective employers would
now use such data in future hiring decisions. Since we were unsure of the magnitude of this effect, we assessed the deterrence effect at zero,
10, 25, and 50 percent of direct truck-related accident reduction benefits.

In calculating benefits for this rule,
we attempted to account for both direct
and indirect benefits. Direct benefits are
reductions in truck-related accidents
that result from prospective employers
not hiring certain commercial drivers
(i.e., those with poor accident or
alcohol/controlled substance
information) because the new accident
and alcohol/controlled substance test
and program data was made available by

previous employers. Indirect benefits
are those associated with a deterrence
effect. The FMCSA assumes that the
availability of and easier access to new
commercial driver safety performance
data would cause some percentage of
drivers to improve their driving
behavior, for fear that prospective
employers would now obtain and use
such data in their hiring decisions.
Since we do not know the specific

magnitude of the deterrence effect
associated with this new data
availability, we calculated this effect as
a percent of the direct accident
reduction benefits from this rule.
Comparing total discounted costs and
benefits, we have calculated net benefits
estimates and benefit-cost ratios for this
rule. They are contained in Table 5.

TABLE 5.—SUMMARY OF NET BENEFITS AND BENEFIT-COST RATIOS, 2003–2012
[In millions of dollars]
Total discounted
net benefits 1

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

$12
21
34
56

Benefit-cost
ratio 2
1.16
1.27
1.45
1.74

1 Total Discounted Net Benefits were derived by subtracting the Total Discounted Cost estimate of $76 million in Table 3 from each of the Total
Discounted Benefits estimates in Column 3 of Table 4. For example, subtracting the $76 million in total discounted costs from Table 3 by the $88
million in Total Discounted Benefits under the ‘‘Direct Benefits Only’’ scenario of Table 4 yields Total Net Discounted Benefits of $12 million over
the 10-year analysis period (2003–2012) examined here.
2 Benefit-Cost Ratios were derived by dividing the Total Discounted Cost estimate of $76 million in Table 3 from each of the Total Discounted
Benefits estimates for each of the Benefits Scenarios located in Column 3 of Table 4. For example, dividing the $88 million in Total Discounted
Benefits under the ‘‘Direct Benefits Only’’ scenario of Table 4 by the $76 million in total discounted costs from Table 3 yields a Benefit-Cost Ratio
of 1.16 over the 10-year analysis period (2003–2012) examined here. A benefit-cost ratio greater than one implies that the rule is cost effective
to implement when comparing costs to benefits within the 10-year analysis period.

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

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SNPRM will be discussed separately in
the next two sections.
II. Costs
Accident Data
In 1997, the Gallup Organization
performed a study for ATA where they

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estimated that 403,000 commercial
drivers would need to be hired by the
trucking industry each year between the
years 1994 and 2005 in order to meet
projected demand. Of this total, Gallup
estimated that 320,000 (or 80 percent)
would need to be hired due to internal

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turnover (i.e., drivers switching trucking
companies), 35,000 (or 8 percent) would
need to be hired due to industry growth,
and 48,000 (or 12 percent) would need
to be hired due to attrition, retirement,
and external turnover (i.e., drivers
leaving trucking for alternative
industries).
We anticipate that this proposed rule
would alter some portion of the 403,000
driver hiring decisions made each year
within the trucking industry. Because
hiring managers will have additional
accident and alcohol/controlled
substance test data with which to select
drivers for positions, it is likely that the
new data would result in some drivers
(who previously would have been hired)
not being hired because of this rule. In
this analysis, we estimated that roughly
16,000 of the 403,000 commercial
drivers hired annually by the industry
would now be denied employment
because of the new accident and
alcohol/controlled substance test data
becoming available to prospective
employers. Of these 16,000 total
commercial driver applicants, 14,300
would not be hired because of the new
accident data and 1,300 would not be
hired because of the new alcohol/
controlled substance test and program
data. When rounded to the nearest 1,000
(our standard practice in this analysis),
it yields 16,000 total driver applicants
likely to be denied employment each
year as a result of this proposed rule.
Therefore, we estimated the total
number of drivers being considered/
hired for positions each year within the
trucking industry at 419,000 (403,000 +
16,000).
To calculate the new accident records
that would likely need to be stored and
reported on as part of this rule, we used
the average annual total for truck-related
accidents for 1999 and 2000, which is
equal to 445,000 (includes all truckrelated fatal, injury, and propertydamage-only accidents). Using an
estimate of 3 million as the total existing
driver population, we estimated the
number of annual accidents per driver
at 0.148 (i.e., 445,000/3 million). In this
analysis, we assumed drivers being
hired due to internal turnover (i.e.,
320,000 positions) would be
experienced drivers (i.e., with accident
records) and the remainder (i.e., those
hired due to attrition, retirement, and
industry growth) would be new drivers
(i.e., those without previous accidents).
As such, the number of accidents for
which the number of drivers being hired
each year would be responsible is equal
to 47,500 (i.e., 0.148 × 320,000).
Over three years, the number of
reportable accidents these drivers would
be involved in would total 143,000. We

