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Amendments to the Commercial Driver's License Requirements; Increased Flexibility for Testing and for Drivers After Passing the Skills Test Publication: Federal Register Agency: Federal Motor Carrier Safety Administration Byline: Robin Hutcheson Date: 2 February 2024 Subjects: American Government  , Driver Licensing
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[Federal Register Volume 89, Number 23 (Friday, February 2, 2024)]
[Proposed Rules]
[Pages 7327-7345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01710]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 383 and 384
[Docket No. FMCSA-2023-0115]
RIN 2126-AC46
Amendments to the Commercial Driver's License Requirements;
Increased Flexibility for Testing and for Drivers After Passing the
Skills Test
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: FMCSA proposes to increase flexibility for State Driver
Licensing Agencies (SDLAs) and commercial driver's license (CDL)
applicants by expanding applicants' ability to take a CDL skills test
in a State other than their State of domicile; permitting a commercial
learner's permit (CLP) holder who has passed the CDL skills test to
operate a commercial motor vehicle (CMV) on public roads without having
a qualified CDL holder in the passenger seat; eliminating the
requirement that an applicant wait at least 14 days to take the CDL
skills test following initial issuance of the CLP. The NPRM also
proposes to remove the requirement that CMV drivers must have a
passenger (P) endorsement to transport CMVs designed to carry
passengers, including school buses, when the vehicle is being
transported in a driveaway-towaway operation and the vehicle is not
carrying any passengers. Additionally, FMCSA proposes to require that
third-party knowledge examiners be subject to the training,
certification, and record check standards currently applicable to State
knowledge examiners and third-party knowledge testers be subject to the
auditing and monitoring requirements now applicable to third-party
skills testers. The NPRM responds to petitions for rulemaking from the
American Trucking Associations (ATA) and the New Hampshire Department
of Transportation (NHDOT), as discussed below. FMCSA believes these
proposals would improve the efficiency and convenience of CDL issuance
and improve highway safety by further ensuring the integrity of third-
party CDL knowledge testing.
DATES: Comments must be received on or before April 2, 2024.
ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2023-0115 using any of the following methods:
Federal eRulemaking Portal: Go to https://www.regulations.gov/docket/FMCSA-2023-0115/document. Follow the online
instructions for submitting comments.
Mail: Dockets Operations, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Washington, DC 20590-0001.
Hand Delivery or Courier: Dockets Operations, U.S.
Department of Transportation, 1200 New Jersey Avenue SE, West Building,
Ground Floor, Washington, DC 20590-0001, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays. To be sure someone is
there to help you, please call (202) 366-9317 or (202) 366-9826 before
visiting Dockets Operations.
Fax: (202) 493-2251.
FOR FURTHER INFORMATION CONTACT: Patrick D. Nemons, Director, Office of
Safety Programs, FMCSA, 1200 New Jersey Avenue SE, Washington, DC
20590-0001; (202) 385-2400; patrick.nemons@dot.gov. If you have
questions on viewing or submitting material to the docket, call Dockets
Operations at (202) 366-9826.
SUPPLEMENTARY INFORMATION: FMCSA organizes this NPRM as follows:
I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
D. Comments on the Information Collection
II. Executive Summary
A. Purpose and Summary of the Regulatory Action
B. Summary of Major Provisions
C. Costs and Benefits
III. Abbreviations
IV. Legal Basis
V. Background
VI. Discussion of Proposed Rulemaking
VII. Section-by-Section Analysis
VIII. Severability
IX. Regulatory Analyses
A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563
(Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures
B. Congressional Review Act
C. Waiver of Advance Notice of Proposed Rulemaking
D. Regulatory Flexibility Act (Small Entities)
E. Assistance for Small Entities
F. Unfunded Mandates Reform Act of 1995
G. Paperwork Reduction Act (Collection of Information)
H. E.O. 13132 (Federalism)
I. Privacy
J. E.O. 13175 (Indian Tribal Governments)
K. National Environmental Policy Act of 1969
I. Public Participation and Request for Comments
A. Submitting Comments
If you submit a comment, please include the docket number for this
NPRM (FMCSA-2023-0115), indicate the specific section of this document
to which your comment 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 FMCSA
can contact you if there are questions regarding your submission.
To submit your comment online, go to https://www.regulations.gov/docket/FMCSA-2023-0115/document, click on this NPRM, click ``Comment,''
and type your comment into the text box on the following screen.
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.
Confidential Business Information (CBI)
CBI is commercial or financial information that is both customarily
and actually treated as private by its owner. Under the Freedom of
Information Act
[[Page 7328]]
(5 United States Code (U.S.C.) 552), CBI is exempt from public
disclosure. If your comments responsive to the NPRM contain commercial
or financial information that is customarily treated as private, that
you actually treat as private, and that is relevant or responsive to
the NPRM, it is important that you clearly designate the submitted
comments as CBI. Please mark each page of your submission that
constitutes CBI as ``PROPIN'' to indicate it contains proprietary
information. FMCSA will treat such marked submissions as confidential
under the Freedom of Information Act, and they will not be placed in
the public docket of the NPRM. Submissions containing CBI should be
sent to Brian Dahlin, Chief, Regulatory Analysis Division, Office of
Policy, FMCSA, 1200 New Jersey Avenue SE, Washington DC 20590-0001. Any
comments FMCSA receives not specifically designated as CBI will be
placed in the public docket for this rulemaking.
B. Viewing Comments and Documents
To view any documents mentioned as being available in the docket,
go to https://www.regulations.gov/docket/FMCSA-2023-0115/document and
choose the document to review. To view comments, click this NPRM, then
click ``Browse Comments.'' If you do not have access to the internet,
you may view the docket online by visiting Dockets Operations on the
ground floor of the DOT West Building, 1200 New Jersey Avenue SE,
Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays. To be sure someone is there to help
you, please call (202) 366-9317 or (202) 366-9826 before visiting
Dockets Operations.
C. Privacy Act
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its regulatory process. DOT posts these
comments, including any personal information the commenter provides, to
www.regulations.gov as described in the system of records notice DOT/
ALL 14 (Federal Docket Management System (FDMS)), which can be reviewed
at https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices. The comments are posted without edit, and are
searchable by the name of the submitter.
D. Comments on the Information Collection
Written comments and recommendations for the information collection
discussed in this NPRM should be sent within 60 days of publication to
www.reginfo.gov/public/do/PRAMain. Find this information collection by
clicking the link that reads ``Currently under Review--Open for Public
Comments'' or by entering Office of Management and Budget (OMB) control
number 2126-0011 in the search bar and clicking on the last entry to
reach the ``comment'' button.
II. Executive Summary
A. Purpose and Summary of the Regulatory Action
The purpose of the NPRM is to enhance the flexibility and
efficiency of the CDL program by removing certain regulatory
restrictions to allow applicants to obtain a CDL and be productively
employed as a CMV driver in less time than it currently takes, without
compromising safety. The NPRM also proposes measures to ensure the
consistency and integrity of the administration of CDL knowledge tests
provided by third-party examiners and facilitate the safe transport of
empty CMVs designed to transport passengers (passenger CMVs) more
efficiently. FMCSA believes the proposed changes will further address
CMV driver shortages, enhance supply chain stability, and provide
appropriate regulatory relief without impacting safety. In the case of
CDL knowledge testing administered by third parties, the proposal would
improve safety by imposing applicable training and certification
standards for third-party knowledge examiners currently required for
State-employed knowledge test examiners, and by imposing monitoring
standards for third-party knowledge testers currently applicable to
third-party skills testers. The proposed changes are summarized
immediately below and further explained in Section VI., Discussion of
the Proposal.
B. Summary of Major Provisions
CDL Skills Testing for Out-of-State Applicants
Section 383.79(a)(1) currently permits a State to administer the
CDL skills test to an applicant domiciled in another State, provided
the individual has obtained training in the State where the skills test
will be administered. Such test results must be transmitted
electronically directly from the testing State to the licensing State
in a direct, efficient, and secure manner. The NPRM proposes to remove
the requirement that an applicant must have obtained training in the
testing State in order to take the CDL skills test in that State.
With the implementation of FMCSA's entry-level driver training
(ELDT) regulations in February 2022, all States can be assured that the
out-of-state applicant has completed the required minimum training as
set forth in 49 CFR part 380, subpart F. The NPRM, by proposing to
allow States discretion to provide skills testing to out-of-State
applicants, regardless of the State in which training was obtained, may
allow applicants to obtain a CDL sooner by scheduling the skills test
in a State with shorter waiting times. Because all States administering
the CDL skills test must follow the test standards and requirements set
forth in 49 CFR part 383, subparts G and H, the proposal would not
adversely impact safety.
CLP Holders Who Have Passed the CDL Skills Test
Pursuant to Sec. 383.25(a)(1), CLP holders may operate a CMV on
public roads and highways only for purposes of BTW training, as long as
a CDL holder is physically present in the front seat of the vehicle or,
in the case of a passenger CMV, directly behind or in the first row
behind the driver and has the CLP holder under observation and direct
supervision. The NPRM proposes an exception to this provision that
would allow CLP holders who have passed the CDL skills test to operate
a CMV for any reason, provided a CDL holder is physically present in
the CMV, the CLP driver has passed the CDL skills test, and the driver
possesses documentary evidence from the testing State that they have
passed the CDL skills test.
Since the current provision was adopted in 2012, FMCSA implemented
minimum ELDT requirements, set forth in 49 CFR part 380 subpart F. Once
the CLP holder has passed the skills test and, thus, demonstrated their
ability to safely operate a CMV, the current restriction limiting CLP
holders to CMV operation only for purpose of BTW training would no
longer be necessary. Because these drivers have already met all the
requirements for a CDL, but have yet to pick up the CDL document from
their State of domicile, their safety performance would be the same as
a newly-credentialed CDL holder. Additionally, having a CDL driver
accompany the CLP driver who has successfully passed all required CDL
skills testing and prerequisites, provides some additional supervision
that is otherwise not required for newly-credentialed CDL drivers in
physical possession of the CDL document.
CLP Holders Eligible To Take the CDL Skills Test
As set forth in Sec. 383.25(e), CLP holders are not eligible to
take the CDL skills test in the first 14 days following
[[Page 7329]]
initial issuance of the CLP. FMCSA proposes to eliminate this
restriction, which was intended to ensure CLP holders obtained BTW
training prior to taking the skills test to improve their chances of
passing the test on the first attempt. The restriction is no longer
necessary, however, because CLP holders must now complete ELDT (theory
training and BTW range and road training) before taking the skills test
for a Class A or Class B CDL or the P or school bus (S) endorsement, in
accordance with Sec. 383.73(b)(11) and (e)(9).
Third-Party Knowledge Testers and Examiners
In accordance with regulatory guidance adopted on February 3, 2022,
States may authorize the use of third-party knowledge examiners as long
as they adhere to the CDL knowledge test standards and requirements set
forth in 49 CFR part 383, subparts G and H.\1\ When issuing that
guidance, FMCSA noted its intention to propose regulatory requirements
further clarifying the States' use of third-party knowledge examiners.
This NPRM proposes those requirements, which are intended to ensure the
integrity of third-party CDL knowledge testing.
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\1\ See, 87 FR 6045 (Feb. 3, 2022).
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First, States authorizing third-party knowledge examiners would be
required to apply to those examiners the training, certification, and
record check requirements currently applicable to State knowledge
examiners, as set forth in Sec. 384.228. Third-party skills examiners
already certified under Sec. 384.228 who also administer the knowledge
tests would be excepted from duplicative training and record check
requirements. In addition, States would be required to include third-
party knowledge examiners within the scope of the auditing and
monitoring provisions set forth in Sec. 384.229, currently applicable
only to third-party skills examiners. States authorizing third-party
knowledge testers (i.e., entities that employ third-party knowledge
examiners) and examiners would be subject to the auditing and
monitoring requirements for third-party skills testers and examiners,
set forth in Sec. 383.75, as applicable. Finally, the NPRM proposes to
add a requirement that third-party knowledge testers or examiners
administer the knowledge test only by electronic means.
Operation of Empty Passenger CMVs
The NPRM proposes to except CDL holders operating CMVs designed to
carry passengers, including school buses, from having a P endorsement
when the CMV is empty of passengers and the driver is transporting the
CMV from the manufacturer to the distributor or in a driveaway-towaway
operation, as defined in Sec. 390.5T. As explained further below,
FMCSA's current regulations do not require an S endorsement to operate
an empty school bus. Both the S and P endorsements are intended to
ensure the driver has the knowledge and skills necessary to safely
transport passengers and to evacuate the CMV in case of emergency. The
proposed change would therefore enhance flexibility in transporting
empty passenger CMVs to distributors, dealers, purchasers, and repair
facilities without compromising passenger safety.
C. Costs and Benefits
FMCSA believes these proposals would improve the efficiency and
convenience of CDL issuance, provide needed flexibility for CLP holders
who have demonstrated their ability to safely operate a CMV by passing
the CDL skills test, improve highway safety by ensuring the integrity
of third-party CDL knowledge testing, and enhance flexibility in the
transport of empty passenger CMVs from the manufacturer to the
distributor or in a driveaway-towaway operation. The proposed rule
could affect States, third-party knowledge examiners, CDL applicants,
CMV drivers, and motor carriers.
