Effective April 29, 2004
Changes to Driver Qualification Requirements
Part 390 - GENERAL
Sec. 390.5 Definitions.
Previous employer means any DOT regulated
person who employed he driver in the preceding 3 years, including any possible
current employer.
* * * * *
Section 390.15 is revised to read as follows:
Sec. 390.15 Assistance in investigations and special studies.
(a) A motor carrier must make all records and information pertaining to an accident
available to an authorized representative or special agent of the Federal Motor
Carrier Safety Administration, an authorized State or local enforcement agency
representative or authorized third party representative, upon request or as
part of any investigation within such time as the request or investigation may
specify. A motor carrier shall give an authorized representative all reasonable
assistance in the investigation of any accident including providing a full,
true and correct response to any question of the inquiry.
(b) For accidents that occur after April 29, 2003, motor carriers must maintain
an accident register for three years after the date of each accident. For accidents
that occurred on or prior to April 29, 2003, motor carriers must maintain an
accident register for a period of one year after the date of each accident.
Information placed in the accident register must contain at least the following:
(1) A list of accidents as defined at Sec. 390.5 of this chapter
containing for each accident:
(i) Date of accident.
(ii) City or town, or most near, where the accident occurred and
the State where the accident occurred.
(iii) Driver Name.
(iv) Number of injuries.
(v) Number of fatalities.
(vi) Whether hazardous materials, other than fuel spilled from the fuel tanks
of motor vehicle involved in the accident, were released.
(2) Copies of all accident reports required by State or other governmental entities
or insurers.
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PART 391--QUALIFICATIONS OF DRIVERS
In Sec. 391.21, paragraphs (b)(10) and (d) are revised to read as follows:
Sec. 391.21 Application for employment.
(b) * * *
(10)(i) A list of the names and addresses of the applicant's employers during
the 3 years preceding the date the application is submitted,
(ii) The dates he or she was employed by that employer,
(iii) The reason for leaving the employ of that employer,
(iv) After October 29, 2004, whether the (A) Applicant was subject to the FMCSRs
while employed by that previous employer,
(B) Job was designated as a safety sensitive function in any DOT regulated mode
subject to alcohol and controlled substances testing requirements as required
by 49 CFR part 40;
* * * * *
(d) Before an application is submitted, the motor carrier must inform the applicant
that the information he/she provides in accordance with paragraph (b)(10) of
this section may be used, and the applicant's previous employers will be contacted,
for the purpose of investigating the applicant's safety performance history
information as required by paragraphs (d) and (e) of Sec. 391.23. The prospective
employer must also notify the driver in writing of his/her due process rights
as specified in Sec. 391.23(i) regarding information received as a result of
these investigations.
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In Sec. 391.23, revise paragraphs (a)(2), (b) and (c), and add new paragraphs (d) through (l) to read as follows:
Sec. 391.23 Investigations and inquiries.
(a) * * *
(1) * * *
(2) An investigation of the driver's safety performance history with Department
of Transportation regulated employers during the preceding three years.
(b) A copy of the driver record(s) obtained in response to the inquiry or inquiries
to each State driver record agency required by paragraph (a)(1) of this section
must be placed in the driver qualification file within 30 days of the date the
driver's employment begins and be retained in compliance with Sec. 391.51. If
no driving record exists from the State or States, the motor carrier must document
a good faith effort to obtain such information, and certify that no record exists
for that driver in that State. The inquiry to the State driver record agencies
must be made in the form and manner each agency prescribes.
(c)(1) Replies to the investigations of the driver's safety performance history
required by paragraph (a)(2) of this section, or documentation of good faith
efforts to obtain the investigation data, must be placed in the driver investigation
history file, after October 29, 2004, within 30 days of the date the driver's
employment begins. Any period of time required to exercise the driver's due
process rights to review the information received, request a previous employer
to correct or include a rebuttal, is separate and apart from this 30-day requirement
to document investigation of the driver safety performance history data.
(2) The investigation may consist of personal interviews, telephone interviews,
letters, or any other method for investigating that the carrier deems appropriate.
Each motor carrier must make a written record with respect to each previous
employer contacted, or good faith efforts to do so. The record must include
the previous employer's name and address, the date the previous employer was
contacted, or the attempts made, and the information received about the driver
from the previous employer. Failures to contact a previous employer, or of them
to provide the required safety performance history information, must be documented.
The record must be maintained pursuant to Sec. 391.53.
(3) Prospective employers should report failures of previous employers to respond
to an investigation to the FMCSA following procedures specified at Sec. 386.12
of this chapter and keep a copy of such reports in the Driver Investigation
file as part of documenting a good faith effort to obtain the required information.
