The Crittenden Automotive Library

Third Party Commercial Driver's License Testers

Third Party Commercial Driver's License Testers

Raymond P. Martinez
Federal Motor Carrier Safety Administration
9 July 2019

[Federal Register Volume 84, Number 131 (Tuesday, July 9, 2019)]
[Proposed Rules]
[Pages 32689-32697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14225]

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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

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: FMCSA proposes 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. Under this proposal, States would have the option to permit
this practice, which is currently prohibited under FMCSA rules. The
Agency believes that allowing States to permit this practice could
alleviate CDL skill testing delays and reduce inconvenience and cost
for third party testers and CDL applicants, without negatively
impacting safety.

[[Page 32690]]

DATES: Comments on this document must be received on or before
September 9, 2019.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2018-0292 using any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: West Building, Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m.
and 5 p.m., Monday through Friday, except Federal holidays.
Fax: 202-493-2251.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section for instructions on submitting
comments, including collection of information comments for the Office
of Information and Regulatory Affairs, OMB.

FOR FURTHER INFORMATION CONTACT: Ms. Nikki McDavid, Chief of the CDL
Division, Federal Motor Carrier Safety Administration, 1200 New Jersey
Avenue SE, Washington, DC 20590-0001, by email at
Nikki.mcdavid@dot.gov, or by telephone at 202-366-0831. If you have
questions on viewing or submitting material to the docket, contact
Docket Services, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: This notice of proposed rulemaking (NPRM) is
organized as follows:

I. Public Participation and Request for Comments
A. Submitting comments
B. Viewing comments and documents
C. Privacy Act
D. Waiver of Advance Notice of Proposed Rulemaking
II. Executive Summary
III. Abbreviations
IV. Legal Basis
V. Background
VI. Discussion of Proposed Rulemaking
VII. Section-by-Section
VIII. Regulatory Analyses
A. Executive Order (E.O.) 12866 (Regulatory Planning and
Review), E.O. 13563 (Improving Regulation and Regulatory Review),
and DOT Regulatory Policies and Procedures
B. E.O. 13771 (Reducing Regulation and Controlling Regulatory
Costs)
C. Regulatory Flexibility Act
D. Assistance for Small Entities
E. Unfunded Mandates Reform Act of 1995
F. Paperwork Reduction Act
G. E.O. 13132 (Federalism)
H. E.O. 12988 (Civil Justice Reform)
I. E.O. 13045 (Protection of Children)
J. E.O. 12630 (Taking of Private Property)
K. Privacy
L. E.O. 12372 (Intergovernmental Review)
M. E.O. 13211 (Energy Supply, Distribution, or Use)
N. E.O. 13175 (Indian Tribal Governments)
O. National Technology Transfer and Advancement Act (Technical
Standards)
P. Environment (NEPA)

I. Public Participation and Request for Comments

A. Submitting Comments

If you submit a comment, please include the docket number for this
NPRM (Docket No. FMCSA-2018-0292), indicate the specific section of
this document to which each section applies, and provide a reason for
each suggestion or recommendation. You may submit your comments and
material online or by fax, mail, or hand delivery, but please use only
one of these means. FMCSA recommends that you include your name and a
mailing address, an email address, or a phone number in the body of
your document so that FMCSA can contact you if there are questions
regarding your submission.
To submit your comment online, go to www.regulations.gov, put the
docket number, FMCSA-2018-0292, in the keyword box, and click
``Search.'' When the new screen appears, click on the ``Comment Now!''
button and type your comment into the text box on the following screen.
Choose whether you are submitting your comment as an individual or on
behalf of a third party and then submit.
If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
FMCSA will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments. FMCSA may issue a final rule at any time after the close of
the comment period.
Confidential Business Information
Confidential Business Information (CBI) is commercial or financial
information that is customarily not made available to the general
public by the submitter. Under the Freedom of Information Act, CBI is
exempt from public disclosure. If you have CBI that is relevant or
responsive to this NPRM, it is important that you clearly designate the
submitted comments as CBI. Accordingly, please mark each page of your
submission as ``confidential'' or ``CBI.'' Submissions designated as
CBI and meeting the definition noted above will not be placed in the
public docket of this NPRM. Submissions containing CBI should be sent
to Mr. Brian Dahlin, Chief, Regulatory Evaluation Division, 1200 New
Jersey Avenue SE, Washington, DC 20590. Any commentary that FMCSA
receives that is not designated specifically as CBI will be placed in
the public docket for this rulemaking.
FMCSA will consider all comments and material received during the
comment period.

B. Viewing Comments and Documents

To view comments, as well as any documents mentioned in this
preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FMCSA-2018-0292, in the
keyword box, and click ``Search.'' Next, click the ``Open Docket
Folder'' button and choose the document to review. If you do not have
access to the internet, you may view the docket online by visiting the
Docket Management Facility in Room W12-140 on the ground floor of the
DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590,
between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal
holidays.

C. Privacy Act

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.

D. Waiver of Advance Notice of Proposed Rulemaking

Under the Fixing America's Surface Transportation Act (FAST Act)
(Pub. L. 114-94), FMCSA is required to publish an advance notice of
proposed rulemaking (ANPRM) or conduct a negotiated rulemaking ``if a
proposed rule is likely to lead to the promulgation of a major rule''
(49 U.S.C. 31136(g)(1)). As this proposed rule is not likely to result
in the promulgation of a major rule, the Agency is not required to
issue an ANPRM or to proceed with a negotiated rulemaking.

