[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withdrawn as of March 9, 2022.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]
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