Third Party Commercial Driver's License Testers; Withdrawal

Published date09 March 2022
Citation87 FR 13247
Record Number2022-04968
SectionProposed rules
CourtFederal Motor Carrier Safety Administration
Federal Register, Volume 87 Issue 46 (Wednesday, March 9, 2022)
[Federal Register Volume 87, Number 46 (Wednesday, March 9, 2022)]
                [Proposed Rules]
                [Pages 13247-13248]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2022-04968]
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                DEPARTMENT OF TRANSPORTATION
                Federal Motor Carrier Safety Administration
                49 CFR Part 383
                [Docket No. FMCSA-2018-0292]
                RIN 2126-AC14
                Third Party Commercial Driver's License Testers; Withdrawal
                AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
                of Transportation (DOT).
                ACTION: Notice of proposed rulemaking; withdrawal.
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                SUMMARY: FMCSA is withdrawing a notice of proposed rulemaking (NPRM) to
                allow States to permit a third party skills test examiner to administer
                the Commercial Driver's License (CDL) skills test to applicants to whom
                the examiner has also provided skills training, a practice now
                prohibited under FMCSA regulations. FMCSA takes this action after
                considering the comments received following publication of the NPRM, as
                explained further below.
                DATES: The proposed rule published July 9, 2019, at 84 FR 32689, is
                withdrawn as of March 9, 2022.
                FOR FURTHER INFORMATION CONTACT: Ms. Nikki McDavid, Chief, Commercial
                Driver's License Division, Federal Motor Carrier Safety Administration,
                1200 New Jersey Avenue SE, Washington, DC 20590-0001, (202) 366-0831,
                [email protected].
                SUPPLEMENTARY INFORMATION:
                Background
                 In October 2017, as part of the Department's review of existing
                regulations to evaluate their continued necessity and effectiveness,
                DOT published a ``Notification of Regulatory Review'' seeking public
                input on existing rules and other agency actions (82 FR 45750 (Oct. 2,
                2017)). In response to that notification, SAGE Truck Driving Schools
                (SAGE) recommended that FMCSA eliminate the prohibition, set forth in
                Sec. 383.75(a)(7), that prevents
                [[Page 13248]]
                States from permitting a third party skills examiner from administering
                a CDL skills test to an applicant who received skills training from
                that examiner. In support of its recommendation, SAGE asserted that the
                prohibition is unnecessary because: (1) State-based CDL testing
                compliance agencies have many other effective tools to detect and
                prevent fraud in CDL skills testing; (2) the rule causes significant
                inconvenience and cost for third party testers, CDL applicants, the
                transportation industry, and the public; (3) it needlessly makes CDL
                training and testing operation more difficult and costly, thereby
                exacerbating the CMV driver shortage; and (4) it contributes to CDL
                testing delays in some States.
                 On July 9, 2019, FMCSA published an NPRM \1\ to amend 49 CFR
                383.75(a)(7) to allow States to permit a third party skills test
                examiner to administer the CDL skills test to applicants to whom the
                examiner has also provided skills training. This practice is currently
                prohibited under 49 CFR 383.75(a)(7). When issuing the proposal, the
                Agency noted that lifting the restriction could potentially alleviate
                skills testing delays and reduce cost and inconvenience for third party
                testers and CDL applicants, without negatively impacting safety.
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                 \1\ To view the NPRM and comments, go to https://www.regulations.gov/document/FMCSA-2018-0292-0002.
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                 The Agency received 95 comments on the NPRM before the deadline of
                September 9, 2019. Most comments were submitted by individuals, many of
                whom identified themselves as trainers, testers, or drivers. Several
                organizations commented on the proposal, including the American Bus
                Association, Commercial Vehicle Training Association (CVTA), Truckload
                Carriers Association, National Limousine Association, American Trucking
                Associations, the Minnesota Trucking Association, and the Minnesota
                School Bus Operators Association. The following State driver licensing
                agencies also commented on the NPRM: Virginia Department of Motor
                Vehicles; Missouri Department of Revenue; Oregon Department of
                Transportation, Driver and Motor Vehicle Services; Washington State
                Department of Licensing; and Minnesota Department of Public Safety,
                Driver and Vehicle Services Division.
