[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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withdrawn as of March 9, 2022.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.
---------------------------------------------------------------------------

    \1\ To view the NPRM and comments, go to https://www.regulations.gov/document/FMCSA-2018-0292-0002.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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


