The Safety Performance History Records Request: What 391.23 Actually Makes You Do

49 CFR 391.23(a) reads like one duty and is two. Paragraph (a)(1) sends you to the driver’s licensing authority for a motor vehicle record. Paragraph (a)(2) sends you to every DOT-regulated employer the driver worked for in the preceding three years.

Different sources, different deadlines, and — the part that costs carriers at audit — different files. The MVR goes in the driver qualification file, listed at 391.51(b)(2). The safety performance history does not go there at all. It goes in the driver investigation history file under 49 CFR 391.53, which must be kept “in a secure location with controlled access” and, under 391.53(a)(1), may only be opened by people involved in the hiring decision or who control access to the data — plus your insurer, which under that same paragraph may see the file except the alcohol and controlled substances data.

That split is the most common structural error in this process. The rest of this article is how to run the request and prove you ran it.

What is a safety performance history records request?

It is the inquiry you send to a driver’s previous DOT-regulated employers under 391.23(a)(2), asking a narrow, rule-defined list of questions about the preceding three years. The regulation calls it an investigation, not a form, and the wording is deliberate.

391.23(c)(2) says it “may consist of personal interviews, telephone interviews, letters, or any other method for investigating that the carrier deems appropriate.” No mandated form, no mandated channel. Paragraph (h) adds that the release “may take any form that reasonably ensures confidentiality, including letter, facsimile, or e-mail.”

What the rule does mandate is documentation. Paragraph (c)(2) requires a written record for each previous employer contacted, or good faith efforts to do so, containing the employer’s name and address, the date contacted or the attempts made, and the information received. Then the sentence carriers skip: “Failures to contact a previous employer, or of them to provide the required safety performance history information, must be documented.” The non-answer is itself a record you are required to create.

The three-year window is statutory — FMCSA stated in 2004 that it “is specified in the HazMat Act. FMCSA therefore has no latitude” (69 FR 16684, 16688). And the application is what makes the request buildable: 391.21(b)(10) requires the applicant to list each employer for the prior three years with dates and reason for leaving, plus two checkboxes — whether he was subject to the FMCSRs there, and whether the job was safety-sensitive under part 40. Those checkboxes sort each employer into the (d) bucket or the (e) bucket. The further list at 391.21(b)(11) — for CDL applicants, the employers in the 7-year period preceding the 3 years in (b)(10), which is where the familiar “ten-year history” comes from — informs your judgment; it does not extend the investigation. Our walkthrough of the 391.21 application and the driver application checklist cover the form.

What exactly do you have to ask for?

Two different question sets, aimed at two different lists of employers.

“All previous employers that employed the driver to operate a CMV” is narrower than “everyone on the application.” A warehouse job is not a paragraph (d) employer.

The accident data is six fields, and the threshold is high. Paragraph (d)(2) points at the accident register elements in 390.15(b)(1): date; city or town, or most near, and State; driver name; number of injuries; number of fatalities; and whether hazardous materials other than fuel from the vehicle’s own tanks were released. No narrative, no fault column. And “accident” is defined at 49 CFR 390.5 as a fatality, bodily injury where someone immediately receives medical treatment away from the scene, or disabling damage requiring a tow — expressly excluding occurrences involving only boarding and alighting, and only loading or unloading cargo.

Everything below that line is voluntary. Paragraph (d)(2)(ii) covers “any accidents the previous employer may wish to provide” under 390.15(b)(2) or its own internal minor-accident policy. Backing incidents, curb strikes, yard damage, a load shift that cost a customer money — none of it is mandatory disclosure. That is the largest structural blind spot in the mandatory record.

The drug and alcohol half mostly runs through the Clearinghouse now. Since January 6, 2023, 391.23(e)(4) requires employers subject to 382.701(a) to use the Clearinghouse to satisfy this section with respect to FMCSA-regulated employers. Two carve-outs still need a direct request: an applicant subject to follow-up testing who has not completed all of them — you request the plan from the previous employer under 40.25(b)(5) — and any previous employer regulated by a DOT mode other than FMCSA. Watch the window on that second one: the part 40 inquiry at 40.25(b) reaches employers “during any period during the two years before the date of the employee’s application or transfer.” Two years, against 391.23’s three.