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assumed for 10 percent of these
accidents (or almost 14,300 cases, after
rounding), the driver would not be hired
as a result. Assuming one accident per
driver, we estimate this new data would
reverse 14,300 of the 403,000 hiring
decisions made each year within the
industry. We believe the 10-percent
assumption is reasonable, given the
importance of accident data in
determining insurance rates and
forecasting potential liability costs for
trucking companies. For example, of the
average 445,000 truck-related annual
accidents reported in calendar years
1999 and 2000, one percent (or 4,450)
were fatal, 22 percent (or 98,000) were
injury-related, and 77 percent (or
343,000) were property-damage-only
(PDO).1 Also, FMCSA research into
NHTSA’s Fatal Accident Reporting
System (FARS) database reveals in
almost 30 percent of two-vehicle
accidents involving a large truck and
passenger vehicle, the driver of the
truck exhibited behavior that may have
contributed to the accident.2
Since the literature carefully notes a
‘‘contributing factor’’ cannot be equated
with crash causation (and FMCSA does
not yet have definitive data on crash
causation factors), we must assume that
in only a certain percentage of these
crashes did the truck driver’s behavior
actually cause the crash. We assume a
prospective employer would use
‘‘cause’’ as the primary criterion in
deciding whether to hire a driver or not.
In this analysis, we assumed that in
only one-third of these ‘‘contributing
factor’’ crashes, or 10 percent of all
crashes (i.e., 1⁄3 of 30% of all crashes =
10%), did the truck driver’s behavior
cause of the crash. In the other twothirds of ‘‘contributing factor’’ crashes,
we assumed the truck driver’s behavior
either did not in fact cause the crash or
that further investigation on cause was
inconclusive and the driver was hired.)
Therefore, in 14,300 of the cases where
three years of new accident data would
be made available the hiring decisions
would be reversed, i.e., the driver would
be denied employment. The FMCSA
invites comments regarding the
accuracy of these assumptions.
Regarding retention costs for this new
accident data, employers would be
required to store an additional two years
of all truck-related accidents, or 890,000
records, at an average of $0.15 per
record (according to the Association for
1 ‘‘Large Truck Crash Facts 2000’’, Federal Motor
Carrier Safety Administration, Analysis Division,
March 2002.
2 ‘‘Large Truck Crash Profile: The 1997 National
Picture’’, by the Analysis Division, Office of Motor
Carriers, Federal Highway Administration,
September 1998.

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Records Management Activities
(ARMA)).
Regarding new data reporting
requirements for the 419,000 drivers
being considered/hired annually within
the industry, 143,000 records (47,500
annual accident records × 3 years) will
now have to be reported annually by
previous employers to prospective
employers. Since each inquiry requires
a search (whether it yields past
accidents or not), 419,000 record
searches will have to be completed per
year (@ $1.57 per search according the
ARMA). For the 143,000 cases where an
accident is discovered within the
preceding three years, duplication of the
record will have to be performed (@
$1.33 per record according to ARMA)
and the original record will have to be
refiled in the driver’s file (@ $1.84 per
record according to ARMA). Lastly, we
assumed one letter would be mailed (@
$0.37 per letter via first-class mail) for
each of the 419,000 driver record
searches conducted annually (with the
letter either containing the data
investigated or a statement indicating
that no accidents were found).
Multiplying the cost per record for each
activity by the number of records
handled under each activity, total firstyear costs from (a) storing/retaining two
additional years of driver accident data,
(b) searching/retrieving, duplicating,
and refiling three years of accident data
in preparation for mailing, and (c)
mailing out the information are $1.4
million.
Alcohol and Controlled Substances
Test-Related Data
Using data from the 2001 FMCSA
Drug and Alcohol Testing Survey, we
estimated that an average of 5,100 of the
403,000 drivers hired annually within
the industry will fail random and nonrandom alcohol/controlled substances
tests each year and will be referred to a
rehabilitation. This proposed rule
requires one additional year of such
data to be reported to prospective
employers on the 419,000 drivers
considered/hired annually. Since each
inquiry requires a search (whether it
yields past data or not), 419,000 record
searches will have to be completed per
year (@ $1.57 per search according the
ARMA). Also, in the 5,100 cases where
a violation/referral is discovered for
reporting the additional year’s results,
duplication of the record will have to be
performed (@ $1.33 per record
according to ARMA) and the original
record will have to be refiled in the
driver’s file (@ $1.84 per record
according to ARMA). Lastly, we
assumed one letter would be mailed (@
$0.37 per letter via first-class mail) for