[[Page 32691]]

II. Executive Summary

49 CFR 383.5 defines a ``third party skills test examiner'' as a
person employed by a third party tester who is authorized by the State
to administer the CDL skills test. Section 383.75(a)(7) prohibits a
third party skills test examiner who is also a skills instructor from
administering the CDL skills test to an applicant who received skills
training from that examiner. The Agency proposes to remove that
restriction and permit the States to allow this practice at their
discretion.
Removing the restriction may reduce testing delays and improve how
quickly a driver could be hired. Additionally, the increased efficiency
in skills testing could benefit third party testers and CDL applicants
by reducing the time and cost spent to complete testing. FMCSA believes
the proposed change would not undermine the integrity or effectiveness
of CDL skills training or testing. The Agency's proposal to remove the
skills testing restriction on third party examiners responds to public
comment received in response to the DOT's Notification of Regulatory
Review (82 FR 45750 (Oct. 2, 2017)), discussed further below. This
proposal, if adopted as a final rule, would be a deregulatory action as
defined by Executive Order (E.O.)13771, ``Reducing Regulation and
Controlling Regulatory Costs.''
Costs and Benefits
The proposed removal of the restriction would not impose new costs
on Commercial Learner's Permit holders (CLP) holders, SDLAs, motor
carriers, third party testers or third party skills examiners. FMCSA
believes the proposed change may increase the efficiency of CDL skills
testing by reducing testing delays and improving how quickly a driver
may be hired while maintaining an equivalent level of safety.

III. Abbreviations and Acronyms

ANPRM Advance Notice of Proposed Rulemaking
BEA Bureau of Economic Analysis
BLS Bureau of Labor Statistics
CDL Commercial Driver's License
CDLIS Commercial Driver's License Information System
CFR Code of Federal Regulations
CLP Commercial Learner's Permit
CMV Commercial Motor Vehicle
CMVSA Commercial Motor Vehicle Safety Act
CSTIMS Commercial Skills Test Information Management System
DOT U.S. Department of Transportation
E.O. Executive Order
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
FR Federal Register
IT Information Technology
MAP-21 Moving Ahead for Progress in the 21st Century Act
MPR Master Pointer Record
NAICS North American Industry Classification System
NPRM Notice of Proposed Rulemaking
OMB Office of Management and Budget
PIA Privacy Impact Assessment
PII Personally Identifiable Information
PRA Paperwork Reduction Act
RFA Regulatory Flexibility Act
RIA Regulatory Impact Analysis
RIN Regulation Identifier Number
SBA Small Business Administration
SDLA State Driver Licensing Agency
Sec. Section Symbol
U.S.C. United States Code

IV. Legal Basis for the Rulemaking

This NPRM would modify a requirement adopted in the final rule,
``Commercial Driver's License Testing and Commercial Learner's Permit
Standards'' (78 FR 17875 (Mar. 25, 2013)). This proposed change is
based primarily on the broad authority of the Commercial Motor Vehicle
Safety Act of 1986, as amended (the 1986 Act) (Pub. L. 99-570, Title
XII, 100 Stat. 3207-170, codified at 49 U.S.C. chapter 313), which
established the CDL program. The 1986 Act required the Secretary, after
consultation with the States, to prescribe uniform minimum standards
for the issuance of CDLs, including ``minimum standards for written and
driving tests of an individual operating a commercial motor vehicle''
(49 U.S.C. 31305(a)(1)). This proposal would amend one of the current
CDL testing requirements imposed on the States.
This NPRM is also consistent witth the concurrent authorities of
the Motor Carrier Safety Act of 1984, as amended (the 1984 Act) (Pub.
L. 98-554, Title II, 98 Stat. 2832, codified at 49 U.S.C. 31136); and
the Motor Carrier Act of 1935, as amended (the 1935 Act) (Chapter 498,
codified at 49 U.S.C. 31502). The 1984 Act grants the Secretary broad
authority to issue regulations ``on commercial motor vehicle safety,''
including to ensure that ``commercial motor vehicles are . . . operated
safely.'' 49 U.S.C. 31136(a)(1). The proposed change is consistent with
the safe operation of CMVs. In accordance with section 31136(a)(2), the
removal of the restriction on third party examiners would not impose
any ``responsibilities . . . on operators of commercial motor vehicles
[that would] impair their ability to operate the vehicles safely.''
This proposed rule does not directly address medical standards for
drivers (section 31136(a)(3)) or possible physical effects caused by
driving CMVs (section 31136(a)(4)). FMCSA does not anticipate that
drivers would be coerced (section 31136(a)(5)), as a result of this
rulemaking.
The Motor Carrier Act of 1935, codified at 49 U.S.C. 31502(b),
provides that ``The Secretary of Transportation may prescribe
requirements for--(1) qualifications and maximum hours of service of
employees of, and safety of operation and equipment of, a motor
carrier; and (2) qualifications and maximum hours of service of
employees of, and standards of equipment of, a motor private carrier,
when needed to promote safety of operation.'' This NPRM, addressing
skills testing requirements, is related to the safe operation of motor
carrier equipment .
Lastly, the Administrator of FMCSA is delegated authority under 49
CFR 1.87 to carry out the functions vested in the Secretary of
Transportation by 49 U.S.C. Chapters 311, 313, and 315 as they relate
to commercial motor vehicle operators, programs, and safety.