FMCSA anticipates that entities acting under the proposed
flexibilities would incur cost savings via improved operational
efficiency. FMCSA cannot predict the number of States that would
voluntarily adopt the changes set forth in this proposal, and is
therefore unable to quantify the increase in efficiency experienced by
the affected entities. FMCSA estimates that the 10-year cost for
training and certification of third-party knowledge examiners could
total approximately $92 million on an undiscounted basis, $81 million
discounted at 3 percent, and $69 million discounted at 7 percent.
Annualized costs would total $9.24 million discounted at 3 percent and
$9.24 million discounted at 7 percent (all in 2021 dollars).
III. Abbreviations
ANPRM Advance Notice of Proposed Rulemaking
ATA American Trucking Associations
BTW Behind-The-Wheel
CBI Confidential Business Information
CDL Commercial Driver's License
CDLIS Commercial Driver's License Information System
CE Categorical Exclusion
CFR Code of Federal Regulations
CLP Commercial Learner Permit
CMV Commercial Motor Vehicle
CMVSA Commercial Motor Vehicle Safety Act of 1986
CRST CRST Expedited
C.R. England C.R. England, Inc.
DOT Department of Transportation
ELDT Entry-Level Driver Training
E.O. Executive Order
FMCSA Federal Motor Carrier Safety Administration
FMCSR Federal Motor Carrier Safety Regulations
FR Federal Register
NAICS North American Industry Classification System
NEPA National Environmental Policy Act of 1969
NHDOT State of New Hampshire Department of Transportation
NPRM Notice of Proposed Rulemaking
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
PIA Privacy Impact Assessment
PII Personally Identifiable Information
Prime New Prime, Inc.
PTA Privacy Threshold Assessment
RFA Regulatory Flexibility Act
The Secretary Secretary of Transportation
SDLA State Driver Licensing Agency
UMRA Unfunded Mandates Reform Act of 1995
U.S.C. United States Code
IV. Legal Basis for the Rulemaking
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 CMV operators,
programs, and safety. The NPRM is based primarily on the broad
authority of the Commercial Motor Vehicle Safety Act of 1986 (CMVSA),
as amended, codified at 49 U.S.C. chapter 313, which established the
CDL program. The statute required the Secretary of Transportation
(Secretary), after consultation with the States, to prescribe uniform
minimum standards ``for testing and ensuring the fitness of an
individual operating a commercial motor vehicle'' (49 U.S.C.
31305(a)(1)). The NPRM proposes to amend two of the CDL testing
requirements and proposes new requirements for the administration of
the CDL knowledge test by third-party testers and examiner. The NPRM
also addresses the fitness of a CLP holder who has passed the CDL
skills test to operate a CMV on public roads and the fitness of Class B
CDL holders to operate an empty passenger CMV without obtaining the P
endorsement.
The NPRM is also consistent with the concurrent authorities of the
Motor Carrier Safety Act of 1984, as amended, codified at 49 U.S.C.
31131, et seq.; and the Motor Carrier Act of 1935, as amended, codified
at 49 U.S.C. 31502. The 1984 statute granted the Secretary
[[Page 7330]]
broad authority to issue regulations ``on commercial motor vehicle
safety,'' including regulations to ensure that ``commercial motor
vehicles are . . . operated safely'' (49 U.S.C. 31136(a)(1)). The NPRM
is consistent with the safe operation of CMVs. In accordance with
section 31136(a)(2), the enhanced flexibilities proposed in the NPRM
will not impose any ``responsibilities . . . on operators of commercial
motor vehicles [that would] impair their ability to operate the
vehicles safely.'' This NPRM 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 will be coerced (section 31136(a)(5)) if the
NPRM results in the issuance of a final rule.
Title 49 U.S.C., section 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.'' The
NPRM, which addresses certain knowledge and skills testing
requirements, is related to the safe operation of motor carrier
equipment.
V. Background
On May 9, 2011, FMCSA published the CDL Testing and CLP Standards
final rule (76 FR 26854) (May 2011 final rule) amending the CDL
knowledge and skills testing standards and establishing new minimum
Federal standards for States to issue the CLP. Each of the regulatory
provisions that FMCSA proposes to revise in the NPRM, discussed below,
were either adopted initially (Sec. Sec. 383.25, 383.79, 384.228, and
384.229) or revised (Sec. Sec. 383.5 and 383.75) in the May 2011 final
rule.
On July 13, 2020, the ATA submitted a petition for rulemaking to
FMCSA requesting that the Agency codify three CDL-related waivers
issued (and subsequently reissued) in response to the coronavirus
disease 2019 (COVID-19) pandemic:
(1) Allow third-party CDL skills test examiners the ability to
administer the CDL knowledge test, so long as the examiner maintains
their CDL skills test examiner certification, has successfully
completed a CDL skills test examiner training course, and completes a
unit devoted to administering the knowledge test as required in Sec.
384.228(c)(3); \2\
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\2\ As discussed below in Section V.A., FMCSA withdrew the
third-party knowledge examiner testing waiver on February 3, 2022.
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(2) Eliminate from the requirement in Sec. 383.25(a)(1) that a CLP
holder who has passed the CDL driving skills test be accompanied by a
CDL holder with the proper CDL class and endorsements, seated in the
front seat of a CMV, while the CLP holder operates a CMV on public
roads or highways, provided that the CLP holder possesses evidence from
a testing jurisdiction (including an authorized third-party tester)
that a CLP holder has passed the CDL driving skills test, and provided
that the CDL holder is elsewhere in the cab; and
(3) Eliminate the restriction under Sec. 383.79(a) limiting States
to the administration of driving skills tests to CDL applicants not
domiciled in the testing State only if the applicant took driver
training in that State. Each of the waivers was based on the need for
regulatory flexibility in response to COVID-19-related service
disruptions at the SDLAs and to enhance the efficiency of the
commercial licensing process so that applicants could obtain a CDL more
quickly. FMCSA issued the waivers after finding that granting the
regulatory relief would achieve a level of safety equal to, or greater
than, the level of safety achieved in the absence of the waivers, as
required by 49 U.S.C. 31315(a). The waivers, discussed further below,
are available in the docket of this rulemaking and can also be accessed
at https://www.fmcsa.dot.gov/emergency/covid-19-archives.
The ATA asserted that permanent incorporation of these temporary
relief measures into the Federal Motor Carrier Safety Regulations
(FMCSRs) would reduce regulatory burdens, aid the ongoing COVID-19
recovery efforts, and ``ensure continuity in the American supply
chain.'' The Agency granted ATA's petition on November 24, 2021. The
NPRM is based, in part, on ATA's petition for rulemaking, as discussed
further below.
A. Third Party Testing (Sec. 383.75)
On April 9, 2020, FMCSA waived the CDL knowledge test examiner
training requirements in Sec. 384.228(b) and (c) for certain third-
party CDL skills test examiners. The waiver allowed State-authorized
third-party skills test examiners who have maintained a valid CDL test
examiner certification and have previously completed a CDL skills test
examiner training course satisfying the requirements of Sec.
384.228(d) to administer the CDL knowledge test without completing a
CDL knowledge test training course. (At the time of issuance, FMCSA's
existing regulatory guidance stated that third-party knowledge testing
was prohibited and that if an employee of the State authorized to
supervise knowledge testing is present during the testing, FMCSA
regards the test as being administered by the State and not by a third
party.) The waiver allowed States and SDLAs to use third-party CDL
skills test examiners to continue administering CDL knowledge tests
while SDLAs remained closed, unable to administer CDL knowledge tests,
or operating at a diminished capacity due to the COVID-19 emergency.
The Agency reissued the waiver June 22, 2020, September 18, 2020,
December 15, 2020, February 16, 2021, May 26, 2021, August 31, 2021,
and November 29, 2021. As discussed below, FMCSA rescinded the waiver
on February 3, 2022.
On February 3, 2022, FMCSA published a notice of regulatory
guidance concerning the States' use of third parties to administer CDL
knowledge tests (87 FR 6045 (Feb. 3, 2022)) (February 2022 guidance).
The guidance rescinded previously issued guidance, discussed above,
stating that States' use of third-party knowledge test examiners was
prohibited if a State employee was not present. The February 2022
guidance affirmed that FMCSA's statutes and regulations do not prohibit
States from authorizing third parties to administer CDL knowledge
tests, as long as SDLAs adhere to the CDL knowledge test standards and
testing requirements set forth in 49 CFR part 383, subparts G and H.
Currently, FMCSA does not impose any other regulatory requirements
pertaining to the States' optional use of third-party knowledge
testing. In the February 2022 notice, FMCSA explained it was developing
an NPRM to propose regulatory standards for third-party knowledge
testing and, in the interim, encouraged States opting to use third-
party knowledge examiners to follow the training, certification, and
record check requirements currently applicable to State knowledge
examiners. This NPRM proposes those regulatory standards. The Agency
subsequently issued additional guidance recommending best practices for
States that allow third-party knowledge testing, discussed further
below in section VI. On February 3, 2022, FMCSA also terminated the
November 29, 2021, waiver then in effect allowing States, at their
discretion, to permit certified third-party skills examiners to
administer the
[[Page 7331]]
CDL knowledge test, subject to certain conditions.\3\ The Agency
withdrew the waiver because it was based on the prior (rescinded)
guidance stating that third-party knowledge testing was prohibited
under FMCSA's regulations.
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\3\ See ``Notice of Termination of Waiver for States Concerning
Third Party CDL Skills Test Examiners in Response to the COVID-19
Emergency,'' accessible here: https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2022-02/Third%20Party%20Skills%20Tester%20Waiver%20-%20Notice%20of%20Termination%20-%20FINAL%20-%20Feb%203%2022.pdf;
also available in the docket of this rulemaking.
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B. CLP Holders Who Have Passed the CDL Skills Test (Sec. 383.25(a))
Pursuant to Sec. 383.325(a), a CLP is considered a valid CDL for
purposes of BTW training on public roads or highways, as long as
specified minimum conditions are met. One of these conditions, set
forth in Sec. 383.25(a)(1), requires that the CLP holder be
accompanied by the holder of a valid CDL with the proper CDL group and
endorsement(s), who is physically present in the front seat of the
vehicle next to the CLP holder or, in the case of a passenger CMV,
directly behind or in the first row behind the driver, and must have
the CLP holder under direct observation and supervision. In adopting
this provision in the May 2011 final rule, the Agency noted that it is
not safe to permit inexperienced drivers who have not passed the CDL
skills test to drive unaccompanied.\4\
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\4\ 76 FR 26854, 26861 (May 9, 2011).
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Applications for Exemption--Sec. 383.25(a)(1)
On November 28, 2014, the Agency published for notice and comment
C.R. England Inc.'s (C.R. England) request for an exemption from Sec.
383.25(a)(1), which would allow CLP holders who have passed the CDL
skills test and are eligible to receive a CDL to drive a truck without
a CDL holder being present in the front seat, as long as the CDL holder
is present elsewhere in the vehicle (79 FR 70916). FMCSA, after
analyzing the exemption application and public comments received,
determined that the exemption, subject to the terms and conditions
imposed, would likely achieve a level of safety that is equivalent to,
or greater than, the level that would be achieved absent such
exemption. Subsequently, on June 11, 2015, the Agency published notice
that it granted the C.R. England exemption, effective June 13, 2015,
through June 12, 2017 (80 FR 33329). Under the terms and conditions of
the exemption, a CLP holder who has documentation of passing the CDL
skills test may drive a CMV for C.R. England without being accompanied
by a CDL holder in the front seat. In granting the exemption, FMCSA
concluded that CLP holders who have passed the skills test are
qualified and eligible to receive a CDL. The exemption enabled CLP
holders to drive as part of a team and have the same regulatory
flexibility that 49 CFR 383 provides for C.R. England's team drivers
with CDLs. On June 12, 2017, FMCSA published notice of its decision to
grant C.R. England's request that the initial exemption be renewed for
a period of 5 years, from June 13, 2017, through June 12, 2022 (82 FR
26975). The Agency subsequently renewed this exemption again for
another 5 years from June 13, 2022, until June 12, 2027 (87 FR 36360).
The renewals of the exemption were based, in part, on C.R. England's
data demonstrating that drivers utilizing the exemption during the
initial exemption period had better safety outcomes than non-exempt
drivers. The Agency also requested comments on each 5-year extension.
The C.R. England exemption requests and the notices of FMCSA's
disposition are available in the docket for this rulemaking.