One case does not end at a non-answer. Under (e)(2), if the previous employer does not know whether the driver completed a substance abuse professional’s referral, you must obtain that documentation directly from the driver.

Which 30 days is which?

There are four clocks here and only one of them is the 391.23 file deadline. Merging them is how carriers either panic about a driver who is fine to run, or run one who is not.

Read the first two rows against each other. 391.23(c)(1) is a filing obligation — it says what must be in a folder on day 30 and prohibits nothing. 40.25(d) is a real prohibition on work. And (c)(1) says one thing in your favor: any period consumed by the driver exercising review, correction or rebuttal rights “is separate and apart from this 30-day requirement.”

If the driver has no DOT-regulated employment in the prior three years you are still not excused. Paragraph (c)(4) requires “documentation that no investigation was possible” in the file inside the same 30 days.

How do you run the request, step by step?

What do you do when a previous employer never answers?

Document the non-answer, keep working the other employers, and treat the 386.12 referral as a document for your file rather than a way to force a response.

Start with what they owed you. 391.23(g)(1) requires a response within 30 days after the request is received, and states that where there is nothing to report the previous employer is “nonetheless required to send a response confirming the non-existence of any such data, including the driver identification information and dates of employment.” Silence is not a permissible answer.

Paragraph (c)(3) gives you a route: prospective employers “should report failures of previous employers to respond to an investigation to the FMCSA and use the complaint procedures specified at § 386.12.” Note the modal — reporting is advisory. The next sentence is not: “Keep a copy of the reports in the driver investigation history file as part of documenting a good faith effort.” FMCSA said the same in the 2004 preamble, listing “documentation of having reported previous employers to FMCSA using the procedures at Sec. 386.12” among the ways an employer documents its efforts to comply (69 FR 16684, 16690).

Before building a workflow on it, read what 386.12(a)(1) is. It covers an allegation of “a substantial violation,” defined as “one which could reasonably lead to, or has resulted in, serious personal injury or death,” filed no later than 90 days after the event, with the National Consumer Complaint Database or any FMCSA Division Administrator, signed, and naming the specific provisions believed violated. Whether a routine non-response clears that bar is not settled in any source. Use the mechanism; do not promise anyone an outcome.

FMCSA has been candid that gaps here are unsolved: “the problem with possible gaps in employment history based on this process is well known. It includes former employers that have gone out of business, as well as those not listed by the driver applicant when applying for a job” (69 FR 16684, 16688).

What rights does the driver have, and on what schedule?

Three rights, and most of the deadlines belong to the previous employer rather than to you.

Three details settle most arguments. Correction requests do not come to you — (j)(1) sends them to the previous employer that provided the record, which is separately required by (g)(3) to supply contact information for exactly that purpose. A correction propagates forward: the previous employer must retain the corrected version and give it to subsequent prospective employers. A rebuttal rides along for the duration of the three-year data retention requirement, and under (j)(5) a driver may rebut without first requesting a correction. If the previous employer refuses either, the driver has his own 386.12 route under (j)(6).

How may you use what comes back, and what protects you?

Only for the hiring decision — and the legal shield is conditional on you having followed the procedure.

391.23(k)(1) limits use of the (d) and (e) information to “deciding whether to hire the driver.” (k)(2) requires you, your agents and your insurers to protect it from anyone not directly involved in that decision, and bars you from giving the alcohol and controlled substances information to your own insurer. The mirror restriction binds the previous employer under (h).

Then the protection, and its limit. Paragraph (l)(1) bars actions for defamation, invasion of privacy, or interference with a contract “based on the furnishing or use of information in accordance with this section.” Paragraph (l)(2) takes it away from “persons who knowingly furnish false information, or who are not in compliance with the procedures specified for these investigations.” And 49 U.S.C. 508(b)(1) conditions the shield on the carrier having complied with the Secretary’s regulations, “including the requirement that the individual who is the subject of the records be afforded a reasonable opportunity to review and comment on the records.”