V. Background

On May 9, 2011, FMCSA published a final rule amending the CDL
knowledge and skills testing standards and establishing minimum
Commercial Learner's Permit Standards (76 FR 26854). That final rule
included a provision prohibiting driver training schools from
administering the CDL skills test to applicants who received skills
training from that school, unless there is no skills testing
alternative location within 50 miles of the school and an examiner does
not train and test the same skills applicant (Sec. 383.785(a)(7)). In
adopting the prohibition, FMCSA noted that its purpose was ``to reduce
both the opportunity for fraud and unintended bias in skills testing.''
\1\
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\1\ 76 FR 26854, 26869 (May 9, 2011).
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Following publication of the May 9, 2011 final rule, FMCSA received
petitions requesting reconsideration of Sec. 383.75(a)(7) on the
grounds that the prohibition was too restrictive and would create
hardship for States, training schools, and motor carriers. The Agency
granted the petitions,\2\ ultimately revising the provision in a March
25, 2013, final rule (78 FR 17875). In the 2013 final rule, FMCSA
acknowledged the ``hardship and unintended consequences that this
provision could cause for States,

[[Page 32692]]

schools, and aspiring CDL holders.'' \3\ Accordingly, the revised (and
current) version of Sec. 383.75(a)(7), in effect since April 24, 2013,
permits CDL training schools to skills-test their student applicants,
as long as the individual examiner who provided skills training to the
applicant does not administer the skills test to that applicant. In
making this change, FMCSA noted that ``prohibiting individual examiners
from administering skills tests to student applicants they have trained
will further the Agency's and Congress's fraud prevention objectives.''
\4\
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\2\ See ``Before the Federal Motor Carrier Safety
Administration, Decision on Petition for Reconsideration'' (August
12, 2012), available in Docket No. FMCSA-2007-27659.
\3\ 78 FR 17875, 17877 (Mar. 25, 2013).
\4\ Id.
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In October 2017, as part of the Administration's ongoing efforts to
review existing regulations to evaluate their continued necessity and
determine whether they are crafted effectively to solve current
problems, DOT published a ``Notification of Regulatory Review'' seeking
the public's 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 a third
party skills examiner from administering a CDL skills test to an
applicant who received skills training from that examiner.\5\ In
support of its recommendation, SAGE made the following points: (1) The
prohibition is unnecessary because State-based CDL testing compliance
agencies have many other effective tools to detect and prevent fraud in
CDL skills testing; (2) it 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.
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\5\ This comment is available at: https://www.regulations.gov/document?D=DOT-OST-2017-0069-2671.
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For the reasons discussed below, FMCSA agrees with SAGE's
recommendation to remove the current prohibition on third party skills
test examiners and proposes to amend Sec. 383.75(a)(7) accordingly.

VI. Discussion of Proposed Rule

The Agency, having reconsidered the efficacy of Sec. 383.75(a)(7)
in light of SAGE's comments, proposes to permit third party examiners
to administer the skills test to CDL applicants to whom they have also
provided skills training. Under this approach, States utilizing third
party examiners would have the flexibility to determine whether
examiners may test CDL applicants they also trained. The decision to
permit those examiners to conduct skills testing would be entirely at
the State's discretion.
FMCSA believes that the proposed change is appropriate because, as
SAGE noted, there are other means of detecting and preventing fraud in
CDL skills testing. Section 383.75, ``Third party testing,'' requires
States that utilize third party testers, (defined in Sec. 383.5 as a
person/entity authorized by the State to employ skills test examiners
to administer the CDL skills test) to undertake a number of actions
designed to ensure the integrity of the skills testing process. For
example, at least every two years, States must do one of the following:
Have State employees covertly take the skills tests administered by the
third party, as if the employee were a CDL applicant; have State
employees co-score the applicant during the skills test to compare
pass/fail results with the third party examiner; or re-test a sample of
drivers tested by a third party to compare pass/fail results (Sec.
383.75(a)(5)). Additionally, States must: Take prompt remedial action
against a third party tester that fails to comply with applicable CDL
testing standards (Sec. 383.75(a)(6)); maintain an agreement with the
third party tester that includes, among other things, provisions
allowing FMCSA or the State to conduct random inspections,
examinations, and audits of its operations (Sec. 383.75(a)(8)(i)); and
require the third party tester to use only examiners who complete
formal training approved by the State and are certified by the State to
conduct CDL skills testing (Sec. 383.75(a)(8)(vi)).
Additionally, under Sec. 384.229, States must establish and
maintain a database to track the skills tests administered by each
State and third party examiner; examiners must be identified by name
and identification number. State-established databases must also track
pass/fail rates of applicants tested by each State and third party
skills test examiner (to detect examiners who have unusually high pass
or failure rates), as well as dates and results of the States'
monitoring of third party testers and skills examiners. The databases
can be used by both FMCSA and SDLAs to identify and investigate
potentially fraudulent testing. The Agency invites comment from the
States addressing the extent to which they have detected fraud in third
party testing, including quantitative data derived from the required
monitoring of third party testers and skills examiners.
The Agency monitors each State's CDL program through Annual
Performance Reviews (APRs) and Skills Testing Reviews (STRs) conducted
in accordance with Sec. 384.307. If FMCSA determines that a State does
not meet one or more of the minimum standards for substantial
compliance under part 384, the State must take action to correct the
cited deficiencies, or explain why FMCSA's determination of non-
compliance is incorrect. As part of this review process, the Agency
evaluates the States' compliance with the CDL regulations in parts 383
and 384, and is therefore able to timely identify potential problem
areas in third party testing. During the five-year period beginning in
2014, FMCSA identified 16 States that were out of compliance with at
least one provision in 383.75.\6\ Each of these States has either
corrected the problem, or is in the process of implementing corrective
actions.
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\6\ This information is captured in FMCSA's States Compliance
Records Enterprise (SCORE) program database, the Agency's primary
tool for tracking States' compliance with parts 383 and 384.
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The Agency notes that, in addition to these current regulatory
requirements, another fraud-detection tool will be available when the
Entry Level Driver Training (ELDT) regulations are implemented.
Information collected through the Training Provider Registry (TPR)
established by the ELDT final rule will allow FMCSA to determine
whether applicants trained by specific providers have abnormally high
(or low) CDL skills test passage rates. In such cases, investigation of
the training provider may be warranted, which could reveal whether, if
the provider is also a third party tester in the State(s) in which
training is provided, the individual examiner who administered the
skills test also trained the CDL applicants. In accordance with Sec.
380.721(a)(5), CDL skills test passage rate anomolies may be a basis
for the training provider's removal from the TPR.
Given these multiple means of detecting and preventing fraud in CDL
skills testing, FMCSA believes that the proposed removal of the
prohibition currently imposed by Sec. 383.75(a)(7) would have no
impact on safety; \7\ the