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each of the 419,000 driver record
searches conducted annually (with the
letter either containing the data
investigated or a statement indicating
that no test/program data were found).
Multiplying the cost per record for each
activity by the number of records
handled under each activity, total firstyear costs from: (a) Searching/retrieving,
duplicating, and refiling one year of
such data in preparation for mailing,
and (b) mailing out the information are
$0.8 million. Because of cost savings
and overlaps with the already existing
processes being performed, the actual
cost likely could be less.
In this analysis, we estimated that
roughly 25 percent (or 1,300) of those
5,100 commercial drivers who fail
random or non-random alcohol/
controlled substance tests annually,
who are referred to rehabilitation
programs, and who change employment
within the industry each year would
now be denied employment because of
the new alcohol/controlled substance
program data made available to
prospective employers. Coupled with
the 14,300 we earlier estimated would
not be hired because of the new
accident data, we have estimated a total
of 16,000 commercial driver applicants
likely to be denied employment as a
result of this proposed rule’s
implementation. This estimate will be
revisited when we estimate accident
reduction benefits.
Implicit in parts of the above
discussion, where we discussed the
number of driver safety performance
investigations to be made to previous
employers, we assumed one applicant
per job and therefore one set of
investigations to previous employers per
prospective driver, i.e., not multiple
drivers applying for one job each being
investigated to all previous employers.
This is likely an underestimate of the
true number of investigations likely to
be made to previous employers each
year, since in some cases a prospective
employer will request safety
performance data on more than just one
prospective driver. The safety directors
in the CDL Effectiveness Focus Group
Study (November 1996) reported having
to screen many drivers to obtain one
good driver to hire. ‘‘It will take 100
applications to find 10 or 20 good ones,
and that’s good.’’ Additionally, some
portion of prospective drivers will likely
have had more than one previous
employer within the last three years,
which would further increase the total
number of investigations made to
previous employers within a given year.
However, FMCSA was not able to
estimate with any certainty the number
of drivers a prospective employer might

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consider ‘‘serious candidates’’ for a
position and for whom safety
performance history data would be
requested. Additionally, although recent
estimates on industry turnover would
indicate that across all segments, an
average driver would likely be with the
same employer for three or more years,
it is well reported that some segments
have much higher turnover rates. In
such segments a prospective driver may
have had multiple employers within the
past three years. Given the relative
uncertainty in these numbers though,
we assumed one investigation per
position to be filled for the purposes of
this evaluation. The agency invites
comments regarding the accuracy of
these assumptions and encourages
commenters to provide data to support
their position.
Also, we know that some segments of
the industry initiates applications using
telephone and other means of
communication. As a result, the
prospective employer initiates the
required inquiries and investigations
based on the application before the
prospective employer has obtained the
signed driver authorization to obtain the
drug and alcohol data. Some portion of
these drivers will pass the initial
screening. They will be asked to provide
the signed authorization for the drug
and alcohol data.
These second stage screening
investigations for possible drug and
alcohol data would be to the same
previous employers who were
investigated for accident and other
safety performance history data. We do
not have enough data to estimate the
additional cost these employers would
bear for these multiple investigations for
the same driver application.
Costs To Notify Drivers of Rights To
Review Data
Under this proposed rule, the § 391.23
investigation into a driver’s employment
history involves the prospective
employer acquiring driver safety
performance data from previous
employers. Under this rule, data
obtained through investigation is
defined to include driver accident and
alcohol/controlled substances data. For
this analysis, we assumed that 419,000
drivers applying for positions would be
notified of such rights on their
employment applications, or via a
simple return letter sent to the driver
upon receipt of the application and
signed consent form (for the purposes of
retrieving accident and alcohol/
controlled substances data from
previous employers). Since we expect
that employers would have to purchase
new application forms (including the

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42355

new/revised information), we used the
difference between the current cost of a
standard application form (at $0.06 each
when purchased from a large office
supply distributor) and what we
believed would be the cost for the new
customized form ($0.12 each). For
419,000 applications, the annual cost to
provide this information to applicants is
much less than $0.1 million.
We do not have sufficient data to
estimate the costs that would be
incurred to provide the required
notification of driver rights by those
employers who initiate the application
process by telephone or other such
means rather than by a form application.
However, such costs would presumably
be relatively small. We invite comments
on this issue.
Costs Associated With Driver Data
Protests
This SNPRM provides that all drivers
have the right to review, comment on,
and refute the investigative employment
data provided by their previous
employers to prospective employers.
However, those drivers most likely to
refute such data are those denied
employment as a result of the
information. As such, we assume only
those drivers who are denied
employment as a result of the new data
(or 16,000 drivers) would contest their
safety performance data provided by a
previous employer.
For these 16,000 cases, we assumed
two additional hours of labor time spent
by each driver to file a request/protest
with their previous employer and two
additional hours of labor time spent by
each previous employer to address each
request/protest. We used an average
2001 hourly wage rate for trucking
managers of $35.94, obtained from a
cost-benefit analysis performed for
FMCSA by Moses and Savage, 1993, and
updated to 2001 using the GDP Price
Deflator. We multiplied this figure by
16,000 cases, yielding total costs to the
trucking company to address driver
protests of their data files of roughly
$1.1 million annually (undiscounted).
As stated, we also assumed the driver
would spend two hours filing the
protest with the previous employer.
Using the 2001 hourly wage rate of
$14.66 and 16,000 drivers, this cost
adds another $0.5 million to annual
total. Lastly, at $0.15 per record filing
(using ARMA recordkeeping estimates)
and 16,000 cases, filing activities add
only $2,300 to this cost. Totaling these
three components yields an annual total
cost to address driver protests of $1.6
million.
In estimating the driver and employer
costs associated with potential protests,