So the Step 4 notice is not paperwork. Skip it, or use the information for anything other than the hiring decision, and what you lose is the immunity. Federal law does preempt state and local law penalizing the furnishing or use of these records (508(c)) — with the same “in accordance with regulations issued by the Secretary” condition attached.

What is on your checklist that is no longer a rule?

The annual certificate or list of violations under 391.27. Rescinded effective May 9, 2022 as duplicative of the annual MVR inquiry; the section now reads [Reserved] (87 FR 13192). Many DQ-file audit templates still list it. The same final rule notes that eliminating 391.27 “does not preclude employers from requiring their drivers to provide a list of their traffic convictions as a condition of employment” — keep it as company policy if you want, but do not carry it into an audit as a regulation.

The Pre-Employment Screening Program does not discharge this duty either. 49 U.S.C. 31150(c) makes PSP non-mandatory and limits it to preemployment assessment, and 31150(a) limits its contents to crash reports, inspection reports with no driver-related violations, and serious driver-related violation inspection reports. There is no previous-employer response in it at all. Our guide to reading a PSP report covers what it does carry, the MVR check article covers the (a)(1) half of this section, and how CSA scoring works covers where these violations land on your own DOT number.

How long do you keep it, and who can demand it?

For a driver you hire: the length of employment plus three years. For an applicant you do not hire, 391.53 is silent. That silence is deliberate — FMCSA dropped a proposed one-year retention requirement for non-hired applicants in 2004, reasoning that “if the driver is not hired, it is not relevant to safety concerns whether the prospective employer performed the investigations and inquiries required by Sec. 391.23” (69 FR 16684, 16690).

Do not merge the periods, because they differ:

391.53(d) is what makes this file an audit target: you must make everything in it available to an authorized FMCSA representative or special agent, an authorized State or local enforcement representative, or an authorized third party, “upon request or as part of any inquiry within the time period specified by the requesting representative.” Their window, not yours.

One caution on penalties. Civil penalty amounts are inflation-adjusted, and the part 386 penalty schedules state that the adjusted figures in them supersede the corresponding amounts printed in title 49 of the U.S. Code. Recordkeeping and other FMCSR violations — the category a botched investigation file falls into — sit in appendix B to part 386; appendix A covers violations of notices and orders. Any dollar figure you find in an article goes stale; pull the current one from the appendix itself and FMCSA’s most recent adjustment rule.

What the completed investigation still cannot tell you

It cannot tell you how the driver behaved. Run all six steps correctly and what you hold is identification data, dates of employment, six accident-register fields above a tow-away threshold, and a Clearinghouse result. That is the whole mandatory list.

Nothing in the request asks whether he finished the contract, showed up, answered dispatch, or how the equipment came back. The minor accident detail that would fill part of that gap is expressly voluntary. A previous employer that wants to say nothing beyond the minimum can comply fully and tell you nothing you did not already know from the application. And a meaningful share of the time you will not get even the minimum: the employer folded, ignored the letter, or was never listed. Your file will be compliant and your picture will be empty — the same blindness behind the true cost of a bad driver hire and the first 24 hours of an abandonment.

That gap is what a peer-written behavioral layer is built for. On cdlscan, carriers write reviews of drivers they actually employed, so observations that never became a DOT-recordable accident or a Clearinghouse entry — reliability, communication, condition of returned equipment, whether the driver finished what he started — still leave a trace tied to a period of employment. Our overview of how carrier-written driver reviews work covers the format, and the comparison with what carriers see in a DAC report covers the commercial employment-history side.

Say the boundary plainly, because it is not a formality: this is an additional layer on top of the mandatory record, never a substitute for any part of it. The (a)(1) MVR inquiry, the (a)(2) safety performance history investigation, the Clearinghouse query and the 391.53 file are legally required and nothing here replaces one of them. Run them exactly as written, then add whatever helps you read the result. If you intend to rely on third-party information about a candidate as a factor in a hiring decision, ask the provider which category of information they consider it under the Fair Credit Reporting Act and confirm the resulting obligations with your own counsel.

Frequently asked questions