On January 5, 2016 (81 FR 291), FMCSA published notice of an
application from CRST Expedited (CRST) requesting an exemption from the
requirement that a CLP holder must always be accompanied by a CDL
holder with the proper CDL class and endorsements, seated in the front
seat of the vehicle while the CLP holder performs BTW training on
public roads or highways and requested comments. On September 23, 2016,
the Agency granted CRST the exemption, effective from September 23,
2016, through September 24, 2018 (81 FR 65696). The rationale for
CRST's requested exemption, and the Agency's decision to grant the
exemption, was essentially the same as it was for the C.R. England
exemption discussed above. On August 9, 2018, FMCSA published notice of
CRST's request that FMCSA renew the initial exemption and requested
public comment (83 FR 39495). On October 19, 2018, the Agency renewed
CRST's exemption for a period of 5 years, effective September 23, 2018,
through September 24, 2023 (83 FR 53149). On [August 7, 2023, FMCSA
provisionally extended CRST's (now doing business as CRST The
Transportation Solution, Inc.) exemption for an additional 5 years,
through September 24, 2028, (88 FR 52241). The provisional exemption,
which is subject to public comment for 30 days following publication of
the exemption in the Federal Register, is based on CRST's assertion
that it has not experienced any safety issues while operating under the
exemption and will continue to monitor its safety data. The CRST
exemption requests and the notices of FMCSA's disposition are available
in the docket for this rulemaking.
Finally, on June 27, 2017, FMCSA granted a 5-year exemption from
Sec. 383.25(a)(1) to New Prime, Inc. (Prime) under the same terms and
conditions as the exemptions issued to C.R. England and CRST, described
above (82 FR 29143). In its application for exemption, Prime cited the
fact that CLP holders who have passed the skills test in the State
where they obtained driver training are eligible to obtain a CDL and
therefore capable of safely operating a CMV. Prime stated that granting
the exemption would enable CLP holders to work immediately as part of a
team of drivers to transport cargo through the company's freight
network before receiving their CDL credential from their State of
domicile. In response to Prime's request that FMCSA extend the
exemption the Agency provisionally renewed Prime's exemption for 5
years, from June 28, 2022 through June 27, 2027 (87 FR 38449), for
essentially the same reasons as the provisional renewal granted to CRST
in 2022. The Prime exemption requests and the notices of FMCSA's
disposition are available in the docket for this rulemaking.
Waivers--Sec. 383.25(a)(1)
On March 28, 2020, FMCSA issued a waiver from the requirement under
Sec. 383.25(a)(1) that a CLP holder be accompanied by a CDL holder,
with the proper CDL class and endorsements, seated in the front seat of
the vehicle while the CLP holder operates a CMV on public roads or
highways. Under the terms, conditions, and restrictions of the waiver,
a CLP holder may operate a CMV on public roads or highways without an
accompanying CDL holder present in the front seat of the vehicle,
provided that the CDL holder is elsewhere in the cab. In addition, the
CLP holder must be in possession of evidence from the testing
jurisdiction, including an authorized third-party tester, that the CLP
holder has passed the CDL driving skills test, and the CLP holder has a
valid non-CDL driver's license, CLP, and medical certificate. The
Agency granted the waiver to expedite CDL issuance to address supply
chain disruptions related to the COVID-19 national emergency, including
a shortage of CMV drivers. FMCSA re-issued the waiver on June 17, 2020,
September 18, 2021, December 15, 2020, February 16, 2021, May 26, 2021,
August 31, 2021, November 29, 2021,
[[Page 7332]]
February 26, 2022, May 27, 2022, and August 31, 2022. The waiver
expired on November 30, 2022.
C. Eligibility To Take the CDL Skills Test (Sec. 383.25(e))
Currently CLP holders, who have passed the required CDL knowledge
test(s), are not eligible to take the CDL skills test within the 14
days following initial issuance of the CLP, a set forth in Sec.
383.25(e). When this restriction was adopted in the May 2011 final
rule, the Agency explained the mandatory waiting period was necessary
to allow applicants to obtain sufficient BTW training in preparation
for the skills test.
On March 24, 2020, FMCSA issued a waiver from this requirement. The
terms, conditions, and restrictions of the waiver afforded States
discretion to allow CLP holders to take the CDL skills test without
waiting 14 days after initial issuance of the CLP, provided the CLP
holder had completed applicable ELDT requirements set forth in 49 CFR
part 380, subpart F. The Agency re-issued the waiver on June 17, 2020,
September 18, 2021, December 15, 2020, February 16, 2021, May 26, 2021,
August 31, 2021, November 29, 2021, February 26, 2022, May 27, 2022,
and August 31, 2022. The waiver expired on November 30, 2022.
D. CDL Testing Requirements for Out-of-State Driver Training School
Students (Sec. 383.79)
In the May 2011 final rule, FMCSA adopted a provision permitting a
State to administer the CDL skills test in accordance with 49 CFR part
383, subparts F, G, and H, to an applicant who has taken training in
that State and is to be licensed in another State (i.e., the State of
domicile). The testing State must electronically submit the skills test
results to the State of domicile in a secure and efficient manner. The
State of domicile must accept the results of a CDL skills test
administered to an applicant by any other State in fulfillment of the
applicant's testing requirements under Sec. 383.71 and the State's
test administration requirements under Sec. 383.73. The Agency
explained that the provision would help CLP holders obtain a CDL more
efficiently by not requiring the applicant to return to their State of
domicile to take the skills test after completing driver training in
another State. FMCSA further noted that, since CMV driving schools
routinely supply applicants with a truck or motorcoach for skills
testing purposes, requiring these applicants to return to the State of
domicile to take the CDL skills test would result in the applicant
having to incur the cost and inconvenience of securing a CMV in which
to take the test.
On March 28, 2020, FMCSA issued a waiver from the requirement that
the applicant must have received training in the testing State. Under
the terms and conditions of this waiver, States could elect to
administer the CDL skills test to any out-of-State CLP holder,
regardless of where the applicant received driver training. FMCSA noted
that because the regulatory standards set forth in 49 CFR part 383,
subparts F, G, H, and J set forth uniform national knowledge and skills
testing procedures and antifraud measures for the States, the waiver
would have no negative impact on safety. FMCSA noted that the
requirement in Sec. 383.79(a)(2) that the State of domicile must
accept the results of a driving skills test administered to the
applicant by any other State, in accordance with subparts F, G, and H
of this part, in fulfillment of the CDL applicant's testing
requirements under part 383, would continue to apply. The Agency re-
issued the waiver on June 17, 2020, September 18, 2021, December 15,
2020,
February 16, 2021, May 26, 2021, August 31, 2021, November 29,
2021, February 26, 2022, May 27, 2022, and August 31, 2022. The waiver
expired on November 30, 2022.
E. Transport of Empty Passenger CMVs by CDL Holders Without a P
Endorsement (Sec. 383.93(b))
Currently the FMCSRs require that CDL holders operating passenger
CMVs, including school buses, must obtain the P endorsement to
transport the vehicle. In October 2017, NHDOT submitted a petition for
rulemaking requesting that Sec. 383.93 be amended to permit CDL
holders who do not have a P endorsement to transport empty passenger
CMVs to repair facilities. NHDOT noted that the State's rural agencies
have encountered hardships based on the requirement for the driver to
have a P endorsement on their CDL because, while mechanics generally
have a CDL, they typically do not have a P endorsement. As a result,
the State agency must either incur the expense of having the vehicle
towed to the repair site or locate a driver with a P endorsement on
their CDL who can drive the CMV to the repair site. NHDOT noted that
the current requirement for a P endorsement does not seem necessary
when there are no passengers onboard. NHDOT's petition for rulemaking
is available in the docket for this rulemaking.
In 2019, the Agency received multiple requests for exemption from
the requirement that a CDL holder transporting an empty bus be required
to have a P endorsement. On August 13, 2019, the Agency responded to
those requests by posting an enforcement notice on FMCSA's website
announcing that the Agency does not intend to take enforcement action
against CDL holders driving an empty bus from the manufacturer to the
local distributor or in a driveaway-towaway operation without the P and
S endorsements, provided the driver possesses a bill of lading showing
the trip is for delivery only. The enforcement notice is available at
https://www.fmcsa.dot.gov/mission/chief-counsel/enforcement-notice.
In March 2022, FMCSA granted NHDOT's petition for rulemaking to
amend Sec. 383.93 to permit CDL holders to operate a passenger CMV
without having a P endorsement on their CDL when the driver is
transporting the vehicle to a repair facility and the vehicle has no
passengers onboard. The proposed amendment to Sec. 389.93(b) is based,
in part, on NHDOT's petition.
VI. Discussion of Proposed Rulemaking
The Agency proposes to improve the efficiency and convenience of
obtaining a CDL by increasing flexibilities in certain CDL licensing
processes, without negatively impacting safety. Additionally, the NPRM
would strengthen the program integrity of CDL knowledge tests
administered by third-party examiners and provide flexibility for CDL
holders transporting empty passenger CMVs. As discussed above, the
proposed revisions stem from the temporary regulatory relief FMCSA
provided in response to the impact of the COVID-19 public health
emergency on SDLAs' operations and on the supply chain and from
petitions for rulemaking submitted by ATA and NHDOT.
A. Definitions
The NPRM would add two new definitions to Sec. 383.5: (1) third-
party knowledge examiner, defined as ``a person employed by a third-
party knowledge tester who is authorized by the State to administer the
CDL knowledge tests specified in subparts G and H of this part;'' and
(2) third-party knowledge tester, defined as ``a person (including, but
not limited to, another State, a motor carrier, a private driver
training facility or other private institution, or a department, agency
or instrumentality of a local government) authorized by the State to
employ knowledge test examiners to administer the CDL knowledge tests
specified in subparts G and H of this part.'' The addition of these
terms is necessary to accommodate the proposed revisions
[[Page 7333]]
pertaining to third-party knowledge testing, as described below.
FMCSA also proposes to revise the current term third-party tester
to read third-party skills tester in light of the added definition for
third-party knowledge test examiner.
B. CLP Holders Who Have Passed the Skills Test
Currently, a CLP is considered a valid CDL to operate a CMV on
public roads or highways only for the purpose of BTW training, subject
to certain conditions. One of those conditions, set forth in Sec.
383.25(a)(1), states that the CLP holder must at all times be
accompanied by the holder of a valid CDL who has the proper CDL group
and endorsement(s) necessary to operate the CMV. The CDL holder must at
all times be physically present in the front seat of the vehicle next
to the CLP holder or, in the case of a passenger CMV, directly behind
or in the first row behind the driver and must have the CLP holder
under observation and direct supervision. When adopting this
requirement in the May 2011 final rule, FMCSA noted that it would not
be safe to permit an inexperienced driver who has not passed the skills
test to operate a CMV unaccompanied.\5\
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\5\ Ibid.
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The Agency proposes to amend Sec. 383.25(a)(1) by adding an
exception permitting a CLP holder who has passed the skills test to
operate a CMV for purposes other than BTW training without having a CDL
holder sitting in the front passenger seat or to operate an empty
passenger CMV, including a school bus, or an empty tank vehicle,\6\
without a CDL holder seated directly behind, or in the first row
behind, the CLP holder. The proposed exception would apply only if the
CLP holder has already passed the skills test, possesses documentary
evidence from the testing State of having passed the skills test, and
the holder of a valid CDL is physically present in the CMV. The Agency
believes the proposed revision would not negatively affect safety,
because, by passing the skills test, the CLP holder has demonstrated
their ability to safely operate the CMV.
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\6\ Under Sec. 383.25(a)(5)(i) and (ii) respectively, CLP
holders are prohibited from operating a CMV carrying passengers or a
school bus carrying passengers. For purposes of the prohibition,
Federal/State auditors and inspectors, test examiners, other
trainees, and the CDL holder accompanying the CLP holder as
prescribed by paragraph (a)(1), are not considered passengers. Under
Sec. 383.25(a)(5)(iii) a CLP holder may only operate an empty tank
vehicle and is prohibited from operating any tank vehicle that
previously contained hazardous materials that has not been purged of
any residue.
---------------------------------------------------------------------------
While the Agency anticipates this flexibility would be used
primarily by CLP holders who pass the skills test in a State other than
their State of domicile, the exception also applies when a CLP holder
passes the skills test in their State of domicile. For example, if a
CLP holder passes the skills test administered by a third-party skills
test examiner at a testing site located miles from the nearest SDLA,
the CLP holder could operate a CMV under this exception. The Agency
notes that CLP holders who pass the skills test in their State of
domicile and receive a temporary CDL authorizing them to operate a CMV
until they receive the CDL credential in the mail would not need to use
the exception because they would no longer be CLP holders.
The NPRM would provide flexibility for CLP holders, who, for
example, obtain driver training outside their State of domicile by
allowing them to be productively employed as a CMV driver before
formally receiving the CDL document issued by their State of domicile.
As noted above in the discussion of the previously granted exemptions
from Sec. 383.25(a)(1), CLP holders operating under the exception
could function as part of a team of drivers to transport cargo until
they receive the CDL credential from their State of domicile. The
proposed exception may therefore ease supply chain disruptions related
to CMV driver shortages while retaining an adequate assurance of safety
provided by the conditions under which these operations are allowed.
C. Eligibility To Take the CDL Skills Test
Currently, applicants who obtain a CLP after passing the required
knowledge test(s) are not eligible to take the CDL skills test during
the 14 days following initial issuance of the CLP, as set forth in
Sec. 383.25(e). The purpose of this mandatory waiting period is to
allow time for applicants to obtain CMV driver training in preparation
for taking the skills test. On February 7, 2022, FMCSA implemented ELDT
standards, including required BTW training on a driving range and on
public roads, set forth in 49 CFR part 380, appendices A through D.