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

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expected reduction in accidents
resulting from the use of safer drivers by
industry. Specifically, additional driver
safety performance data used in the
hiring decision should result in denying
positions to the less safe drivers who
prior to this proposed rule would have
been hired. Additionally, it is
reasonable to assume this proposed rule
would generate a deterrence effect, since
studies of similar social problems and
policy approaches have quantified such
impacts (i.e., reducing alcohol-related
accidents via changes in penalties and
public attitudes). In this analysis, we
quantified the ‘‘direct’’ benefits
resulting from a reduction in accidents
due to changes in driver hiring
decisions. To estimate ‘‘indirect’’
benefits associated with a deterrence
effect, we conducted a sensitivity
analysis by assuming that the benefits
from a deterrence effect could range
anywhere from zero, 10 percent, 25
percent, or 50 percent of the direct
accident reduction benefits associated
with this rule.
Benefits Resulting From NewlyAvailable Accident Data
The first source of direct benefits
expected from this proposed rule would
occur as a result of trucking company
managers using driver accident data
from the three preceding years in their
hiring decisions. A study conducted by
the Volpe Center examined the
difference in accident rates for motor
carriers with a high number of previous
accidents versus those with a low
number of previous accidents. We used
the results of this study as a proxy for
the direct accident reduction potential
of this rule, under the logic that if a
hiring manager, using the new accident
data provided to him under this rule,
ends up hiring an applicant with a low
previous accident rate (or no accidents
in the recent past) in lieu of the
applicant with a high previous accident
rate, then accident reduction benefits
would accrue from this rule.
Using the study conducted by the
Volpe National Transportation Systems
Center, we discovered that motor
carriers identified as high-risk (based on
accidents experienced during a 36month period prior to identification)
had a post-identification accident rate of
81.4 accidents per 1000 power units
versus only 29.9 accidents per 1000
power units by carriers identified as
low-risk (based on the absence of past
accidents and hence no Accident Safety
Evaluation Area (SEA) score). Under the
premise that a motor carrier’s accident
profile is a direct extension of his
drivers’ profiles and is a result of that
carrier’s commercial driver hiring and

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screening process, then we can use
these results to examine differences in
drivers.
At a post-identification accident rate
difference of 51.5 accidents per 1000
power units between high- and low-risk
carriers, we converted this accident rate
difference to a per-driver rate by
assuming two drivers per power unit on
average within the industry (based on
information obtained at the Hours-ofService Roundtables, July 2000).
Therefore, the difference in accidents
per driver is .026 (i.e., 51.5/(1000 × 2))
over the 18-month post-identification
analysis period examined in the study.
Assuming an equal distribution of this
accident involvement differential over
the 18-month period following
identification, we estimated the annual
difference in accidents between drivers
with and without accidents within the
preceding 18 months to be 0.017
accidents per driver per year. Assuming
drivers not hired as a result of this
proposed rule would find alternative
employment as drivers after an average
of six months of searching, the accident
reduction differential used to calculate
benefits in this analysis was 0.0085 per
driver. By using such a conservative
estimate (i.e., it is likely that drivers
with a high number of past accidents or
alcohol/controlled substance violations
would find it difficult to secure
alternative positions within six months),
we are ensuring that our estimates of
accident reduction benefits will not be
overstated.
Using an average cost per truckrelated accident of $79,873 in 2002
dollars (taken from Zaloshnja, Miller,
and Spicer, and updated using the Gross
Domestic Product (GDP) Price Deflator),
we can estimate the value of accident
reduction benefits.
In the first year of the analysis period
(2003), one year of accident data (or
47,500 accident records) would be
available to prospective employers.
Based on an assumption that in 10
percent of these cases, the driver hiring
decision would be reversed, then 4,750
drivers would be denied employment
because of the newly-available accident
data. In the second year of the analysis
period (2004), two years of accident data
(or 95,000 records) are collected on
drivers and the number of hiring
decisions reversed rises to 9,500 (or 10
percent of the 95,000 records). In 2005
and thereafter, when this proposed rule
would be fully implemented, the
number of hiring decisions reversed
because of the new accident data would
rise to 14,300 (or 10 percent of the
143,000 newly-available accident
records for the 419,000 experienced
drivers hired each year).