(4) Exception. For a drivers with no previous employment experience working
for a DOT regulated employer during the preceding three years, documentation
that no investigation was possible must be placed in the driver history investigation
file, after October 29, 2004, within the required 30 days of the date the driver's
employment begins.
(d) The prospective motor carrier must investigate, at a minimum, the information
listed in this paragraph from all previous employers of the applicant that employed
the driver to operate a CMV within the previous three years. The investigation
request must contain specific contact information on where the previous motor
carrier employers
should send the information requested.
(1) General driver identification and employment verification information.
(2) The data elements as specified in Sec. 390.15(b)(1) of this chapter for
accidents involving the driver that occurred in the three-year period preceding
the date of the employment application.
(i) Any accidents as defined by Sec. 390.5 of this chapter.
(ii) Any accidents the previous employer may wish to provide that are retained
pursuant to Sec. 390.15(b)(2), or pursuant to the employer's internal policies
for retaining more detailed minor accident information.
(e) In addition to the investigations required by paragraph (d) of this section,
the prospective motor carrier employers must investigate the information listed
below in this paragraph from all previous DOT regulated employers that employed
the driver within the previous three years from the date of the employment application,
in a safety-sensitive function that required alcohol and controlled substance
testing specified by 49 CFR part 40.
(1) Whether, within the previous three years, the driver had violated the alcohol
and controlled substances prohibitions under subpart B of part 382 of this chapter,
or 49 CFR part 40.
(2) Whether the driver failed to undertake or complete a rehabilitation program
prescribed by a substance abuse professional (SAP) pursuant to Sec. 382.605
of this chapter, or 49 CFR part 40, subpart O. If the previous employer does
not know this information (e.g., an employer that terminated an employee who
tested positive on a drug test), the prospective motor carrier must obtain documentation
of the driver's successful completion of the SAP's referral directly from the
driver.
(3) For a driver who had successfully completed a SAP's rehabilitation referral,
and remained in the employ of the referring employer, information on whether
the driver had the following testing violations subsequent to completion of
a Sec. 382.605 or 49 CFR part 40, subpart O referral:
(i) Alcohol tests with a result of 0.04 or higher alcohol concentration;
(ii) Verified positive drug tests;
(iii) Refusals to be tested (including verified adulterated or substituted drug
test results).
(f) A prospective motor carrier employer must provide to the previous employer
the driver's written consent meeting the requirements of Sec. 40.321(b) for
the release of the information in paragraph (e) of this section. If the driver
refuses to provide this written consent, the prospective motor carrier employer
must not permit the driver to operate a commercial motor vehicle for that motor
carrier.
(g) After October 29, 2004, previous employers must:
(1) Respond to each request for the DOT defined information in paragraphs (d)
and (e) of this section within 30 days after the request is received. If there
is no safety performance history information to report for that driver, previous
motor carrier employers are nonetheless required to send a response confirming
the non-existence of any such data, including the driver identification information
and dates of employment.
(2) Take all precautions reasonably necessary to ensure the accuracy of the
records.
(3) Provide specific contact information in case a driver chooses to contact
the previous employer regarding correction or rebuttal of the data.
(4) Keep a record of each request and the response for one year, including the
date, the party to whom it was released, and a summary identifying what was
provided.
(5) Exception. Until May 1, 2006, carriers need only provide information for
accidents that occurred after April 29, 2003.
(h) The release of information under this section may take any form that reasonably
ensures confidentiality, including letter, facsimile, or e-mail. The previous
employer and its agents and insurers must take all precautions reasonably necessary
to protect the driver safety performance history records from disclosure to
any person not directly involved in forwarding the records, except the previous
employer's insurer, except that the previous employer may not provide any alcohol
or controlled substances information to the previous employer's insurer.
(i)(1) The prospective employer must expressly notify drivers with Department
of Transportation regulated employment during the preceding three years--via
the application form or other written document prior to any hiring decision--that
he or she has the following rights regarding the investigative information that
will be provided to the prospective employer pursuant to paragraphs (d) and
(e) of this section:
(i) The right to review information provided by previous employers;
(ii) The right to have errors in the information corrected by the previous employer
and for that previous employer to re-send the corrected information to the prospective
employer;
(iii) The right to have a rebuttal statement attached to the alleged erroneous
information, if the previous employer and the driver cannot agree on the accuracy
of the information.
(2) Drivers who have previous Department of Transportation regulated employment
history in the preceding three years, and wish to review previous employer-provided
investigative information must submit a written request to the prospective employer,
which may be done at any time, including when applying, or as late as 30 days
after being employed or being notified of denial of employment. The prospective
employer must provide this information to the applicant within five (5) business
days of receiving the written request. If the prospective employer has not yet
received the requested information from the previous employer(s), then the five-business
days deadline will begin when the prospective employer receives the requested
safety performance history information. If the driver has not arranged to pick
up or receive the requested records within thirty (30) days of the prospective
employer making them available, the prospective motor carrier may consider the
driver to have waived his/her request to review the records.