                 Most commenters opposed the NPRM, citing concerns about fraud,
                conflict of interest, or examiner bias. These commenters argued that
                allowing the same individual to train and test the applicant could
                undermine the integrity of the skills testing process, thereby
                negatively impacting safety. As one individual noted, ``The proposed
                rule removes the necessary impartiality of the CDL examiner, allowing
                the instructor to fail or pass student drivers with whom they have
                developed a relationship. This is not a fair assessment of the
                candidates' abilities.'' A commenter identifying as a trainer with 22
                years of experience expressed a similar concern, explaining that ``the
                reason another trainer has to test my student is to prevent bias or
                just passing them along.'' Another commenter said that, while some
                companies ``will do due diligence to make sure drivers are trained
                properly,'' lifting the restriction would remove necessary checks and
                balances from the skills testing process. The Minnesota Trucking
                Association stated that lifting the restriction ``would cause an
                increased risk of intentional and unintentional bias in testing
                results.'' One individual observed that current alternative approaches
                to detecting fraud in CDL testing, identified in the NPRM, ``rely on
                the principle of deterrence rather than prevention . . . which allows
                unqualified drivers to obtain their CDLs and legally operate
                [commercial] motor vehicles on public roadways without proper
                training--at least until the fraud is discovered.''
                 All of the States that commented on the NPRM (Virginia, Oregon,
                Washington, Minnesota, and Missouri) also raised concern that lifting
                the prohibition could negatively impact safety by undermining the
                integrity of skills testing. As Washington stated, the NPRM ``adds
                substantial risk'' to third party testing ``by introducing an apparent
                conflict of interest.''
                 Additionally, three States voiced concerns about accepting skills
                testing results for applicants tested in States that had lifted the
                restriction. Oregon stated that, while the proposed change is
                ``permissive in nature, given the requirement to accept out-of-State
                CDL skills test results, adoption by other jurisdictions will pose a
                risk that we have deemed unacceptable.'' Similarly, Virginia noted it
                would be ``unable to guard against fraud in these situations and that
                unsafe drivers will be licensed to drive interstate impacting safety in
                Virginia and elsewhere.'' Washington expressed ``strong concerns with
                accepting skills test results from other jurisdictions allowing [third
                party skills test examiners] to test the individuals they train.''
                 Most of the organizations that commented in support of the proposal
                believed that lifting the restriction would not compromise safety, due
                to the extensive fraud detection measures already in place. As CVTA
                noted, ``[t]hird party testing occurs within a powerful network of
                state and federal regulation . . . [which] upholds the integrity of the
                examination process because it monitors examiner activity to prevent
                fraud.'' Some individual commenters argued that permitting the same
                individual to train and test the applicant would not result in a
                conflict of interest. One instructor stated he finds the current
                restriction offensive because it presumes that ``all teachers are
                frauds and not trustworthy to test their own students.'' Several
                commenters asserted that lifting the restriction could enhance safety
                by expanding the opportunity for students to benefit from the expertise
                of different instructors.
                 Some commenters supporting the proposal said that it would increase
                flexibility and efficiencies for both applicants and third party
                testers and would alleviate skills testing delays. For example,
                Greyhound Lines, Inc. stated that ``[a]llowing Greyhound trainers to
                administer the CDL test to the drivers they train enables the drivers
                who pass the test to start their work assignments earlier than if they
                have to wait for a State-administered test.''
                 The Agency carefully considered all comments. FMCSA acknowledges
                the NPRM's potential for increasing the efficiency and flexibility of
                the skills testing process and reducing skills test delays.\2\ The
                Agency is persuaded, however, by numerous comments citing the NPRM's
                potential for undermining the integrity of the CDL skills testing
                process and negatively impacting highway safety. FMCSA has therefore
                decided to retain the current regulation (49 CFR 383.75(a)(7))
                prohibiting States from permitting a third party skills test examiner
                to administer the CDL skills test to applicants to whom the examiner
                has also provided skills training. The Agency hereby withdraws the July
                9, 2019, NPRM referenced above, based on the same legal authorities on
                which it issued the NPRM, set forth at 84 FR 32689, 32691.
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                 \2\ In the NPRM, FMCSA requested quantitative data addressing
                the impact of the current prohibition on skills testing delays, but
                did not receive data addressing this issue.
                 Issued under authority delegated in 49 CFR 1.87.
                Robin Hutcheson,
                Acting Administrator.
                [FR Doc. 2022-04968 Filed 3-8-22; 8:45 am]
                BILLING CODE 4910-EX-P
                

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