[[Page 32693]]

Agency invites comments on this issue. In its comments to the October
2017 Regulatory Review document, SAGE contends that the current
prohibition contributes to CDL testing delays and, consequently, CMV
driver shortages. Although FMCSA understands the reasoning underlying
SAGE's conclusion that there is a link between the current prohibition
and skills testing delays, the Agency cannot independently confirm this
assertion. The Agency specifically requests comment, including
qualitative or quantitative data, addressing the impact of the current
prohibition on CDL skills testing delays and the availability of CDL-
credentialed drivers.
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\7\ FMCSA is aware of a recent occurrence in a midwestern State,
in which several CDL applicants passed the skills test administered
by the same individual who trained them (in violation of Sec.
383.75(a)(7)), but failed upon re-testing conducted pursuant to
Sec. 383.75. However, in that situation it is unclear whether the
failed re-testing resulted from examiner fraud or bias, or from the
fact that the individual may not have been properly qualified as a
third party examiner. In any event, FMCSA discovered discrepancies
in the course of an annual program review of the State's testing
program, which subsequently resulted in re-testing the affected
drivers. This process illustrates one of the existing means of
detecting fraud or bias in CDL skills testing. The Agency recently
reviewed the State Compliance Records Enterprise (SCORE) database,
containing records related to States' compliance with 49 CFR parts
383 and 384, and found no additional instances of non-compliance
with Sec. 383.75(a)(7).
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VII. Section-by-Section Analysis

Section 383.75(a)(7)

FMCSA would revise the current text of Sec. 383.75(a)(7) to
provide that the State may allow a skills test examiner who is also a
skills instructor, either as part of a school, training program or
otherwise, to administer a skills test to an applicant who received
skills training by that skills test examiner.

VIII. Regulatory Analyses

A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563 (Improving
Regulation and Regulatory Review), and DOT Regulatory Policies and
Procedures