(j)(1) Drivers wishing to request correction of erroneous information in records
received pursuant to paragraph (i) of this section must send the request for
the correction to the previous employer that provided the records to the prospective
employer.
(2) After October 29, 2004, the previous employer must either correct and forward
the information to the prospective motor carrier employer, or notify the driver
within 15 days of receiving a driver's request to correct the data that it does
not agree to correct the data. If the previous employer corrects and forwards
the data as requested, that employer must also retain the corrected information
as part of the driver's safety performance history record and provide it to
subsequent prospective employers when requests for this information are received.
If the previous employer corrects the data and forwards it to the prospective
motor carrier employer, there is no need to notify the driver.
(3) Drivers wishing to rebut information in records received pursuant to paragraph
(i) of this section must send the rebuttal to the previous employer with instructions
to include the rebuttal in that driver's safety performance history.
(4) After October 29, 2004, within five business days of receiving a rebuttal
from a driver, the previous employer must:
(i) Forward a copy of the rebuttal to the prospective motor carrier employer;
(ii) Append the rebuttal to the driver's information in the carrier's appropriate
file, to be included as part of the response for any subsequent investigating
prospective employers for the duration of the three-year data retention requirement.
(5) The driver may submit a rebuttal initially without a request for correction,
or subsequent to a request for correction.
(6) The driver may report failures of previous employers to correct information
or include the driver's rebuttal as part of the safety performance information,
to the FMCSA following procedures specified at Sec. 386.12.
(k)(1) The prospective motor carrier employer must use the information described
in paragraphs (d) and (e) of this section only as part of deciding whether to
hire the driver.
(2) The prospective motor carrier employer, its agents and insurers must take
all precautions reasonably necessary to protect the records from disclosure
to any person not directly involved in deciding whether to hire the driver.
The prospective motor carrier employer may not provide any alcohol or controlled
substances information to the prospective motor carrier employer's insurer.
(l)(1) No action or proceeding for defamation, invasion of privacy, or interference
with a contract that is based on the furnishing or use of information in accordance
with this section may be brought against--
(i) A motor carrier investigating the information, described in paragraphs (d)
and (e) of this section, of an individual under consideration for employment
as a commercial motor vehicle driver,
(ii) A person who has provided such information; or
(iii) The agents or insurers of a person described in paragraph (l)(1)(i) or
(ii) of this section, except insurers are not granted a limitation on liability
for any alcohol and controlled substance information.
(2) The protections in paragraph (l)(1) of this section do not apply to persons
who knowingly furnish false information, or who are not in compliance with the
procedures specified for these investigations.
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In Sec. 391.51, paragraph (b)(2) and the last line for Office of Management and Budget authority are revised to read as follows:
Sec. 391.51 General requirements for driver qualification files.
(b) * * *
(2) A copy of the response by each State agency concerning a driver's driving
record pursuant to Sec. 391.23(a)(1);
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Add a new Sec. 391.53 to read as follows:
Sec. 391.53 Driver Investigation History File.
(a) After October 29, 2004, each
motor carrier must maintain records relating to the investigation into the safety
performance history of a new or prospective driver pursuant to paragraphs (d)
and (e) of Sec. 391.23. This file must be maintained in a secure location with
controlled access.
(1) The motor carrier must ensure that access to this data is limited to those
who are involved in the hiring decision or who control access to the data. In
addition, the motor carrier's insurer may have access to the data, except the
alcohol and controlled substances data.
(2) This data must only be used for the hiring decision.
(b) The file must include:
(1) A copy of the driver's written authorization for the motor carrier to seek
information about a driver's alcohol and controlled substances history as required
under Sec. 391.23(d).
(2) A copy of the response(s) received for investigations required by paragraphs
(d) and (e) of Sec. 391.23 from each previous employer, or documentation of
good faith efforts to contact them. The record must include the previous employer's
name and address, the date the previous employer was contacted, and the information
received about the driver from the previous employer. Failures to contact a
previous employer, or of them to provide the required safety performance history
information, must be documented.
(c) The safety performance histories received from previous employers for a
driver who is hired must be retained for as long as the driver is employed by
that motor carrier and for three years thereafter.
(d) A motor carrier must make all records and information in this file available
to an authorized representative or special agent of the Federal Motor Carrier
Safety Administration, an authorized State or local enforcement agency representative,
or an authorized third party, upon request or as part of any inquiry within
the time period specified by the requesting representative.
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