States must verify that CLP holders completed the required ELDT before
administering the skills test, as set forth in Sec. 383.73(b)(11). The
Agency therefore proposes to remove paragraph (e) because the 14-day
waiting period is no longer necessary. The elimination of the mandatory
waiting period would permit applicants who successfully complete the
performance-based BTW training less than 14 days after initial issuance
of the CLP to obtain a CDL sooner than they can today. The Agency notes
that the ELDT regulations do not prohibit applicants from scheduling
the skills test before they have completed ELDT, which further
increases the efficiency of the skills testing process.
D. CDL Skills Testing for Out-of-State Applicants
Section 383.79(a)(1) permits, but does not require, an SDLA to
allow an out-of-State CDL applicant to take the CDL driving skills test
if the applicant also received training in that State. The skills test
must be administered in accordance with 49 CFR part 383, subparts F, G,
and H and test results must be transmitted electronically directly from
the testing State to the licensing State (i.e., State of domicile) in a
direct, efficient, and secure manner. The NPRM proposes to remove the
restriction that the out-of-State applicant must have obtained training
in the testing State to take the CDL skills test in the testing State.
SDLAs thus would be permitted to administer the CDL driving skills test
to out-of-State CDL applicants regardless of where the applicant
received driver training. The requirement that the State of domicile
accept the skills test results in fulfillment of the applicant's
testing requirements under Sec. 383.71, and the State's testing
administration requirements under Sec. 383.73, as currently set forth
in Sec. 383.79(a)(2), would remain unchanged.\7\
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\7\ 49 CFR 383.79(b) currently addresses CDL application
requirements for active duty military service members. The NPRM does
not propose to amend those provisions.
---------------------------------------------------------------------------
FMCSA proposes this revision so that CDL applicants can complete
the required skills testing as soon as possible without compromising
highway safety. Under the proposal, CLP applicants would be free to
schedule their skills test according to their needs or convenience. As
noted above, the testing State may, for example, be where an applicant
obtained training and has access to a CMV in which to take the skills
test, or it may be a neighboring State with a shorter wait list for
securing a skills test appointment than the applicant's State of
domicile. In any event, the requirement that training must occur in the
testing State is no longer necessary with implementation of FMCSA's
uniform minimum ELDT requirements on February 7, 2022. Applicants must
now comply with the Federal ELDT standards, set forth in 49 CFR part
380, subpart F, before taking the skills test, thereby ensuring
qualified applicants.
[[Page 7334]]
Under the proposal, the testing State must continue to administer the
skills test in accordance with existing requirements in 49 CFR part
383, subparts F, G, and H, which would ensure consistency in skills
test execution.
The Agency requests comment from SDLAs concerning the operational
impact of this proposed revision on either the testing State or the
State of domicile.
E. Third-Party Knowledge Examiners and Testers
As explained above in Section V., in accordance with FMCSA's
regulatory guidance issued on February 3, 2022, a State's discretionary
use of third-party knowledge examiners is not prohibited by statute or
regulation. States may therefore permit third-party knowledge examiners
to administer the knowledge test for CDL classes and endorsements.
Currently there are no regulatory requirements governing a State's use
of third-party knowledge examiners. The February 2022 guidance
represented a change in the Agency's position on States' use of third-
party knowledge examiners, rescinding previous guidance, initially
issued in 1993 by the Federal Highway Administration,\8\ FMCSA's
predecessor agency, stating that States should not permit third-party
knowledge testing outside the presence of a State knowledge examiner.
In explaining that change, FMCSA noted that it planned to undertake a
rulemaking to establish standards for States opting to permit the CDL
knowledge test to be administered by third-party examiners.
---------------------------------------------------------------------------
\8\ See, 58 FR 60734, 60739 (Nov. 17, 1993).
---------------------------------------------------------------------------
In the interim, FMCSA provided guidance to the States recommending,
but not requiring, best practices for States allowing third-party
knowledge testing, including following the training, certification, and
record check requirements currently applicable to State knowledge
examiners and the auditing and monitoring requirements currently
applicable to third-party skills examiners and testers. Both the
February 2022 notice of regulatory guidance and FMCSA's subsequent
``best practices'' guidance are available in the docket for this
rulemaking.
Consistent with the current regulatory guidance, the NPRM proposes
that States permitting third-party examiners to administer CDL
knowledge tests be subject to the same training (including refresher
training), testing, certification, and criminal background check
requirements applicable to State knowledge examiners, as set forth in
Sec. 384.228, and the auditing and monitoring requirements applicable
to third-party skills examiners, as set forth in Sec. 384.229. Because
certain provision of Sec. 384.228 already apply to third-party skills
examiners, FMCSA proposes to except certified third-party skills test
examiners who also administer the knowledge tests from those provisions
to avoid the application of duplicative requirements. Additionally,
FMCSA proposes to establish the conditions under which States would be
authorized to permit third-party knowledge testing, which currently
apply only to third-party skills testing, as set forth in Sec. 383.75.
The NPRM would add a new requirement that third-party knowledge testing
be administered electronically and securely to minimize the opportunity
for negligence or fraud that may exist when knowledge tests are
administered on paper.
The Agency believes application of these standards to third-party
knowledge examiners and testers would further ensure the integrity of
the knowledge testing program, just as the requirements in Sec.
384.228 ensure that State knowledge examiners are adequately trained
and otherwise qualified, and as Sec. Sec. 384.229 and 383.75 currently
ensure the integrity of third-party skills testing.
FMCSA invites comment on the proposed applicability of these
standards to third-party knowledge examiners and testers.
F. P Endorsement Requirements
In accordance with Sec. 383.93(b)(2) and (5), CDL holders
transporting CMVs designed to carry passengers, including school buses,
must have a P endorsement. Pursuant to Sec. 393.93(c)(2), drivers must
pass a specialized knowledge test and pass the skills test to obtain
the P endorsement. Under Sec. 383.117, the P endorsement knowledge
test topics include loading/unloading passengers, dealing with unruly
passengers, procedures for an emergency evacuation of the vehicle, and
other operating practices and procedures. The applicant must take the P
endorsement skills test in a passenger vehicle satisfying the
requirements of the vehicle group (e.g., Group B). The P endorsement is
intended primarily to ensure the driver has the necessary skills and
knowledge to safely transport passengers and does not otherwise require
additional on-road driving skills beyond those already required to hold
a CDL of the appropriate class. As discussed above, the Agency's
current enforcement policy permits a CDL holder to transport a
passenger CMV without having the P endorsement on their CDL when the
vehicle is being delivered to a distributor from the manufacturer, or
in a driveaway-towaway operation, when there are no passengers in the
vehicle except the driver and the driver possesses a bill of lading or
other documentation indicating the trip is for delivery only. FMCSA
proposes to amend Sec. 383.93(b) to create an exception to the
requirement that CDL holders have a P endorsement to operate an empty
passenger CMV, including an empty school bus, when the vehicle is being
transported for delivery or in a driveaway-towaway operation, as
defined in Sec. 390.5T. FMCSA notes that an S endorsement is not
required to operate an empty school bus because the S endorsement is
required only when the bus is transporting pre-primary, primary, or
secondary school students from home to school, school to home, or to
and from school-sponsored events, as set forth in the definition of
school bus in Sec. 383.5.
The Agency proposes this change to provide enhanced flexibility in
the delivery of empty passenger CMVs to a distributor or a repair
facility without compromising passenger safety. FMCSA emphasizes that
the underlying CDL requirements are unaffected by the proposed change;
the driver must possess a CDL of the appropriate class for operating
the passenger CMV, such as a Class B CDL to operate a motorcoach. As
NHDOT noted in its petition for rulemaking, while mechanics generally
have a valid CDL, most do not have the P endorsement. The proposed
change would facilitate the limited transportation of passenger CMVs,
thereby ensuring the timely delivery of the vehicle from the
manufacturer or the delivery of the vehicle to effect necessary
repairs. In addition, the proposed amendment would allow for timely
removal of a damaged (but still drivable) vehicle from the roadside
following a crash. The Agency concludes that delivery documentation
referenced in the current guidance, such as a bill of lading, need not
be a regulatory requirement. As explained above, in FMCSA's judgment,
an empty passenger CMV can be transported by a driver holding only a
CDL of the appropriate class with no impact on passenger safety.
Delivery documentation requirements would therefore impose
administrative burden on the transportation of empty CMVs without
improving safety.
The Agency requests comment on the proposed amendment.
[[Page 7335]]
G. Major Issues on Which the Agency Seeks Comment
While the Agency invites comment on all aspects of the NPRM, we are
particularly interested in receiving comments that address the
following issues:
1. What forms of documentation would be acceptable to demonstrate
to a law enforcement officer or CMV inspector that the CLP holder
operating the CMV has successfully completed the CDL skills test? What
form of documentation did States acting under the authority of the
waiver or exemptions provide for CLP holders who passed the skills test
in their State?
2. Should a CLP holder be permitted to operate a CMV under the
proposed exception to Sec. 383.25(a)(1) until the CLP expires or
should there be a shorter time period after passing the skills test
that the CLP holder must obtain the CDL credential? Please explain your
answer.
3. Did SDLAs relying on the waiver allowing a CLP holder to take
the CDL skills test without waiting 14 days following issuance of the
CLP experience a change in the applicant passing rate for the road test
portion of the skills test? Were there a large number of applicants who
took the skills test in your State without waiting 14 days? Did these
SDLAs see a reduction in skills testing backlogs in their State?
4. Are there safety or operational concerns associated with lifting
the mandatory 14-day waiting period between obtaining a CLP and taking
the CDL skills test? Would your State impose a waiting period between
CLP issuance and the CLP holder taking the skills test, even if it was
no longer be required? Please explain your answer.
5. The NPRM proposes to permit a State to administer the CDL skills
test to an out-of-State CLP holder who has not obtained training in the
testing State. If adopted, would removing this restriction have any
impact on your State's decision to permit out-of-State CLP holders to
take the skills test in the State? Please explain your answer.
6. With a few noted exceptions, the NPRM proposes to apply training
and oversight standards currently applicable to third-party skills
testers to third-party knowledge testers. Do you believe any of these
existing requirements are not relevant to third-party knowledge
testers? If so, please explain your answer.
7. Should State knowledge examiners be included in the auditing and
monitoring requirements proposed for third-party knowledge examiners in
new Sec. 384.229(b)(2) and (3) to minimize fraud? Why or why not?
8. What form of oversight do States currently provide for State
knowledge examiners? If State knowledge examiners were included within
the scope of the oversight requirements proposed in new Sec.
384.229(b)(2) and (3), would that result in additional costs for the
States? If so, please explain and estimate the additional costs.
9. Do you agree or disagree with the proposed requirement that CDL
knowledge tests administered by third-party examiners be securely
conducted electronically to minimize fraud? Please explain your answer.
10. FMCSA is aware that several States currently permit third-party
knowledge testing and that some States permitted third party knowledge
testing in accordance with waivers in effect between July 1, 2020, and
February 3, 2022. For these States, do/did you permit third-party
examiners to administer the tests in a physical location outside of the
SDLA (e.g., a testing center)? If not, why not? If so, please describe
the specific measures you take/took to ensure the integrity of the
third-party knowledge testing process in a separate physical location.
For example, how did/does your State verify the applicant's identity
before they take the knowledge test and that applicants take the test
themselves without assistance, such as reference materials?
11. Would your State consider allowing third-party knowledge
testing in accordance with the new requirements proposed by the NPRM?
Why or why not? What factors do you believe will influence your
decision?
12. The NPRM estimates that the proposed application of training,
record check, and oversight requirements to States opting to utilize
third-party knowledge examiners and testers would result in additional
costs to those States and has preliminarily identified cost estimates
in this NPRM. Do you agree with these estimated costs? Why or why not?
Do these costs change if the State already has an auditing and
monitoring program for third-party skills examiners?
13. How long would States need to adapt their administrative
processes and procedures to accommodate the proposed changes? Would any
of the proposed changes require a modification of SDLAs' IT systems or
a change in underlying State law?
14. Does the proposal to except CDL holders transporting empty
passenger CMVs, including school buses, from having a P endorsement in
driveway-towaway operations, or when transporting the vehicle from the
manufacturer to a distributor, raise any safety concerns? Why or why
not?
VII. Section-by-Section Analysis
This section summarizes the changes proposed for 49 CFR parts 383
and 384 in numerical order.
A. Proposed Changes to Part 383
Part 383 establishes standards for the issuance and administration
of CLPs and CDLs. The Agency proposes to amend Part 383 in the
following ways:
Section 383.5 Definitions
FMCSA proposes to add definitions of the terms third-party
knowledge examiner (a person employed by a third-party knowledge tester
who is authorized by the State to administer the CDL knowledge tests
specified in subparts G and H of this part) and third-party knowledge
tester (a person (including, but not limited to, another State, a motor
carrier, a private driver training facility or other private
institution, or a department, agency, or instrumentality of a local
government) authorized by the State to employ third-party knowledge
examiners to administer the CDL knowledge tests specified in subpart G
and H of this part). Additionally, FMCSA would revise the current term
third party tester to read third-party skills tester and add a hyphen
to the term ``third party'' in the definition of third party skills
test examiner.