Under section 3(f) of E.O. 12866 (58 FR 51735, Oct. 4, 1993),
Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR
3821, Jan. 21, 2011), Improving Regulation and Regulatory Review, this
proposed rule does not require an assessment of potential costs and
benefits under section 6(a)(4) of that Order. This proposed rule is
also not significant within the meaning of DOT regulatory policies and
procedures (DOT Order 2100.5 (May 22, 1980); 44 FR 11034 (Feb. 26,
1979)). Accordingly, the Office of Management and Budget has not
reviewed it under these Orders.
This proposed rule would permit States that use third party testers
to allow third party skills test examiners to administer the CDL skills
test for students they instructed. This practice is currently
prohibited by Sec. 383.75(a)(7).
As discussed above, FMCSA believes the proposed change may increase
the efficiency of CDL skills testing while maintaining an equivalent
level of safety. The NPRM would affect States, third party testers and
CDL applicants.
States
There are currently 33 SDLAs that administer the CDL skills test
and also allow third party testers to do so. An additional ten SDLAs
rely exclusively on third party testers. The remaining seven States and
the District of Columbia do not permit third party testing.\8\ Under
the proposed rule, the decision by an SDLA to permit third party
examiners to skills test CDL applicants they also trained would be
discretionary, and FMCSA is therefore unable to predict how many of the
43 SDLAs that allow or rely solely upon third party testing would adopt
that approach. Similarly, the Agency does not know if the proposed
change would result in additional training providers being approved by
SDLAs as third party testers. The Agency also has no basis on which to
predict whether any of the seven States and the District of Columbia
that currently do not permit third party testing would initiate third
party testing that permits skills examiners to test students they have
also trained. FMCSA invites comment on the extent to which SDLAs would
utitlize the flexibility afforded by this NPRM.
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\8\ A General Accounting Office (GAO) report published in 2015
found that 29 States use both State testers and third party testers
and that 10 States use third party testers only. Since publication
of the GAO report, Massachusetts, Montana, New York and Texas
adopted legislation permitting third party testing. The New Jersey
Motor Vehicles Commission is currently operating a pilot program for
third party testing pursuant to legislation enacted in 2016. The
remaining seven States and Washington, DC use State testers only.
See https://www.gao.gov/products/GAO-15-607 (Accessed June 19,
2018).
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Third Party Testers
In the regulatory impact analysis (RIA) for the ELDT final rule,
``Minimum Training Requirements for Entry-Level Commercial Motor
Vehicle Operators,'' \9\ FMCSA estimated that 5,150 organizations
(including CDL training schools, motor carriers, public transit
agencies, school districts, et al.) provide CDL skills training across
6,350 locations.\10\ At this time FMCSA is unable to estimate the
number of CDL skills training providers that are also third party
testers. However, as noted above, the Agency will have access to that
information after the ELDT TPR becomes operational, and thus will be
able to identify these entities for monitoring and enforcement
purposes.
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\9\ See, ``Regulatory Evaluation of Minimum Training
Requirements for Entry-Level Commercial Motor Vehicle Operators,
Final Rule,'' https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&dct=SR%2BO&D=FMCSA-2007-27748
\10\ Other training providers that might also be third party
testers include Public Transit Agencies (1,820), School Districts
(9,410), Private School Bus Carriers (3,790), Other Passenger
Carriers (30), and Other Carriers (300).
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CDL Skills Test Applicants
A CDL applicant must hold a CLP in order to take the CDL skills
test. FMCSA estimates that approximately 476,000 CLPs are issued
annually nationwide. This estimate is based primarily on information
from the Commercial Driver's License Information System (CDLIS), a
nationwide computer system, administered by AAMVA, that enables SDLAs
to ensure that each commercial driver has only one driver's license and
one complete driver record. According to AAMVA, approximately 476,000
new Master Pointer Records (MPRs) were added annually to CDLIS during
calendar years 2013 through 2015. An MPR is typically added to CDLIS
within 10 days of issuing a CLP to a driver who is believed to have
never held one previously, and is therefore a reasonable proxy for
estimating the number of CDL skills test applicants.
FMCSA notes that because the Agency cannot estimate the number of
States that would choose to permit third party examiners to train and
test the same individual, the extent to which this population would be
affected by the proposed rule is unknown.
Costs, Benefits and Transfer Payments
Costs
FMCSA did not identify any new costs to SDLAs, third party testers,
or CDL applicants (i.e., CLP holders) that would arise from the
proposed rule. FMCSA invites comment, including qualitative or
quantitative data, addressing whether the proposed rule may result in
new costs.
The proposed change could conceivably result in cost savings by
reducing wait times for CDL skills testing, thereby alleviating testing
delays, and improving how quickly a driver may be hired. The monetized
value of the reduced wait times would constitute cost savings to CDL
applicants and to motor carriers that seek to employ them by avoiding
opportunity costs. For example, CDL applicants could become wage-
earning drivers more quickly, and carriers would be able to engage the
new CDL holders in economically productive activities that much sooner.
Again, due to the fact that the Agency has no basis to estimate the
number of States which would allow skills testing currently

[[Page 32694]]

prohibited by Sec. 383.75(a)(7), FMCSA is unable to quantify the
amount of opportunity costs that would be avoided as result of the
proposed change.
Cost savings may also accrue in the form of reduced travel costs to
CDL applicants, who, as a result of the current prohibition, must
travel to an alternative testing site (e.g., another third party tester
or an SDLA) rather than take the skills test at the site where they
were trained. However, FMCSA has no basis to estimate how many CDL
applicants currently confront that circumstance, the amount of time
they spend travelling to an alternative testing site, or the extent to
which such travel time would be eliminated as a result of the proposed
change.The Agency requests comment addressing these factors, along with
any additional cost savings of the proposed rule.
Benefits
As is discussed above, FMCSA believes that the proposed removal of
the prohibition currently imposed by Sec. 383.75(a)(7) would have no
impact on safety, and would thus yield no positive or negative safety
benefits. The Agency also has not identified any other positive or
negative benefits to society that would result from this proposed rule.
Transfer Payments
There are also certain transfer payment effects that may occur if
this proposed rule is finalized. Transfer payments are monetary
payments from one group to another that do not affect total resources
available to society, and therefore do not represent actual costs or
benefits of the proposed rule.\11\ Under the prohibition imposed on
third party testers in 383.75(a)(7), CLP holders must presently arrange
to a take skills test administrated by either an SDLA or another third
party tester. These providers incur costs and receive fees to
administer skills tests to these CLP holders. If a State chooses to
allow third party examiners to administer the skills test to
individuals they also trained, those CLP holders would no longer have
to go elsewhere to take the skills test (unless the third party tester,
as a training provider, does not employ a sufficient number of trainers
who are also third party examiners). Provided that a third party skills
tester who is also a training provider has adequate supply to meet
demand for both training and testing, the cost of providing the skills
test and the associated revenue for the provision of that service would
be transferred to that skills tester (assuming the CLP holder chooses
to receive skills testing from that provider, an assumption the Agency
considers to be rational as it is expected to minimize costs to the CLP
holder). These transfer payments would only occur in those States that
choose to allow third party examiners to administer the skills test to
applicants they have also trained, as proposed in the NPRM. The Agency
is unable to predict how many of the 43 States that currently permit
third party testing would also permit individual examiners to train and
test the same CDL applicant, nor can the Agency predict whether
additional training providers would become third party testers if this
proposal is finalized. The Agency requests comments on the potential
significance of transfer payments among third party testers,as a result
of the proposed rule.
---------------------------------------------------------------------------

\11\ OMB Circular A-4 requires Agencies to discuss the
distributional effects of rulemakings. According to Circular A-4,
``distributional effects'' refer to ``. . . the impacts of a
regulatory action across the population and economy, divided up in
various ways (e.g., income groups, race, sex, industrial sector,
geography).'' This approach allows decision makers to properly
consider the distributional effects of a regulatory action on
economic efficiency. E.O. 12886 authorizes this approach. See
https://obamawhitehouse.archives.gov/omb/circulars_a004_a-4/
(Accessed June 26, 2018).
---------------------------------------------------------------------------