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At an average cost per accident of
$79,873 in 2002 dollars, an accident
differential of .0085, and 4,750, 9,500,
and 14,300 drivers who are not hired in
2003, 2004, and 2005, respectively, the
discounted value of annual accident
reduction benefits is equal to $3.3
million in 2003, $6.5 million in 2004,
and $9.8 million in 2005 (when three
years of data become available to
prospective employers). This translates
to a total of 41, 81, and 122 accidents
avoided in these three years,
respectively, as a result of the newlyavailable accident data. Thereafter, the
accident reduction potential (122
accidents) remains the same as that in
2005, the year the accident data
retention and reporting requirement
would become fully implemented. Firstyear accident reduction benefits equal
$3.3 million, while total discounted
accident reduction benefits from the
new accident data are equal to $64
million (after rounding) over the 10-year
analysis period.
Alcohol and Controlled Substances Data
The second source of direct accident
reduction benefits would result from the
availability of driver alcohol and
controlled substance use and
rehabilitation program data by
prospective employers. The Motor
Carrier Management Information System
(MCMIS) contains information on the
number of accidents experienced by
drivers with and without alcohol or
controlled substances citations for the

period 1999–2001. Results reveal that
the difference in accidents for drivers
with and without citations for alcohol
and controlled substances violations is
.019 accidents per driver over a threeyear period (1999–2001). Assuming an
equal distribution of accident
involvement and driver exposure over
this three-year period, the difference in
accident profiles between drivers with
and without a citation for a serious
traffic violation is roughly 0.0633
accidents per driver per year.
As was done with the accident data,
we conservatively assumed that drivers
who are not hired into positions in any
given year because of the new data
would be able to find other driver
positions after an average of six months
of searching. As such, the accident
reduction differential used to calculate
benefits in this analysis was 0.0316 per
driver for new alcohol/controlled
substances data.
Recall that we estimated that 1,300
commercial driver applicants would
now be denied employment because of
the new alcohol/controlled substance
program data made available to
prospective employers. Using an
average cost per truck-related accident
of $79,873 and an annual difference in
accidents of .0316 per driver, annual
benefits associated with this provision
equal roughly $3.2 million in 2003. The
number of accidents avoided as a result
of the new driver alcohol and controlled
substance test and program data is equal
to 41 accidents each year between 2003

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and 2012 (i.e., 0.0316 × 1,280 drivers).
Total discounted accident reduction
benefits from the new alcohol/
controlled substance test and program
data over the 10-year analysis period are
estimated to be $24 million.
Benefits From a Deterrence Effect
We believe it is plausible to assume
there would be a ‘‘deterrence effect’’
associated with this rule, (i.e., where a
driver may strive to improve his safety
performance record if he knows that
such information would be available to
prospective employers in future hiring
decisions). However, we were unsure as
to the specific magnitude of this effect.
Therefore, we incorporated a sensitivity
analysis framework into this evaluation
by assuming that the deterrence effect
could range anywhere from zero, 10
percent, 25 percent, or 50 percent of the
value of direct accident reduction
benefits measured earlier. Since the
‘‘deterrence effect’’ benefits are a
percentage of the direct accident
reduction benefits associated with this
rule, they are identified in the next
section, where we discuss the total
benefits.
Total Benefits
Total benefits associated with this
rule are identified in Table 6 and are
separated according to our assumptions
regarding the magnitude of the
deterrence effect associated with this
rule.

TABLE 6.—SUMMARY OF BENEFITS, 2003–2012
[In millions of dollars

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

Total discounted
benefits, 10-year
analysis period

First-year
benefits

Benefits scenario
.......................................................................................................................................
Effect 2 ..........................................................................................................................
Effect 2 ..........................................................................................................................
Effect 2 ..........................................................................................................................

$6
7
8
10

$88
97
110
132

1 Under the ‘‘Direct Benefits Only’’ scenario, all truck-related accident reduction benefits result from the industry’s refusal to hire drivers with the
worst safety performance records.
2 Under the three benefits scenarios including a ‘‘Deterrence Effect’’, FMCSA assumes that the availability of and easier access to new commercial driver safety performance data would result in some drivers improving their driving behavior for fear that prospective employers would
now use such data in future hiring decisions. Since we were unsure of the magnitude of this effect, we assessed the deterrence effect at zero,
10, 25, and 50 percent of direct truck-related accident reduction benefits.