Section 383.25 Commercial Learner's Permit (CLP)
FMCSA proposes to revise Sec. 383.25 by adding an exception to
paragraph (a)(1) that would permit CLP holders who have passed the
relevant CDL skills test(s) and possess documentary evidence of having
done so, to operate a CMV on public roads or highways for purposes
other than BTW training, as long as a CDL holder with the proper CDL
class and endorsements to operate the CMV is physically present in the
vehicle.
The Agency also proposes to amend Sec. 383.25 by removing
paragraph (e), which states that CLP holders are not eligible to take
the CDL skills test in the 14 days following initial issuance of the
CLP.
Section 383.75 Third Party Testing
The NPRM proposes to amend Sec. 383.75 by consolidating existing
paragraphs (a) through (c) into new paragraph (a) and adding a new
paragraph (b). Proposed new paragraph (a) would contain the current
auditing and monitoring requirements applicable to third party skills
testers as set forth
[[Page 7336]]
in current paragraphs (b) and (c). New paragraph (b) would contain
auditing and monitoring requirements for States choosing to authorize
third party knowledge testers and examiners. Section 383.75 currently
imposes auditing and monitoring requirements only on States that rely
on third party skills testers and examiners. The proposed oversight
requirements in new paragraph (b) governing a State's use of third
party knowledge testers would be based on the relevant provisions now
applicable to third party skills testers. FMCSA also proposes to add a
requirement that all knowledge tests administered by third party
examiners be conducted electronically. The NPRM also proposes that the
title of Sec. 383.75 be changed from ``Third party testing'' to
``Third party skills and knowledge testing'' to reflect the proposed
addition of new paragraph (b).
Section 383.79 Driving Skills Testing of Out-of-State Students;
Knowledge and Driving Skills Testing of Military Personnel
FMCSA proposes to revise Sec. 383.79(a)(1), by removing the
restriction requiring an applicant taking the CDL skills test in a
State other than the licensing State (i.e., the applicant's State of
domicile) to have obtained training in the testing State. Under the
proposed revision, CDL applicants would be able to take the skills test
in any State, regardless of where they obtained driver training.
Section 383.93 Endorsements
The NPRM proposes to amend Sec. 383.93(b), which requires drivers
to obtain State-issued endorsements to their CDL when operating
specified type of CMVs, including passenger CMVs (Sec. 383.93(b)(2))
and school buses (Sec. 383.93(b)(5)). The amendment would create an
exception from the requirement that a driver obtain a P endorsement
when operating passenger CMVs, including school buses, when the vehicle
is empty of all passengers other than the driver and is being
transported from the manufacturer to a distributor, or in a driveway-
towaway operation, as defined in Sec. 390.5T.
B. Proposed Changes to Part 384
Part 384 establishes standards and procedures to ensure that the
States comply with 49 U.S.C. 31311(a), which sets forth the
requirements for States' participation in the CDL program and specifies
the consequences of State noncompliance. The Agency proposes to amend
part 384 in the following ways:
Section 384.228 Examiner Training and Record Checks
This section requires States to follow certain examiner training
and record check protocols for State knowledge and skills examiners and
third-party skills examiners. The Agency proposes to include third
party knowledge examiners within the scope of the training and record
check requirements now applicable to State knowledge examiners, as set
forth in Sec. 384.228(a) through (c) (training standards and content,
completion of formal training course, passing the course exam, and the
State's certification of the examiner); (f)(1) (completion of refresher
training every four years); (f)(3) and (4) (refresher training course
content); (h) (nationwide criminal background checks); (i) (State's
retention of records related to examiner background checks training,
and certification; (j) State's recission of examiner certification for
any examiner failing to complete mandatory refresher training; and (k)
(required examiner training content may be supplemented by State-
specific material related to administering CDL knowledge and skills
tests). Most of these requirements currently apply to State and third-
party skills test examiners as well as State knowledge examiners. The
Agency does not intend to impose duplicative training and record check
requirements on certified skills test examiners who also administer
knowledge tests. Accordingly, to the extent that certified skills test
examiners are already subject to the provisions of Sec. 384.228 listed
above, States would be excepted from the training and record check
requirements regarding third-party knowledge examiners.
Additionally, FMCSA proposes to remove paragraph (g), which
requires States to conduct criminal background checks of all skills
test examiners prior to certifying them to administer skills tests.
This provision, originally adopted in the May 2011 final rule, is no
longer necessary in light of current paragraph (h), subsequently
amended in 2013 to require, in paragraph (h)(1), that criminal
background checks be completed for all State and third-party test
examiners before hiring and, in paragraph (h)(2), to require that
criminal background checks be completed for any current State or third-
party test examiner who has not had a criminal background check. FMCSA
would also revise current paragraph (h)(1) by adding an exception from
its requirements for current third-party skills testers who have
maintained their CDL test examiner certification and have already been
subject to a nationwide criminal background check. The remaining
paragraphs would be renumbered accordingly.
Section 384.229 Skills Examiner Auditing and Monitoring
FMCSA proposes to amend Sec. 384.229, which requires States to
conduct auditing and monitoring of State and third-party skills
examiners. The proposal would divide this section into two paragraphs,
one setting forth the requirements currently applicable to third-party
skills test examiners, which would remain unchanged, and the other
setting forth proposed auditing and monitoring requirements applicable
to third-party knowledge examiners.
VIII. Severability
As discussed above in Section III. Legal Basis, FMCSA is authorized
by 49 U.S.C. chapter 313 to promulgate regulations governing the
issuance of CDLs. The NPRM is also based on several concurrent
authorities to establish minimum standards for the fitness of drivers
operating CMVs and to promulgate standards for the safe operation of
CMVs.
Consistent with these statutory authorities, the NPRM proposes
revisions to 49 CFR part 383, Commercial Licensing Standards;
Requirements and Penalties and 49 CFR part 384, State Compliance with
Commercial Driver's License Program. The primary purpose of the NPRM is
to enhance the flexibility and efficiency of the CDL program by
proposing the removal of several current regulatory restrictions
without compromising safety. The NPRM would improve safety by proposing
measures to establish qualification requirements for third-party
knowledge examiners and monitoring and oversight requirements for
States choosing to utilize third-party knowledge testing.
The revisions proposed in the NPRM primarily pertain to discrete
regulatory requirements proposed in 49 CFR parts 383 and 384.
Therefore, FMCSA finds that the various provisions of the NPRM
pertaining to 49 CFR part 383 and the proposed change to part 384 are
severable and able to operate functionally if severed from each other
in a final rule resulting from this NPRM. In the event a court were to
invalidate one or more of the unique provisions of a final rule, the
remaining provisions should stand, thus allowing FMCSA to continue to
fulfill its Congressionally authorized role of regulating the issuance
of CDLs and promoting the safe operation of CMVs.
[[Page 7337]]
IX. Regulatory Analyses
A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563 (Improving Regulation and Regulatory Review), E.O. 14094
(Modernizing Regulatory Review), and DOT Regulatory Policies and
Procedures
The Office of Information and Regulatory Affairs (OIRA) determined
that this proposed rule is not a significant regulatory action 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, and by E.O.
14094 (88 FR 21879, Apr. 11, 2023), Modernizing Regulatory Review, and
does not require an assessment of potential costs and benefits under
section 6(a)(3) of that Order. This rule is also not significant within
the meaning of DOT regulations (49 CFR 5.13(a)). Accordingly, OMB has
not reviewed it under these Orders.
This proposal would (1) remove the restriction allowing a State to
administer the CDL skills test to a CLP holder who is domiciled in
another State only if the applicant obtained training in the testing
State; (2) permit a CLP holder who has passed the CDL skills test to
operate a CMV on public roads for purposes other than BTW training,
provided the CLP holder has evidence of passing the CDL skills test and
a qualified CDL holder is physically present in the CMV; (3) eliminate
the requirement that an applicant wait at least 14 days to take the CDL
skills test following initial issuance of the CLP; (4) establish
qualification requirements for third-party CDL knowledge examiners and
auditing and monitoring requirements for States that authorize third-
party knowledge testing; and (5) remove the requirement that a CDL
holder have a P endorsement when a passenger CMV is being transported
from the manufacturer to a distributor, or in a driveaway-towaway
operation, and the vehicle is not carrying any passengers. As discussed
below, FMCSA believes these changes would improve the efficiency and
convenience of CDL issuance, provide needed flexibility for CLP holders
who have demonstrated their ability to safely operate a CMV by passing
the CDL skills test, and improve highway safety by ensuring the
integrity of third-party CDL knowledge testing. The proposed rule could
affect States, third-party knowledge examiners, CDL applicants, P
endorsement applicants, and motor carriers.
States
States that currently choose to allow third-party knowledge testing
in their jurisdiction could be impacted by this rule to the extent that
the proposed requirements differ from current State practices. In
accordance with regulatory guidance adopted on February 3, 2022, States
may authorize the use of third-party knowledge examiners as long as
they adhere to the CDL knowledge test standards and requirements set
forth in 49 CFR part 383, subparts G and H. FMCSA does not presently
impose other regulatory requirements on States' use of third-party
knowledge testing; the NPRM would establish such standards. FMCSA is
aware that following publication of the February 3 guidance, at least
one State passed legislation authorizing third-party skills testers to
administer the CDL knowledge tests in that State. The Agency does not
know whether other States currently permit third-party knowledge
testing and requests comment from States that may currently allow this
practice. Under the proposal, the decision by an SDLA to permit third-
party examiners to provide knowledge tests would be discretionary, and
FMCSA is therefore unable to predict how many SDLAs would permit third-
party examiners to administer the CDL knowledge tests. FMCSA cannot
predict the number of States that would permit third-party testing as
proposed in the NPRM, but requests comment on the number of States that
would do so.
Third-Party Examiners
Based on a survey conducted by American Association of Motor
Vehicles Administrators (AAMVA) to which 38 States responded,\9\ FMCSA
estimates that there are over 3,000 third-party skills test examiners.
FMCSA assumes that some of these existing third-party skills examiners
would also become third-party knowledge examiners, but does not have a
basis to estimate the number of third-party knowledge examiners
resulting from this rule.
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\9\ Information collected by U.S. Department of Transportation
(DOT), Federal Motor Carrier Safety Administration (FMCSA) in March
2021 from the American Association of Motor Vehicles Administrators
(AAMVA).
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CDL Knowledge Test Applicants
A CDL applicant must hold a CLP in order to take the CDL skills
test. FMCSA estimates that approximately 600,000 to 700,000 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 the American
Association of Motor Vehicle Administrators, that enables SDLAs to
ensure that each commercial driver has only one driver's license and
one complete driver record. A master pointer record 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 knowledge test applicants. However, FMCSA
does not anticipate that all of these CDL knowledge test applicants
would be impacted by this rule.
FMCSA notes that, because the Agency cannot estimate the number of
States that would choose to permit third-party knowledge examiners in
accordance with the proposed rule, the extent to which this population
would be affected by the proposed rule is unknown.
Motor Carriers
The proposal would permit a CLP holder who has passed the CDL
skills test but has not yet been issued the CDL credential to operate a
CMV for purposes other than BTW training without being accompanied by a
CDL holder in the front passenger seat or, in the case of a passenger-
carrying CMV, directly behind or in the first row behind the driver, as
long as a CDL holder is present in the vehicle. Motor carriers may be
affected by this proposal, if they currently employ CLP drivers that
have passed the skills test but have not yet obtained the CDL
credential from their State of domicile. Other than the number of
impacted drivers estimated in the exemption applications submitted by
CRST, CR England, and Prime, FMCSA is unable to predict the overall
population of drivers that could be impacted by this provision.
Additionally, FMCSA does not know how many CLP holders have passed
their skills test but have not yet received their CDL credential, or
how many trips would be affected by this proposed change.
Costs, Benefits and Transfer Payments
Costs
This proposal would remove current regulatory restrictions related
to CDLs and CLPs and impose standards for third-party knowledge
examiners and monitoring and auditing requirements applicable to States
choosing to allow third-party knowledge testing. It could result in
costs to third-party examiners and States, and may result in savings to
motor carriers and drivers.
[[Page 7338]]
Under the proposal, third-party knowledge examiners would be
required to take a 20-hour training course every 3 years in order to
administer knowledge tests. There is not a specific skill set required
to be a knowledge test examiner, and many different occupations could
proctor knowledge test exams. For illustrative purposes, FMCSA
estimates that training and development managers (BLS 11-3131) with a
fully loaded wage rate of $99 ($99 = $57.69 + ($57.69 x 0.505 fringe
benefit rate) + ($57.69 x 0.21 overhead rate) would undergo the 20-hour
training course and become third-party knowledge test examiners.\10\
FMCSA assumes that this training is provided online and would not
require travel expenses. Therefore, the cost for each examiner would be
$1,980 ($99 x 20). FMCSA estimates that \1/3\ of the 14,000 examiners,
or 4,667, would take the training each year, at a cost of approximately
$9.2 million per year, or $92.4 million over the 10-year analysis
period. FMCSA estimates that the 10-year cost of this provision would
total $81 million discounted at 3 percent, and $69 million discounted
at 7 percent. Annualized costs would total $9.24 million discounted at
3 percent and $9.24 million discounted at 7 percent (all in 2021
dollars). FMCSA proposes to further require that the State certify that
each third-party knowledge examiner has completed a formal CDL
knowledge test examiner training course.