B. E.O. 13771 (Reducing Regulation and Controlling Regulatory Costs)

E.O. 13771 requires that for ``every one new [E.O. 13771 regulatory
action] issued, at least two prior regulations be identified for
elimination, and that the cost of planned regulations be prudently
managed and controlled through a budgeting process.'' 82 FR 9339 (Feb.
3, 2017). Implementation guida nce for E.O. 13771 issued by OMB
(Memorandum M-17-21) on April 5, 2017, defines two different types of
E.O. 13771 actions: an E.O. 13771 deregulatory action, and an E.O.
13771 regulatory action.
An E.O. 13771 deregulatory action is defined as ``an action that
has been finalized and has total costs less than zero.'' This proposed
rulemaking has total costs less than zero and therefore is an E.O.
13771 deregulatory action. Although, as previously noted, FMCSA cannot
quantify the estimated cost savings of the rule, the potential cost
savings are discussed qualitatively above.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601, et
seq.), as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (SBREFA) (Pub. L. 104-121, 110 Stat. 857), requires Federal
agencies to consider the impact of their regulatory proposals on small
entities, analyze effective alternatives that minimize small entity
impacts, and make their analyses available for public comment. The term
``small entities'' means small businesses and not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations under 50,000. Accordingly, DOT policy requires an analysis
of the impact of all regulations on small entities and mandates that
agencies strive to lessen any adverse effects on these entities. FMCSA
has not determined whether this proposed rule would have a significant
economic impact on a substantial number of small entities. Therefore,
FMCSA is publishing this initial regulatory flexibility analysis (IRFA)
to aid the public in commenting on the potential small business impacts
of the proposals in this NPRM. We invite all interested parties to
submit data and information regarding the potential economic impact
that would result from adoption of the proposals in this NPRM. We will
consider all comments received in the public comment process when
deciding in the Final Regulatory Flexibility Assessment.
An Initial Regulatory Flexibility Act (IRFA), which accompanies
this NPRM, must include six components. See 5 U.S.C. 603(b) and (c).
The Agency six components addressed in each section below require:
A description of the reasons why the action by the agency
is being considered;
A succinct statement of the objective of, and legal basis
for, the proposed rule;
A description of and, where feasible, an estimate of the
number of small entities to which the proposed rule will apply;
A description of the projected reporting, recordkeeping,
and other compliance requirements of the proposed rule, including an
estimate of the classes of small entities which will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record;
An identification, to the extent practicable, of all
relevant Federal rules that may duplicate, overlap, or conflict with
the proposed rule; and
A description of any significant alternatives to the
proposed rule which accomplish the stated objectives of applicable
statutes and which minimize any significant economic impact of the
proposed rule on small entities.

[[Page 32695]]

Why the Action by the Agency Is Being Considered
FMCSA regulations define third party tester and third party skills
test examiner (49 CFR 383.5). A third party tester is as a person
(including but not limited to, another State, motor carrier private
training facility or other private institution, or a department, agency
or instrumentality of a local government) authorized by the State to
employ skills test examiners to administer the CDL skills test. A
``third party skills test examiner'' is defined as a person employed by
a third party tester who is authorized by the State to administer the
CDL skills test. Section 383.75(a)(7) prohibits a third party skills
test examiner who is also a skills instructor from administering the
CDL skills test to an applicant who received skills training from that
examiner skills test examiner. The Agency's proposal to remove the
skills testing restriction on third party examiners responds to public
comment received in response to the DOT's Notification of Regulatory
Review (82 FR 45750 (Oct. 2, 2017)).
The Objectives of and Legal Basis for the Proposed Rule
The objective of the NPRM is to provide States with the option to
permit a third party skills test examiners to administer the Commercial
Driver's License (CDL) skills test to applicants to whom the examiner
has also provided skills training. The Agency believes that permitting
this practice could reduce wait times for CDL skills testing and reduce
the inconvience and cost for CDL applicants and third party testers.
Recent surveys conducted by the Commercial Vehicle Training Association
and FMCSA, based on 2016 data show that wait times for initial CDL
skills testing and retesting vary by State. Providing the States the
discretion to lift the prohibition on third party skills testers from
administering the skills tests to applicants they instruct may reduce
testing delays and improve how quickly motor carriers can hire new CDL
holders. FMCSA believes the proposed change would not undermine the
integrity or effectiveness of CDL skills training.
The NPRM is based primarily on the broad authority of the
Commercial Motor Vehicle Safety Act of 1986, as amended (the 1986 Act)
(Pub. L. 99-570, Title XII, 100 Stat. 3207-170, codified at 49 U.S.C.
chapter 313), which established the CDL program. The 1986 Act required
the Secretary, after consultation with the States, to prescribe uniform
minimum standards for the issuance of CDLs, including minimum standards
for written and driving tests of an individual operating a commercial
motor vehicle'' (49 U.S.C. 31305(a)(1)). The proposed rule would amend
one of the current CDL testing requirements imposed on the States.
The NPRM is also consistent with the concurrent authorities of the
Motor Carrier Safety Act of 1984, as amended (the 1984 Act) (Pub. L.
98-554, Title II, 98 Stat. 2832, codified at 49 U.S.C. 31136); and the
Motor Carrier Act of 1935, as amended (the 1935 Act) (Chapter 498,
codified at 49 U.S.C. 31502). A full explanation of the legal basis for
this rulemaking is set forth in Section IV.
A Description of and, Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Rule Will Apply
``Small entity'' is defined in 5 U.S.C. 601. Section 601(3) defines
a ``small entity'' as having the same meaning as ``small business
concern'' under section 3 of the Small Business Act. This includes any
small business concern that is independently owned and operated, and is
not dominant in its field of operation. Section 601(4), likewise
includes within the definition of ``small entities'' not-for-profit
enterprises that are independently owned and operated, and are not
dominant in their fields of operation. Additionally, section 601(5)
defines ``small entities'' as governments of cities, counties, towns,
townships, villages, school districts, or special districts with
populations less than 50,000.
The proposed rule could affect training providers, some of which
are already authorized third party testers in 43 States. In the
regulatory impact analysis (RIA) for the ELDT final rule, ``Minimum
Training Requirements for Entry-Level Commercial Motor Vehicle
Operators,'' FMCSA estimated that 5,150 organizations (including
community colleges, proprietary CDL training schools, freight and
property motor carriers and motocoach carriers) provide CDL skills
training across 6,350 locations \12\. The RIA also estimated that there
may be an additional 15,350 training providers, which theoretically
could become third party testers. These entities include public school
districts, private school bus carriers, public transit agencies and
other passenger carriers.
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\12\ Of the 5,150 CDL training schools, 700 consist of
proprietary training providers and community colleges. The remaining
1,500 represent an estimate of small entities training few students,
most likely representing individuals who training a few students a
year (e.g., CDL holders training family members or friends).
---------------------------------------------------------------------------