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

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benefits of this rule. Total discounted
benefits associated with this rule range
from a low of $88 million when we
assume no deterrence effect to a high of
$132 million when we assume the
deterrence effect is equal to 50 percent
of the direct accident reduction benefits.

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

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TABLE 7.—SUMMARY OF NET BENEFITS AND BENEFIT-COST RATIOS, 2003–2012
[In millions of dollars]
Benefits scenario

Total discounted
net benefits 1

Benefit-cost
ratio 2

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

$12
21
34
56

1.16
1.27
1.45
1.74

1 Total Discounted Net Benefits were derived by subtracting the Total Discounted Cost estimate of $76 million in Table 3 from each of the Total
Discounted Benefits estimates in Column 3 of Table 4. For example, subtracting the $76 million in total discounted costs from Table 2 by the $88
million in Total Discounted Benefits under the ‘‘Direct Benefits Only’’ scenario of Table 4 yields Total Net Discounted Benefits of $12 million over
the 10-year analysis period (2003–2012) examined here.
2 Benefit-Cost Ratios were derived by dividing the Total Discounted Cost estimate of $76 million in Table 3 from each of the Total Discounted
Benefits estimates for each of the Benefits Scenarios located in Column 3 of Table 4. For example, dividing the $88 million in Total Discounted
Benefits under the ‘‘Direct Benefits Only’’ scenario of Table 4 by the $76 million in total discounted costs from Table 3 yields a Benefit-Cost Ratio
of 1.16 over the 10-year analysis period (2003–2012) examined here. A benefit-cost ratio of greater than one implies that the rule is cost effective to implement when comparing costs to benefits within the 10-year analysis period.

Total net discounted benefits
associated with this rule over the 10year analysis period range from a low of
$12 million when we assume no
deterrence effect benefits, to a high of
$56 million when we assume the
magnitude of the deterrence effect is
equal to 50 percent of the direct
accident reduction benefits associated
with the rule. Correspondingly, benefitcost ratios range from a low of 1.16
when we assume no deterrence effect
benefits to a high of 1.74 when
deterrence effect benefits are assumed to
equal 50 percent of direct accident
reduction benefits.
List of Subjects
49 CFR Part 390
Highway safety, Intermodal
transportation, Motor carriers, Reporting
and recordkeeping requirements, Safety.
49 CFR Part 391
Alcohol abuse, Drug abuse, Drug
testing, Highway safety, Motor carriers,
Reporting and recordkeeping
requirements, Safety.
In consideration of the foregoing, the
FMCSA proposes to amend title 49 CFR
chapter III, parts 390, and 391 as set
forth below:
PART 390—FEDERAL MOTOR
CARRIER SAFETY REGULATIONS;
GENERAL [AMENDED]
1. The authority citation for 49 CFR
part 390 is revised to read as follows:
Authority: 49 U.S.C. 508, 13301, 13902,
31133, 31136, 31502, 31504, and sec. 204,
Pub. L. 104–88, 109 Stat. 803, 941 (49 U.S.C.
701 note); sec. 114, Pub. L. 103–311, 108 Stat.
1673, 1677; sec. 217, Pub. L. 106–159, 113
Stat. 1748, 1767; and 49 CFR 1.73.

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

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§ 390.15 Assistance in investigations and
special studies.

PART 391—QUALIFICATIONS OF
DRIVERS [AMENDED]

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

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

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

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

Application for employment.

*

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

*

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Federal Register / Vol. 68, No. 137 / Thursday, July 17, 2003 / Proposed Rules
(c) The investigation of the driver’s
employment record required by
paragraph (a)(2) of this section must be
completed within 30 days of the date
the driver’s employment begins. The
investigation may consist of personal
interviews, telephone interviews,
letters, or any other method for
investigating that the carrier deems
appropriate. Each motor carrier must
make a written record with respect to
each previous employer contacted. The
record must include the previous
employer’s name and address, the date
the previous employer was contacted,
and the information provided about the
driver. The record must be maintained
pursuant to § 391.53.
(d) The motor carrier must investigate,
at a minimum, the information listed in
this paragraph from all previous
employers that employed the driver to
operate a CMV within the previous
three years:
(1) General information about a
driver’s employment record;
(2) (i) Any accidents, as defined by
§ 390.5 of this subchapter, involving the
driver that occurred in the three-year
period preceding the date of the
employment application. The specific
information to be sought regarding any
accident is described in § 390.15(b)(1) of
this chapter.
(ii) Exception. Until [Insert date two
years after the effective date of the final
rule.] carriers need only provide
information for accidents that occurred
after [Insert date one year prior to the
effective date of the final rule.].
(e) The motor carrier must investigate
the information listed below in this
paragraph from all previous employers
that employed the driver within the
previous three years in a safety-sensitive
function, as defined under § 382.107 of
this chapter, that required controlled
substance and alcohol testing pursuant
to part 382 of this chapter:
(1) Whether, within the previous three
years, the driver had violated the
alcohol and controlled substances
prohibitions under subpart B of part 382
of this chapter.
(2) For a driver reported pursuant to
paragraph (e)(1) of this section, whether
the driver failed to undertake or
complete a rehabilitation program
prescribed by a substance abuse
professional (SAP) pursuant to
§ 382.605 of this chapter. If the previous
employer does not know this
information (e.g., an employer that
terminated an employee who tested
positive on a drug test), the prospective
motor carrier must obtain
documentation of the driver’s successful
completion of the SAP’s referral directly
from the driver.