---------------------------------------------------------------------------
\10\ U.S. Department of Labor (DOL), Bureau of Labor Statistics
(BLS). Occupational Employment and Wage Statistics (OEWS). National.
May 2022. Available at: https://www.bls.gov/oes/current/oes_nat.htm
(accessed September 8th, 2023).
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FMCSA is proposing that knowledge tests be administered
electronically but is not proposing requirements on the physical
location of the knowledge testing site. For instance, FMCSA could
require that knowledge tests are taken in person at a designated
physical location other than the SDLA or allow third-party knowledge
test administrators to proctor exams without a State employee being
present. FMCSA requests comments on these alternatives, and whether
remote physical testing site requirements should be adopted.
States that opt to allow third-party knowledge testing would be
required to develop an auditing and monitoring program to ensure the
integrity of the knowledge testing program. FMCSA assumes that States
with existing third-party skills testing programs already have auditing
programs in place. FMCSA requests comment on the additional burden of
creating a third-party knowledge testing auditing process for these
States. FMCSA also requests comment on whether States that do not have
third-party skills testing programs would initiate a third-party
knowledge testing program, and on the cost to set up and administer an
auditing program. Further, at least one State has indicated that the
proposed changes could reduce demands on SDLA service centers,
resulting in a cost savings, by a reduction in State-administered
knowledge exams. FMCSA requests comment on this issue. FMCSA invites
comment on whether the Agency should include State knowledge examiners
in the auditing and monitoring requirements proposed for third-party
knowledge examiners, which would be a new requirement imposed on
States. FMCSA seeks comment on costs associated with any existing
auditing and monitoring programs that States may have for knowledge
test examiners, and on the additional costs that would result should
FMCSA impose such requirements.
The proposal would result in cost savings for motor carriers and
drivers because, after the CLP holder passes the skills test, the CDL
holder would be allowed to rest in the sleeper berth, thereby saving
on-duty time under the HOS rules that would otherwise be lost riding in
the passenger seat, overseeing the CLP holder. The proposed change
would therefore allow the CLP holder, with proof of a passing CDL
skills test, to operate the vehicle in a wage-earning capacity. FMCSA
does not know how many CLP drivers pass their skills test but do not
immediately receive their CDL credential, nor does FMCSA know the
number of vehicle miles or trips that might be impacted by this rule.
As such, FMCSA cannot estimate the cost savings that could result from
this provision but requests comment on the impact of this proposed
change.
Lastly, this proposed rule clarifies that CDL holders who have not
obtained the P endorsement may operate an empty passenger CMV,
including a school bus, from the manufacturer to the distributor or in
a driveaway-towaway operation. This proposed change, which is
consistent with FMCSA's current enforcement policy, reflects the fact
that the P endorsement is intended primarily to ensure the driver has
the necessary skills and knowledge to safely transport and evacuate
passengers. The proposed regulatory change would clarify that the
driver is not required to have a P endorsement when transporting an
empty passenger CMV, which could allow for an increase in cost savings
without impacting passenger safety. Motor carriers would no longer need
to incur the expense of having the vehicle towed to the repair site or
locating a driver with a P endorsement on their CDL who can drive the
CMV to the repair site. The proposed amendment would ensure consistency
of enforcement and broaden stakeholder awareness of this flexibility.
Benefits
As discussed above, FMCSA believes that the proposal would improve
highway safety by enhancing the integrity of third-party CDL knowledge
testing. The proposal would also create positive change for drivers,
industry stakeholders, and SDLAs by expanding knowledge and skills test
accessibility, permitting CDL holders to operate empty passenger CMVs
in limited circumstances without obtaining the P endorsement, and
eliminating the 14-day waiting period between receiving a CLP and
taking the CDL skills test.
Third-party knowledge testing would provide additional flexibility
for CLP applicants, who may be able to obtain their CLP sooner from a
third-party examiner than by taking the tests at the SDLA. The
knowledge tests administered by third-party examiners would be subject
to the same testing standards and methods used by State knowledge
examiners, as set forth in 49 CFR part 383 subparts G and H. The NPRM
proposes that knowledge tests given by third parties be administered
electronically, minimizing opportunity for fraud.
The proposal would expand the States' discretion to provide skills
testing to out-of-State applicants, regardless of the State in which
training was obtained. This provision would expand skills test
accessibility, allowing applicants to obtain a CDL sooner by scheduling
the skills test in a State with shorter waiting times. All States must
conduct skills testing, in accordance with the uniform minimum
requirements set forth in 49 CFR part 383, subparts G and H. Thus, the
State in which skills testing occurs does not impact how the driver's
skills are evaluated during the test.
The P endorsement is intended to ensure that the driver has the
knowledge and skills necessary to safely transport passengers and to
evacuate the CMV in case of emergency. The proposed change would
therefore enhance flexibility in the transport of empty passenger CMVs
to distributors, dealers, purchasers, and repair facilities without
compromising passenger safety.
Lastly, the elimination of the mandatory 14-day waiting period
between initial issuance of the CLP and taking the CDL skills test
would permit
[[Page 7339]]
applicants who successfully complete the performance-based BTW range
and road training in less than 14 days to obtain a CDL and be
productively employed sooner than they can today. Following the
implementation of the ELDT regulations in February 2022, this waiting
period is no longer necessary. The Agency has not identified any other
positive or negative benefits to society that would result from this
proposed change to Sec. 383.25(e).
Transfer Payments
There are also certain transfer payment effects that may occur as a
result of this proposed rule. 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 rule. SDLAs currently incur costs and receive fees to administer
knowledge tests to CLP applicants. If a State chooses to allow third-
party examiners to administer the knowledge test to CLP applicants, CLP
applicants would no longer be required to take the knowledge test at
the SDLA, streamlining the process to begin CDL driver training. In
this instance, the cost of providing the knowledge test and the
associated revenue for the provision of that service would be
transferred to the third-party tester. The Agency is unable to predict
the amount of these transfer payments as they would occur only in those
States allowing third-party examiners to administer the knowledge test.
B. Congressional Review Act
This rule is not a major rule as defined under the Congressional
Review Act (5 U.S.C. 801-808).\11\
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\11\ A major rule means any rule that OMB finds has resulted in
or is likely to result in (a) an annual effect on the economy of
$100 million or more; (b) a major increase in costs or prices for
consumers, individual industries, geographic regions, Federal,
State, or local government agencies; or (c) significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and export
markets (49 CFR 389.3).
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C. Advance Notice of Proposed Rulemaking
Under 49 U.S.C. 31136(g), FMCSA is required to publish an advance
notice of proposed rulemaking (ANPRM) or proceed with a negotiated
rulemaking, if a proposed rule is likely to lead to the promulgation of
a major rule. 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.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996,\12\ requires Federal agencies to consider the effects of the
regulatory action on small business and other small entities and to
minimize any significant economic impact. The term small entities
comprises 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 of less than 50,000 (5
U.S.C. 601(6)). 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 businesses.
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\12\ Public Law 104-121, 110 Stat. 857 (Mar. 29, 1996).
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Affected Small Entities
This rule has the potential to impact States, third-party knowledge
examiners, CDL skills test applicants, and motor carriers. Under the
standards of the RFA, as amended, States are not small entities because
they do not meet the definition of a small entity in section 601 of the
RFA. Specifically, States are not small governmental jurisdictions
under section 601(5) of the RFA, both because State government is not
among the various levels of government listed in section 601(5), and
because, even if this were the case, no State, including the District
of Columbia, has a population of less than 50,000, which is the
criterion to be a small governmental jurisdiction under section 601(5)
of the RFA.
CDL applicants are not considered small entities because they do
not meet the definition of a small entity in Section 601 of the RFA.
Specifically, drivers are considered neither a small business under
Section 601(3) of the RFA nor a small organization under Section
601(4).
Under the RFA, as amended, motor carriers and third-party knowledge
testers may be considered small entities based on the SBA-defined size
standards used to classify entities as small. SBA establishes separate
standards for each industry, as defined by the North American Industry
Classification System (NAICS). This rule could affect motor carriers in
many different industry sectors in addition to the Transportation and
Warehousing sector (NAICS sectors 48 and 49); for example, the
Construction sector (NAICS sector 23), the Manufacturing sector (NAICS
sectors 31, 32, and 33), and the Retail Trade sector (NAICS sectors 44
and 45). FMCSA anticipates that third-party knowledge testers would
largely be employed by testing entities that currently employ third-
party skills examiners. Many third-party skills examiners are also
training providers at universities, technical and trade schools, and
other training focused institutions that operate within the Educational
Services sector (NAICS sector 61). Industry groups within these sectors
have size standards for qualifying as small based on the number of
employees (e.g., 500 employees), or on the amount of annual revenue
(e.g., $27.5 million in revenue). Not all entities within these
industry sectors will be impacted by this rule, and therefore FMCSA
cannot determine the number of small entities based on the SBA size
standards.
Impact
CDL knowledge test examiners may incur training costs in order to
provide knowledge test exams to CLP applicants. To determine if this
impact would be significant, FMCSA considers the impact as a percentage
of annual revenue and estimates the impact to be significant if it
surpasses one percent of revenue. For each knowledge test examiner, the
knowledge tester would incur an opportunity cost of approximately
$1,980 ($99 x 20 hours). The knowledge test examiner would need to have
annual revenue below $198,000 ($1,980 / 0.01) in order for this impact
to reach the threshold of significance. Similarly, if a knowledge test
examiner employed 10 affected employees, the annual opportunity cost
would be $19,800 ($99 x 20 hours x 10 examiners) and would need to have
annual revenue below $1.9 million in order for the impact to be
considered significant. FMCSA considers it unlikely that a CDL
knowledge tester would be able to operate with such low revenues, and
as such does not anticipate that this rule would result in a
significant impact on small CDL knowledge testers.
Motor carriers could experience opportunity cost savings if team
drivers can work more efficiently when a driver with a CLP can operate
the CMV after passing the skills test but before receiving the CDL
credential. For example, a CDL holder could rest in the sleeper berth
while the CLP driver with proof of a passing CDL skills test could
operate the vehicle in a wage-earning capacity. FMCSA does not know how
many CLP drivers pass their skills test but do not immediately receive
their CDL credential, nor does FMCSA know the number of vehicle miles
or trips that
[[Page 7340]]
might be impacted by this rule. As such, FMCSA cannot estimate the cost
savings that could result from this provision but anticipates that any
cost savings would be below one percent of annual revenue for most
motor carriers.
Therefore, I hereby certify that this rule will not have a
significant impact on a substantial number of small entities.
E. Assistance for Small Entities
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996,\13\ FMCSA wants to assist small
entities in understanding this proposed rule so they can better
evaluate its effects on themselves 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
person listed under FOR FURTHER INFORMATION CONTACT.
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\13\ Public Law 104-121, 110 Stat. 857 (Mar. 29, 1996).
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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 (Office of the National
Ombudsman, see https://www.sba.gov/about-sba/oversight-advocacy/office-national-ombudsman) and the Regional Small Business Regulatory Fairness
Boards. The Ombudsman evaluates these actions annually and rates each
agency's responsiveness to small business. If you wish to comment on
actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247).
DOT has a policy regarding the rights of small entities to regulatory
enforcement fairness and an explicit policy against retaliation for
exercising these rights.
F. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
(UMRA) requires Federal agencies to assess the effects of their
discretionary regulatory actions. The Act addresses actions that may
result in the expenditure by a State, local, or Tribal Government, in
the aggregate, or by the private sector of $192 million (which is the
value equivalent of $100 million in 1995, adjusted for inflation to
2022 levels) or more in any 1 year. Though this NPRM would not result
in such an expenditure, and the analytical requirements of UMRA do not
apply as a result, the Agency discusses the effects of this rule
elsewhere in this preamble.
G. Paperwork Reduction Act
This proposed rule contains information collection requirements
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As
defined in 5 CFR 1320.3(c), collection of information comprises
reporting, recordkeeping, monitoring, posting, labeling, and other
similar actions. The title and description of the information
collection, a description of those who must collect the information,
and an estimate of the total annual burden follow. The estimate covers
the time for reviewing instructions, searching existing sources of
data, gathering and maintaining the data needed, and completing and
reviewing the collection.
Title: Commercial Driver Licensing and Testing Standards.
OMB Control Number: 2126-0011.
Summary of the Information Collection: This is to request OMB's
approval for the revision of the information collection titled
``Commercial Driver Licensing and Testing Standards,'' which is
currently due to expire on April 30, 2025. This ICR is being updated to
account for the proposed changes to regulatory requirements in the
``Amendments to the Commercial Driver's License Requirements; Increased
Flexibility for Testing and for Drivers After Passing the Skills Test''
NPRM, as well as updated and more recent data that has become available
following the approval of the current supporting statement. This
current submission includes all information collection requirements
contained in title 49 CFR part 383, titled ``Commercial Driver's
License Standards; Requirements and Penalties'' and title 49 CFR part
384 titled, ``State Compliance with Commercial Driver's License
Program.''