The Agency lacks annual revenue data to determine how many of the
training entities identified in the ELDT RIA are within the SBA size
standards to qualify as small entities. Large motor carriers that have
training programs for potential new hires and students that may seek
employment elsewhere are not likely small entities. Many of the
private, for profit CDL training providers are multi-disciplinary post-
secondary institutions with branch campuses in multiple States. These
training providers may exceed the SBA size standard based the combined
revenue from CDL training programs and other programs. Some of the
training providers identified in the ELDT RIA are not small entities
because they are instrumentalities of the States or local government
with population greater than 50,000. For example, community colleges
that are chartered by State agencies such as State Boards of Higher
Education. As instrumentalities of the States their population would
exceed 50,000.
In 33 States, SDLAs augment their own administration of skills
tests with third party testers. In another 10 States, SDLAs rely
exclusively on third party testers to perform skills tests. Ten States
and the District of Columbia do not permit third party testing. Of the
43 States that either allow third party testing or rely exclusively on
third party testing, the Agency is unable to predict how many States
would permit instructors employed by third party testers to be the
skills test examiners for students they have instructed. The Agency
specifically requests comment from SDLAs in these States whether they
would permit instructors to also serve as skills test examiners for
their students as a result of the proposed rule, and if so, how many
third party testers within their State would be impacted by the
proposed rule and what the magnitude of that impact would be. FMCSA
also requests comments from SDLAs if this change would result in their
approval of additional third party testers, beyond those currently
approved, or what other factors or limitations SDLAs consider in
determining how many third party testers are approved.
The Agency is unable to predict whether any of the 10 States that
do not permit third party testing would choose to permit third party
testing as a result of the proposed rule. As nothing currently
prohibits these States from allowing third party testers, the Agency
does not believe that position would be changed solely on the basis of
this

[[Page 32696]]

proposal. The Agency requests comment from these 10 SDLAs concerning
whether they would likely adopt third party testing and if they also
would permit instructors to serve as skills test examiners for their
students.
A description of the projected reporting, recordkeeping, and other
compliance requirements of the proposed rule, including an estimate of
the classes of small entities which will be subject to the requirement
and the type of professional skills necessary for preparation of the
report or record.
The proposed rule does not create or modify existing third party
tester recordkeeping requirements.
An identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap, or conflict with the
proposed rule.
FMCSA is not aware of any relevant Federal rules that may
duplicate, overlap, or conflict with the proposed rule.
A description of any significant alternatives to the proposed rule
which accomplish the stated objectives of applicable statutes and which
minimize any significant economic impact of the proposed rule on small
entities.
The proposed rule eliminates a mandatory prohibition required by a
specific regulation. Because of this singular focus, there is no
significant alternative to considered.

D. Assistance for Small Entities

In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities
in understanding this proposed rule so that they can better evaluate
its effects and participate in the rulemaking initiative. If the
proposed rule would affect your small business, organization, or
governmental jurisdiction, and you have questions concerning its
provisions or options for compliance, please consult the FMCSA point of
contact listed in the FOR FURTHER INFORMATION CONTACT section of this
proposed rule.
Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the Small Business Administration's Small Business and
Agriculture Regulatory Enforcement Ombudsman and the Regional Small
Business Regulatory Fairness Boards. The Ombudsman evaluates these
actions annually and rates each agency's responsiveness to small
businesses. If you wish to comment on actions by employees of FMCSA,
call 1-888-REG-FAIR (1-888-734-3247). The DOT has a policy regarding
the rights of small entities to regulatory enforcement fairness and an
explicit policy against retaliation for exercising these rights.\13\
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\13\ U.S. Department of Transportation (DOT). ``The Rights of
Small Entities to Enforcement Fairness and Policy Against
Retaliation.'' Available at: https://www.transportation.gov/sites/dot.gov/files/docs/SBREFAnotice2.pdf (accessed December 1, 2017).
---------------------------------------------------------------------------

E. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act requires agencies to prepare
a comprehensive written statement for any proposed or final rule that
may result in the expenditure by State, local, and tribal governments,
in the aggregate, or by the private sector, of $161 million (which is
the value equivalent of $100,000,000 in 1995, adjusted for inflation to
2017 levels) or more in any one year. Because this proposed rule would
not result in such an expenditure, a written statement is not required.
However, FMCSA does discuss the costs and benefits of this proposed
rule elsewhere in this preamble.