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(3) For a driver reported pursuant to
paragraph (e)(1) of this section who had
successfully completed a SAP’s
rehabilitation referral, and remained in
the employ of the referring employer,
information on whether the driver had
the following testing violations
subsequent to completion of a § 382.605
referral:
(i) Alcohol tests with a result of 0.04
or higher alcohol concentration;
(ii) Verified positive drug tests;
(iii) Refusals to be tested (including
verified adulterated or substituted drug
test results).
(f) A prospective motor carrier must
provide to the previous motor carrier
the driver’s written consent for the
release of the information in paragraph
(e) of this section. If the driver refuses
to provide this written consent, the
prospective motor carrier must not
permit the driver to operate a
commercial motor vehicle for that motor
carrier.
(g) Previous employers must respond
to requests for the information in
paragraphs (d) and (e) of this section
within 30 days after the request is
received. The previous employer must
take all precautions reasonably
necessary to ensure the accuracy of the
records.
(h) The release of information under
this section may take any form that
reasonably ensures confidentiality,
including letter, facsimile, or e-mail.
The previous employer and its agents
and insurers must take all precautions
reasonably necessary to protect the
records from disclosure to any person
not directly involved in forwarding the
records, except the previous employer’s
insurer.
(i)(1) The prospective employer must
expressly notify the driver—via the
application form or other written
document—that he or she has the
following rights regarding the
investigative information provided to
the prospective employer pursuant to
paragraphs (d) and (e) of this section:
(i) The right to review information
provided by previous employers;
(ii) The right to have errors in the
information corrected by the providing
previous employer and for that previous
employer to re-send the corrected
information to the prospective
employer;
(iii) The right to have a rebuttal
statement attached to the alleged
erroneous information, if the submitting
previous employer disagrees with the
driver that the information is incorrect.
(2) Drivers wishing to review previous
employer-provided investigative
information must submit a written
request to the prospective employer.

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42359

The prospective employer must provide
this information to the applicant within
two (2) business days. If the prospective
employer has not yet received the
requested information from the previous
employer(s), then the two-business days
deadline will begin when the
prospective employer receives the
requested information. If the driver has
not arranged to pick up or receive the
requested records within thirty (30)
days, the prospective motor carrier may
consider the driver to have waived his/
her request to review the records.
(j)(1) Drivers wishing to correct
erroneous information in records
provided pursuant to paragraphs (d) and
(e) of this section must send the
allegation of error, proof of error, and
request to correct, to the previous
employer who provided the records to
the prospective employer.
(2) If the previous employer and the
driver agree the information in question
is erroneous, the previous employer
must correct the information and,
within thirty (30) business days after
receiving the driver’s allegation/proof/
request to correct, must send the
corrected information to the prospective
employer. The previous employer must
also retain the corrected information for
providing to subsequent prospective
employers when requests for this
information are received.
(3) If the previous employer and the
driver cannot agree the information in
question is erroneous, then the previous
employer must accept a rebuttal from
the driver, if he/or she wishes to
provide one, and within thirty (30)
business days after receiving the driver’s
allegation/proof/request to correct, must
send a copy of the driver’s rebuttal to
the prospective employer. The previous
employer must append the driver’s
rebuttal to the information in its file and
provide the complete appended
information to any subsequent
investigating prospective employer.
(k)(1) The prospective employer must
use the information described in
paragraphs (d) and (e) of this section
only to decide whether to hire the driver
who is the subject of those records.
(2) The prospective employer and its
agents and insurers must take all
precautions reasonably necessary to
protect the records from disclosure to
any person not directly involved in
deciding whether to hire the driver,
except that disclosure (excluding any
alcohol or controlled substances
information) may be made to the
prospective employer’s insurer for the
purpose of determining whether to
include the driver on carrier insurance.
(l)(1) No action or proceeding for
defamation, invasion of privacy, or

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

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

contact them. The record must include
the previous employer’s name and
address, the date the previous employer
was contacted, and the information
provided about the driver.
(c)(1) The record for a driver who is
hired must be retained for as long as the
driver is employed by that motor carrier
and for three years thereafter.
(2) The record for a driver who is not
hired must be retained for one year.
(d) A motor carrier shall make all
records and information in this file
available to an authorized representative
or special agent of the Federal Motor
Carrier Safety Administration or an
authorized State or local enforcement
agency representative, upon request or
as part of any inquiry within the time
period specified by the requesting
representative.
Issued on: July 11, 2003.
Annette M. Sandberg,
Acting Administrator.
[FR Doc. 03–18137 Filed 7–16–03; 8:45 am]
BILLING CODE 4910–EX–P

*

§ 391.53

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Parts 600 and 697
[I.D. 070203E]

Driver Employment History File.