Need for Information: The licensed drivers in the United States
deserve reasonable assurances that their fellow motorists are properly
qualified to drive the vehicles they operate. In section 12005 of the
CMVSA, the Secretary is required to develop minimum Federal standards
for testing and licensing of operators of CMVs. Section 12007 of the
Act also directed the Secretary, in cooperation with the States, to
develop a clearinghouse to aid the States in implementing the one
driver, one license, and one driving record requirement. This
clearinghouse is known as CDLIS.
The CMVSA further required each person who has their CDL suspended,
revoked, or canceled by a State, or who is disqualified from operating
a CMV for any period, to notify his or her employer of such actions.
Drivers of CMVs must notify their employers within 1 business day of
being notified of the license suspension, revocation, and cancellation,
or of the lost right to operate or disqualification. These requirements
are reflected in 49 CFR part 383, titled ``Commercial Driver's License
Standards; Requirements and Penalties.'' Specifically, Sec. 383.21
prohibits a person from having more than one license; Sec. 383.31
requires notification of convictions for driver violations; Sec.
383.33 requires notification of driver's license suspensions; Sec.
383.35 requires notification of previous employment; and Sec. 383.37
outlines employer responsibilities. Section 383.111 requires the
passing of a knowledge test by the driver and Sec. 383.113 requires
the passing of a skills test by the driver. Section 383.115 contains
the requirement for the double/triple trailer endorsement; Sec.
383.117 contains the requirement for the P endorsement; Sec. 383.119
contains the requirement for the tank vehicle endorsement; and Sec.
383.121 contains the requirement for the hazardous materials
endorsement.
Currently, FMCSA is proposing to revise the regulations at 49 CFR
383 and 384 to increase flexibility for SDLAs and CDL applicants by:
(1) removing the restriction allowing a State to administer the CDL
skills test to a CLP holder who is domiciled in another State only if
the applicant obtained training in the testing State; (2) permitting a
CLP holder who has passed the CDL skills test to operate a CMV on
public roads for purposes other than BTW training, provided the CLP
holder has evidence of passing the CDL skills test and a qualified CDL
holder is physically present in the CMV; (3) eliminating the
requirement that an applicant wait at least 14 days to take the CDL
skills test following initial issuance of the CLP; and (4) removing the
requirement that CMV drivers must have a passenger (P) endorsement to
transport CMVs designed to carry passengers, including school buses,
when the vehicle is being transported in a driveaway-towaway operation
and the vehicle is not carrying any passengers. Additionally, the NPRM
proposes that third-party knowledge examiners be subject to the
training, certification, and record check standards currently
applicable to State knowledge examiners and the auditing and monitoring
requirements now applicable to third-party skills testers.
[[Page 7341]]
Proposed Use of Information: State officials use the information
collected on the license application form (Sec. 383.71) that is posted
to the CDLIS driver record, the information collected on the CLP
application form that is posted to the CDLIS driver record (Sec.
383.71), and the conviction and disqualification data posted to the
CDLIS driver record (Sec. 383.73) to prevent ineligible, not-
qualified, and/or disqualified CLP and CDL holders and applicants from
operating CMVs on the nation's highways. State officials are required
to adopt and administer an FMCSA approved program for testing and
ensuring the fitness of persons to operate a CMVs (Sec. 384.201).
State officials are also required to administer knowledge and skills
tests to CDL driver applicants (Sec. 384.202). The driver applicant is
required to correctly answer at least 80 percent of the questions on
each knowledge test in order to achieve a passing score on that test.
To achieve a passing score on the skills test, the driver applicant
must demonstrate that he/she can successfully perform all of the skills
listed in the regulations. During State CDL compliance reviews, FMCSA
officials review this information to ensure that the provisions of the
regulations are being carried out. Without the aforementioned
requirements, there would be no uniform control over driver licensing
practices to prevent uncertified and/or disqualified drivers from being
issued a CLP or CDL and to prevent unsafe drivers from spreading their
convictions among several licenses in several States and remaining
behind the wheel of a CMV. Failure to collect this information would
render the regulations unenforceable.
Description of the Respondents: Drivers with a CLP or CDL and
SDLAs.
Number of Respondents: 7,753,798 (7,712,074 CDL + 41,724 SDLAs).
Frequency of Response: Annual.
Burden of Response: 26,206,651 responses (7,925,642 CDL +
18,281,008 SDLAs). The associated cost burden is $103,725,614
($71,424,225 CDL + $32,301,389 SDLAs).
Estimate of Total Annual Burden: 2,858,202 hours (2,067,271 CDL +
790,931 SDLAs).
In accordance with 44 U.S.C. 3507(d), FMCSA will submit the
proposed information collection amendments to OIRA at OMB for its
approval.
The Agency requests comment on any aspect of this information
collection, including: (1) Whether the proposed collection is necessary
for FMCSA to perform its functions; (2) the accuracy of the estimated
burden; (3) ways for FMCSA to enhance the quality, usefulness, and
clarity of the collected information; and (4) ways that the burden
could be minimized without reducing the quality of the collected
information.
H. 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 has determined that this rule 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. The changes proposed in the NPRM would
increase flexibility for SDLAs in scheduling of CDL skills testing
appointments and for States opting to offer CDL skills testing to out-
of-State applicants. The NPRM could also reduce the number of P
endorsements issued by the SDLAs. The proposed training, record check,
and oversight requirements, currently applicable to States opting to
rely on third-party skills testers, similarly would apply only to
States choosing to permit third-party knowledge testing. Therefore,
this rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Impact Statement.
I. Privacy
The Consolidated Appropriations Act, 2005,\14\ requires the Agency
to assess the privacy impact of a regulation that will affect the
privacy of individuals. This NPRM would not require the collection of
personally identifiable information (PII). The Privacy Act (5 U.S.C.
552a) applies only to Federal agencies and any non-Federal agency that
receives records contained in a system of records from a Federal agency
for use in a matching program.
---------------------------------------------------------------------------
\14\ Public Law 108-447, 118 Stat. 2809, 3268, note following 5
U.S.C. 552a (Dec. 4, 2014).
---------------------------------------------------------------------------
The E-Government Act of 2002,\15\ requires Federal agencies to
conduct a Privacy Impact Assessment (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.
---------------------------------------------------------------------------
\15\ Public Law 107-347, sec. 208, 116 Stat. 2899, 2921 (Dec.
17, 2002).
---------------------------------------------------------------------------
In addition, the Agency submitted a Privacy Threshold Assessment
(PTA) to evaluate the risks and effects the proposed rulemaking might
have on collecting, storing, and sharing personally identifiable
information. The Agency will complete a PTA to evaluate the risks and
effects the proposed rulemaking might have on collecting, storing, and
sharing personally identifiable information. The PTA has been submitted
to FMCSA's Privacy Officer for review and preliminary adjudication and
to DOT's Privacy Officer for review and final adjudication.
J. 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.
K. National Environmental Policy Act of 1969
FMCSA analyzed this proposed rule pursuant to the National
Environmental Policy Act of 1969 (NEPA) (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), Appendix 2,
paragraphs (6)(s)(6) and (7). The categorical exclusions (CEs) in
paragraphs (6)(s)(6) and (7) cover requirements pertaining to providing
knowledge and skills tests to qualified applicants for commercial
drivers' licenses and requirements for State-issued commercial license
documentation. The proposed requirements in this rule are covered by
these CEs.
List of Subjects
49 CFR Part 383
Administrative practice and procedure, Alcohol abuse, Drug abuse,
Drug testing, Highway safety, Motor carriers, Penalties, Safety,
Transportation.
49 CFR Part 384
Administrative practice and procedure, Alcohol abuse, Drug abuse,
Highway safety, Motor carriers.
[[Page 7342]]
Accordingly, FMCSA proposes to amend 49 CFR chapter III, parts 383
and 384 as follows:
PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND
PENALTIES
0
1. The authority citation for part 383 continues 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. 1748, 1766, 1767;
sec. 1012(b) of Pub. L. 107-56, 115 Stat. 272, 297, sec. 4140 of
Pub. L. 109-59, 119 Stat. 1144, 1746; sec. 32934 of Pub. L. 112-141,
126 Stat. 405, 830; sec. 23019 of Pub. L. 117-58, 135 Stat. 429,
777; and 49 CFR 1.87.
0
2. Amend Sec. 383.5 by:
0
a. Adding, in alphabetical order, definitions for third-party knowledge
examiner, third-party knowledge tester, and third-party skills tester;
0
b. Adding a hyphen between the words ``third'' and ``party'' in the
definition of third party skills test examiner; and
0
c. Removing the definition of third party tester.
The additions read as follows:
Sec. 383.5 Definitions.
* * * * *
Third-party knowledge examiner means a person employed by a third-
party tester who is authorized by the State to administer the CDL
knowledge tests specified in subparts G and H of this part.
Third-party knowledge tester means a person (including, but not
limited to, another State, a motor carrier, a private driver training
facility or other private institution, or a department, agency or
instrumentality of a local government) authorized by the State to
employ knowledge test examiners to administer the CDL knowledge tests
specified in subparts G and H of this part.
* * * * *
Third-party skills tester means a person (including, but not
limited to, another State, a motor carrier, a private driver 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 tests
specified in subparts G and H of this part.
* * * * *
0
3. Amend Sec. 383.25 by:
0
a. Revising paragraph (a)(1); and
0
b. Removing paragraph (e).
The revision reads as follows:
Sec. 383.25 Commercial learner's permit (CLP).
(a) * * *
(1) The CLP holder is at all times accompanied by the holder of a
valid CDL who has the proper CDL group and endorsement(s) necessary to
operate the CMV. The CDL holder must at all times be physically present
in the front seat of the vehicle next to the CLP holder or, in the case
of a passenger vehicle, directly behind or in the first row behind the
driver and must have the CLP holder under observation and direct
supervision. Exception: A CLP holder who has passed the CDL skills test
may operate a CMV on public roads or highways for purposes other than
behind-the wheel training without the holder of a valid CDL of the
proper class and with all proper endorsements being present in the
front seat of the CMV or, in the case of a passenger vehicle, directly
behind or in the first row behind the driver, provided the CDL holder
is physically present elsewhere in the CMV. The CLP holder must also
possess documentary evidence from the testing State (including a third-
party skills tester authorized by the State) that they have passed the
CDL skills test.
* * * * *
0
4. Revise Sec. 383.75 to read as follows:
Sec. 383.75 Third-party skills and knowledge testing.
(a) Third-party skills tests. A State may authorize a third-party
tester to administer the skills tests as specified in subparts G and H
of this part, if the following conditions are met:
(1) The skills tests given by the third-party are the same as those
that would otherwise be given by the State using the same version of
the skills tests, the same written instructions for test applicants,
and the same scoring sheets as those prescribed in subparts G and H of
this part.
(2) The State must conduct an on-site inspection of each third-
party skills tester at least once every 2 years, with a focus on
examiners with irregular results such as unusually high or low pass/
fail rates.
(3) The State must issue the third-party tester a CDL skills
testing certificate upon the execution of a third-party skills testing
agreement.
(4) The State must issue each third-party CDL skills test examiner
a skills testing certificate upon successful completion of a formal
skills test examiner training course prescribed in Sec. 384.228.
(5) The State must, at least once every 2 years, do one of the
following for each third-party skills examiner:
(i) Have State employees covertly take the skills tests
administered by the third-party as if the State employee were a test
applicant;
(ii) Have State employees co-score along with the third-party
examiner during CDL skills tests to compare pass/fail results; or
(iii) Re-test a sample of drivers who were examined by the third-
party to compare pass/fail results.
(6) The State must take prompt and appropriate remedial action
against a third-party skills tester that fails to comply with State or
Federal standards for the CDL testing program, or with any other terms
of the third-party contract.
(7) A skills test examiner who is also a skills instructor either
as a part of a school, training program or otherwise is prohibited from
administering a skills test to an applicant who received skills
training by that skills test examiner.
(8) The State must revoke the skills testing certification of any
examiner who does not conduct skills test examinations of at least 10
different applicants per calendar year. Exception: Examiners who do not
meet the 10-test minimum must either take the refresher training
specified in Sec. 384.228 of this chapter or have a State examiner
ride along to observe the third-party examiner successfully administer
at least one skills test.
(9) The State has an agreement with the third-party tester
containing, at a minimum, provisions that:
(i) Allow FMCSA, or its representative, and the State to conduct
random examinations, inspections, and audits of its records,
facilities, and operations without prior notice;
(ii) Require that all third-party skills test examiners meet the
qualification and training standards of Sec. 384.228;
(iii) Allow the State to do any of the following:
(A) Have State employees covertly take the skills tests
administered by the third-party as if the State employee were a test
applicant;
(B) Have State employees co-score along with the third-party
examiner during CDL skills tests to compare pass/fail results; or
(C) Have the State re-test a sample of drivers who were examined by
the third-party.