F. Paperwork Reduction Act

This proposed rule would call for no new collection of information
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

G. E.O. 13132 (Federalism)

A rule has implications for federalism under Section 1(a) of E.O.
13132 if it has ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' FMCSA determined that this proposal would not have
substantial direct costs on or for States, nor would it limit the
policymaking discretion of States. Nothing in this document preempts
any State law or regulation. Therefore, this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism Impact Statement.

H. E.O. 12988 (Civil Justice Reform)

This proposed rule meets applicable standards in sections 3(a) and
3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.

I. E.O. 13045 (Protection of Children)

Executive Order 13045, Protection of Children from Environmental
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), requires
agencies issuing ``economically significant'' rules, if the regulation
also concerns an environmental health or safety risk that an agency has
reason to believe may disproportionately affect children, to include an
evaluation of the regulation's environmental health and safety effects
on children. FMCSA determined this proposed rule is not economically
significant. Therefore, no analysis of the impacts on children is
required. In any event, FMCSA does not anticipate that this regulatory
action could in any respect present an environmental or safety risk
that could disproportionately affect children.

J. E.O. 12630 (Taking of Private Property)

FMCSA reviewed this proposed rule in accordance with E.O. 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, and has determined it would not effect a taking of
private property or otherwise have taking implications.

K. Privacy

The Consolidated Appropriations Act, 2005, (5 U.S.C. 552a note)
requires the Agency to conduct a privacy impact assessment (PIA) of a
regulation that will affect the privacy of individuals. Because this
final rule does not require the collection of personally identifiable
information (PII), the Agency is not required to conduct a PIA.
Section 208 of the E-Government Act of 2002 (44 U.S.C. 3501 note)
requires Federal agencies to conduct a PIA for new or substantially
changed technology that collects, maintains, or disseminates
information in an identifiable form. No new or substantially changed
technology would collect, maintain, or disseminate information as a
result of this rule. Accordingly, FMCSA has not conducted a PIA.

L. E.O. 12372 (Intergovernmental Review)

The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
program.

M. E.O. 13211 (Energy Supply, Distribution, or Use)

FMCSA has analyzed this proposed rule under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. FMCSA has determined that it is not a
``significant energy action'' under that order because it is not a
``significant regulatory action'' likely to have a significant adverse
effect

[[Page 32697]]

on the supply, distribution, or use of energy. Therefore, it does not
require a Statement of Energy Effects under E.O. 13211.

N. E.O. 13175 (Indian Tribal Governments)

This rule does not have tribal implications under E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, because
it does not have a substantial direct effect on one or more Indian
Tribes, on the relationship between the Federal government and Indian
Tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian Tribes.

O. National Technology Transfer and Advancement Act (Technical
Standards)

The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through OMB, with an explanation of why using these standards would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards (e.g., specifications of materials, performance,
design, or operation; test methods; sampling procedures; and related
management systems practices) are standards developed or adopted by
voluntary consensus standards bodies. This rule does not use technical
standards. Therefore, FMCSA did not consider the use of voluntary
consensus standards.

P. Environment (NEPA)

FMCSA analyzed this NPRM consistent with the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.) and determined this action
is categorically excluded from further analysis and documentation in an
environmental assessment or environmental impact statement under FMCSA
Order 5610.1 (69 FR 9680 (Mar. 1, 2004)), appendix 2, paragraph (6)(z).
The Categorical Exclusion (CE) in paragraph (6)(z) covers (1) the
minimum qualifications for persons who drive commercial motor vehicles
as, for, or on behalf of motor carriers; and (2) the minimum duties of
motor carriers with respect to the qualifications of their drivers. The
proposed requirements in this rule are covered by this CE, there are no
extraordinary circumstances present, and the proposed action does not
have the potential to significantly affect the quality of the
environment. The CE determination is available for inspection or
copying in the regulations.gov website listed under ADDRESSES.

List of Subjects in 49 CFR Part 383

Administrative practice and procedure, Highway safety, Motor
carriers, Reporting and recordkeeping requirements.

In consideration of the foregoing, FMCSA proposes to amend 49 CFR
part 383 to read as follows:

PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND
PENALTIES

0
1. The authority citation for part 383 is revised to read as follows:

Authority: 49 U.S.C. 521, 31136, 31301 et seq., and 31502; secs.
214 and 215 of Pub. L. 106-159, 113 Stat. 1766, 1767; sec. 1012(b)
of Pub. L. 107- 56; 115 Stat. 397; sec. 4140 of Pub. L. 109-59, 119
Stat. 1144, 1726; and 49 CFR 1.73.

0
2. Revise Sec. 383.75(a)(7) to read as follows:

Sec. 383.75 Third party testing.

(a) * * *
(7) The State may allow a skills test examiner who is also a skills
instructor either as a part of a school, training program or otherwise,
to administer a skills test to an applicant who received skills
training by that skills test examiner; and
* * * * *

Issued under authority delegated in 49 CFR 1.87 on: June 26,
2019.
Raymond P. Martinez,
Administrator.
[FR Doc. 2019-14225 Filed 7-8-19; 8:45 am]
BILLING CODE 4910-EX-P