(a) Each motor carrier must maintain
records relating to the investigation into
the employment history of a new or
prospective driver pursuant to
paragraphs (d) and (e) of this section.
This file must be maintained in a secure
location with controlled access.
(1) The motor carrier must ensure that
access to this data is limited to those
who are involved in the hiring decision
or who control access to the data. In
addition, the motor carrier’s insurer may
have access to the data (except the
alcohol and controlled substances data)
for the purpose of determining whether
to include the driver on the carrier’s
insurance policy.
(2) This data must only be used for
the hiring decision.
(b) The file must include:
(1) A copy of the driver’s written
authorization for the motor carrier to
seek information about a driver’s drug
and alcohol history as required under
§ 391.23(d).
(2) A copy of the response(s) received
to request for information under
paragraphs (d) and (e) of § 391.23 from
each previous employer, or
documentation of a good faith effort to

VerDate Jan<31>2003

18:18 Jul 16, 2003

Jkt 200001

Atlantic Coastal Fisheries Cooperative
Management Act Provisions;
Application for Exempted Fishing
Permit (EFP)
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notification of a request for an
EFP to harvest horseshoe crabs; request
for comments.
SUMMARY: NMFS announces that the
Director, Office of Sustainable Fisheries,
is considering issuing an EFP to Limuli
Laboratories of Cape May Court House,
NJ to conduct a third year of an
exempted fishing operation otherwise
restricted by regulations prohibiting the
harvest of horseshoe crabs in the Carl N.
Schuster Jr. Horseshoe Crab Reserve
(Reserve) located 3 nautical miles (nm)
seaward of the mouth of Delaware Bay.
NMFS is considering issuing an EFP for
the harvest of 10,000 horseshoe crabs for
biomedical purposes and requiring as a
condition of the EFP the collection of
data related to the status of Delaware
Bay horseshoe crabs within the Reserve.
Therefore, this document invites

PO 00000

Frm 00046

Fmt 4702

Sfmt 4702

comments on the issuance of an EFP to
Limuli Laboratories.
DATES: Comments on this action must be
received on or before August 1, 2003.
ADDRESSES: Written comments should
be sent to John H. Dunnigan, Director,
Office of Sustainable Fisheries, NMFS,
1315 East West Highway, Room 13362,
Silver Spring, MD 20910. Mark the
outside of the envelope ‘‘Comments on
Horseshoe Crab EFP Proposal.’’
Comments may also be sent via
facsimile (fax) to (301) 713–0596.
Comments will not be accepted if
submitted via e-mail or the Internet.
FOR FURTHER INFORMATION CONTACT: Tom
Meyer, Fishery Management Biologist,
(301) 713–2334.
SUPPLEMENTARY INFORMATION:
Background
The regulations that govern exempted
fishing, at 50 CFR 600.745(b) and 697.22
allow a Regional Administrator or the
Director of the Office of Sustainable
Fisheries to authorize for limited
testing, public display, data collection,
exploration, health and safety,
environmental clean-up and/or
hazardous removal purposes, the
targeting or incidental harvest of
managed species that would otherwise
be prohibited. An EFP to authorize such
activity may be issued, provided there is
adequate opportunity for the public to
comment on the EFP application, the
conservation goals and objectives of the
fishery management plan are not
compromised, and issuance of the EFP
is beneficial to the management of the
species.
The Reserve was established on
February 5, 2001 (66 FR 8906), to
provide protection for the Atlantic coast
stock of horseshoe crabs, and to promote
the effectiveness of the Atlantic States
Marine Fisheries Commission’s
(Commission) Interstate Fishery
Management Plan (ISFMP) for
horseshoe crab. The final rule
prohibited fishing for horseshoe crabs in
the Reserve and the possession of
horseshoe crabs on a vessel with a trawl
or dredge aboard while in the Reserve.
The rule did not allow for any
biomedical harvest or the collection of
fishery dependent data. However, in the
comments and responses section, NMFS
stated that it would consider issuing
EFPs for the biomedical harvest of
horseshoe crabs from the Reserve.
The biomedical industry collects
horseshoe crabs, removes approximately
30 percent of their blood, and returns
them alive to the water. Approximately
10 percent do not survive the bleeding
process. The blood contains a reagent
called Limulus Amebocyte Lysate (LAL)

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