(iv) Reserve unto the State the right to take prompt and
appropriate remedial action against a third-party skills tester that
fails to comply with State or Federal standards for the CDL testing
program, or with any other terms of the third-party contract;
(v) Require the third-party skills tester to initiate and maintain
a bond in an amount determined by the State to be sufficient to pay for
re-testing drivers in the event that the third-party or one or more of
its examiners is involved in fraudulent activities related to
[[Page 7343]]
conducting skills testing of applicants for a CDL. Exception: A third-
party tester that is a government entity is not required to maintain a
bond;
(vi) Require the third-party tester to use only CDL skills
examiners who have successfully completed a formal CDL skills test
examiner training course as prescribed by the State and have been
certified by the State as a CDL skills examiner qualified to administer
CDL skills tests;
(vii) Require the third-party skills tester to use designated road
test routes that have been approved by the State;
(viii) Require the third-party tester to submit a schedule of CDL
skills testing appointments to the State no later than two business
days prior to each test; and
(ix) Require the third-party skills tester to maintain copies of
the following records at its principal place of business:
(A) A copy of the State certificate authorizing the third-party
tester to administer a CDL skills testing program for the classes and
types of commercial motor vehicles listed;
(B) A copy of each third-party examiner's State certificate
authorizing the third-party examiner to administer CDL skills tests for
the classes and types of commercial motor vehicles listed;
(C) A copy of the current third-party skills tester agreement;
(D) A copy of each completed CDL skills test scoring sheet for the
current year and the past 2 calendar years;
(E) A copy of the third-party tester's State-approved road test
route(s); and
(F) A copy of each third-party examiner's training record.
(x) Require the third-party tester to notify the State driver
licensing agency through secure electronic means when a driver
applicant passes skills tests administered by the third-party tester.
(b) Third-party knowledge tests. A State may authorize a third-
party tester to administer the knowledge tests as specified in subparts
G and H of this part, if the following conditions are met:
(1) The knowledge tests given by the third-party are the same as
those that would otherwise be given by the State using the same version
of the knowledge tests and the same written instructions for test
applicants as prescribed in subparts G and H of this part. Exception:
Knowledge tests given by a third-party knowledge examiner must be
administered electronically;
(2) The State must conduct an on-site inspection of each third-
party knowledge tester at least once every 2 years, with a focus on
examiners with irregular results such as unusually high or low pass/
fail rates;
(3) The State must issue the third-party knowledge tester a CDL
knowledge testing certificate upon the execution of a third-party
knowledge testing agreement;
(4) The State must issue each third-party CDL knowledge test
examiner a knowledge testing certificate upon successful completion of
a formal knowledge test examiner training course prescribed in Sec.
384.228;
(5) The State must, at least once every 2 years, do one of the
following for each third-party knowledge examiner:
(i) Have State employees covertly take the knowledge tests
administered by the third-party as if the State employee were a test
applicant;
(ii) Have State employees co-score along with the third-party
examiner during CDL knowledge tests to compare pass/fail results; or
(iii) Re-test a sample of drivers who were examined by the third-
party to compare pass/fail results.
(6) The State must take prompt and appropriate remedial action
against a third-party knowledge tester that fails to comply with State
or Federal standards for the CDL knowledge testing program, or with any
other terms of the third-party contract;
(7) The State has an agreement with the third-party containing, at
a minimum, provisions that:
(i) Allow FMCSA, or its representative, and the State to conduct
random examinations, inspections, and audits of its records,
facilities, and operations without prior notice;
(ii) Require that all third-party knowledge test examiners meet the
qualification and training standards of Sec. 384.228;
(iii) Allow the State to do any of the following:
(A) Have State employees covertly take the knowledge tests
administered by the third-party as if the State employee were a test
applicant;
(B) Have State employees co-score along with the third-party
examiner during CDL knowledge tests to compare pass/fail results; or
(C) Have the State re-test a sample of drivers who were examined by
the third-party.
(iv) Reserve unto the State the right to take prompt and
appropriate remedial action against a third-party knowledge tester that
fails to comply with State or Federal standards for the CDL knowledge
testing program, or with any other terms of the third-party contract;
(v) Require the third-party knowledge tester to initiate and
maintain a bond in an amount determined by the State to be sufficient
to pay for re-testing drivers in the event that the third-party or one
or more of its examiners is involved in fraudulent activities related
to conducting skills testing of applicants for a CDL. Exception: A
third-party tester that is a government entity is not required to
maintain a bond;
(vi) Require the third-party tester to use only CDL knowledge
examiners who have successfully completed a formal CDL knowledge test
examiner training course as prescribed by the State and have been
certified by the State as a CDL knowledge examiner qualified to
administer CDL knowledge tests;
(vii) Require the third-party knowledge tester to notify the State
driver licensing agency through secure electronic means when a driver
applicant passes knowledge tests administered by the third-party
tester; and
(viii) Require the third-party knowledge tester to maintain copies
of the following records at its principal place of business:
(A) A copy of the State certificate authorizing the third-party
tester to administer a CDL knowledge testing program for the classes
and types of commercial motor vehicles listed;
(B) A copy of each third-party knowledge examiner's State
certificate authorizing the third-party examiner to administer CDL
knowledge tests for the classes and types of commercial motor vehicles
listed;
(C) A copy of the current third-party knowledge testing agreement;
and
(D) A copy of each third-party knowledge examiner's training
record.
0
5. Revise Sec. 383.79(a)(1) to read as follows:
Sec. 383.79 Driving skills testing of out-of-State students;
knowledge and driving skills testing of military personnel.
(a) * * *
(1) State that administers the driving skills test. A State may
administer its driving skills test, in accordance with subparts F, G,
and H of this part, to a person who is to be licensed in another United
States jurisdiction (i.e., State of domicile). Such test results must
be transmitted electronically directly from the testing State to the
licensing State in a direct, efficient, and secure manner.
* * * * *
0
6. Add paragraph (d) to Sec. 383.93 to read as follows:
Sec. 383.93 Endorsements.
* * * * *
(d) Exception. Operators are not required to obtain the passenger
(P) endorsement to their CDL if the following conditions are met:
(1) A commercial motor vehicle designed to transport passengers,
[[Page 7344]]
including a school bus, is being transported from the manufacturer to a
distributor or as part of a driveaway-towaway operation, as defined in
Sec. 390.5T of this subchapter; and
(2) The vehicle is empty of all passengers except the driver.
PART 384--STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM
0
7. The authority citation for part 384 continues to read as follows:
Authority: 49 U.S.C. 31136, 31301, et seq., and 31502; secs.
103 and 215 of Pub. L. 106-159, 113 Stat. 1748, 1753, 1767; sec.
32934 of Pub. L. 112-141, 126 Stat. 405, 830; sec. 5524 of Pub. L.
114-94, 129 Stat. 1312, 1560; and 49 CFR 1.87.
0
8. Revise Sec. 384.228 to read as follows:
Sec. 384.228 Examiner training and record checks.
For all State and third-party CDL test examiners, the State must
meet the following 10 requirements:
(a) Establish examiner training standards for initial and refresher
training that provides CDL test examiners with a fundamental
understanding of the objectives of the CDL testing program, and with
all of the knowledge and skills necessary to serve as a CDL test
examiner and assist jurisdictions in meeting the Federal CDL testing
requirements.
(b) Require all State knowledge and skills test examiners to
successfully complete a formal CDL test examiner training course and
examination before certifying them to administer CDL knowledge and
skills tests.
(c) The training course for CDL knowledge test examiners, including
third-party knowledge test examiners, must cover at least the following
three units of instruction:
(1) Introduction to CDL Licensing System:
(i) The Commercial Motor Vehicle Safety Act of 1986.
(ii) Drivers covered by CDL program.
(iii) CDL vehicle classification.
(iv) CDL endorsements and restrictions.
(2) Overview of the CDL tests:
(i) CDL test, classifications, and endorsements.
(ii) Different examinations.
(iii) Representative vehicles.
(iv) Validity and reliability.
(v) Test maintenance.
(3) Knowledge tests:
(i) General knowledge tests.
(ii) Specialized knowledge tests.
(iii) Selecting the appropriate tests and test forms.
(iv) Knowledge test administration.
(4) Exception. Current third-party skills testers who have
maintained their CDL test examiner certification are not required to
complete the units of instruction set forth in paragraphs (c)(1) and
(2) of this section.
(d) The training course for CDL skills test examiners must cover at
least the following five units of instruction:
(1) Introduction to CDL Licensing System:
(i) The Commercial Motor Vehicle Safety Act of 1986.
(ii) Drivers covered by CDL program.
(iii) CDL vehicle classification.
(iv) CDL endorsements and restrictions.
(2) Overview of the CDL tests:
(i) CDL test, classifications, and endorsements.
(ii) Different examinations.
(iii) Representative vehicles.
(iv) Validity and reliability.
(v) Test maintenance.
(3) Vehicle inspection test:
(i) Test overview.
(ii) Description of safety rules.
(iii) Test scoring procedures.
(iv) Scoring standards.
(v) Calculating final score.
(4) Basic control skills testing:
(i) Setting up the basic control skills course.
(ii) Description of safety rules.
(iii) General scoring procedures.
(iv) Administering the test.
(v) Calculating the score.
(5) Road test:
(i) Setting up the road test.
(ii) Required maneuvers.
(iii) Administering the road test.
(iv) Calculating the score.
(e) Require all third-party skills test examiners to successfully
complete a formal CDL test examiner training course and examination
before certifying them to administer CDL skills tests. The training
course must cover at least the five units of instruction in paragraph
(d) of this section.
(f) Require State and third-party CDL knowledge and skills test
examiners to successfully complete a refresher training course and
examination every 4 years to maintain their CDL test examiner
certification. The refresher training course must cover at least the
following:
(1) For CDL knowledge test examiners, including third-party
knowledge test examiners, the three units of training described in
paragraph (c) of this section.
(2) For CDL skills test examiners, the five units of training
described in paragraph (d) of this section.
(3) Any State specific material and information related to
administering CDL knowledge and skills tests.
(4) Any new Federal CDL regulations, updates to administering the
tests, and new safety related equipment on the vehicles.
(g)(1) Complete nationwide criminal background check of all State
and third-party test examiners at the time of hiring. Exception. For
current third-party skills testers who have maintained their CDL test
examiner certification and have already been subject to a nationwide
criminal background check, a State is not required to complete the
background check if the third-party skills test examiner also applies
to become certified as a third-party knowledge test examiner.
(2) Complete nationwide criminal background check of any State and
third-party current test examiner who has not had a nationwide criminal
background check.
(3) Criteria for not passing the criminal background check must
include at least the following:
(i) Any felony conviction within the last 10 years; or
(ii) Any conviction involving fraudulent activities.
(h) Maintain a record of the results of the criminal background
check and CDL examiner test training and certification of all CDL test
examiners.
(i) Rescind the certification to administer CDL tests of all test
examiners who do not successfully complete the required refresher
training every 4 years.
(j) The eight units of training described in paragraphs (c) and (d)
of this section may be supplemented with State-specific material and
information related to administering CDL knowledge and skills tests.
0
9. Revise Sec. 384.229 to read as follows:
Sec. 384.229 Skills and knowledge test examiner auditing and
monitoring.
(a) To ensure the integrity of the CDL skills testing program, the
State must:
(1) At least once every 2 years, conduct unannounced, on-site
inspections of third-party testers' and examiners' records, including
comparison of the CDL skills test results of applicants who are issued
CDLs with the CDL scoring sheets that are maintained in the third-party
testers' files;
(2) At least once every 2 years, conduct covert and overt
monitoring of examinations performed by State and third-party CDL
skills test examiners.
(3) Establish and maintain a database to track pass/fail rates of
applicants tested by each State and third-party CDL skills test
examiner, in order to focus covert and overt monitoring on examiners
who have unusually high pass or failure rates;
[[Page 7345]]
(4) Establish and maintain a database of all third-party skills
testers and examiners, which at a minimum tracks the dates and results
of audits and monitoring actions by the State, the dates third-party
skills testers were certified by the State, and name and identification
number of each third-party CDL skills test examiner;
(5) Establish and maintain a database of all State CDL skills
examiners, which at a minimum tracks the dates and results of
monitoring action by the State, and the name and identification number
of each State CDL skills examiner; and
(6) Establish and maintain a database that tracks skills tests
administered by each State and third-party CDL skills test examiner's
name and identification number.
(b) To ensure the integrity of the CDL knowledge testing program,
the State must:
(1) At least once every 2 years, conduct unannounced, on-site
inspections of third-party knowledge testers' and examiners' records;
(2) At least once every 2 years, conduct covert and overt
monitoring of examinations performed by third-party CDL knowledge test
examiners;
(3) Establish and maintain a database to track pass/fail rates of
applicants tested by each third-party CDL knowledge test examiner, in
order to focus covert and overt monitoring on examiners who have
unusually high pass or failure rates;
(4) Establish and maintain a database of all third-party knowledge
testers and examiners, which at a minimum tracks the dates and results
of audits and monitoring actions by the State, the dates third-party
knowledge testers were certified by the State, and name and
identification number of each third-party CDL knowledge test examiner;
and
(5) Establish and maintain a database that tracks knowledge tests
administered by each State and the name and identification number of
each third-party CDL knowledge test examiner.
Issued under authority delegated in 49 CFR 1.87.
Robin Hutcheson,
Administrator.
[FR Doc. 2024-01710 Filed 2-1-24; 8:45 am]
BILLING CODE 4910-EX-P