• Minnesota: Minnesota’s third party testing program is contained within Minn. R. 7410.6000 et seq. The Minnesota Public Safety Commissioner may only designate as a third party testing program an entity that is, among other things, either a motor carrier, a school bus company, a postsecondary school, a school district, a motorcycle safety course, or a public transit authority. An applicant to the third party testing program must agree to allow representatives of the Federal Highway Administration and the Minnesota Public Safety Commissioner to conduct random examinations, inspections, and audits of the testing operation without prior notice. An applicant to the third party testing program must also allow on-site inspections by agents of the Minnesota Public Safety Commissioner to determine compliance with Minn. R. 7410.6000 et seq. On at least an annual basis, agents of the Minnesota Public Safety Commissioner are permitted to either: (1) take tests actually administered by the third party testing program as if applicants; (2) test a sample of drivers who were examined by the third party testing program to compare pass/fail results; or (3) conduct a road test or skills test simultaneously with the third party tester to compare test results. Upon request, no less than 48 hours in advance, the third party testing program must provide the Minnesota Public Safety Commissioner with the schedule of times and dates that skills tests and road tests will be given. The Minnesota Public Safety Commissioner must send a letter of approval indicating the third party testing program may administer road tests and must issue a certificate to each approved tester, a copy of which must be on file in the office of the third party testing program. Third party testing programs must provide a record of examination, on a format obtained from or approved by the Minnesota Public Safety Commissioner, to an individual who has passed a road test or a skills test for a commercial motor vehicle license or endorsement. Generally, a third party tester may not simultaneously be an instructor in a licensed or approved driver education program. The third party testing program shall report the number of skills tests administered annually by all third party testers employed by the program. This report must be in writing or in electronic format approved by the Minnesota Public Safety Commissioner and received within 45 days of the end of each calendar year. To maintain certification as a third party tester, an individual must, among other things, conduct at least 12 road tests or skills tests annually over each 24-month period from the date of initial issuance of a third-party tester certificate.
Summary of the factual data and analytical methodologies that the agency used in support of the proposed rule and how any related findings support the regulatory approach chosen for the proposed rule: The vast majority of the provisions contained within this rule are replications of rules promulgated by the federal government that apply to third party testers and state governmental entities responsible for implementing a third party testing program. The Department already complies with nearly all of these federal requirements. WisDOT nevertheless needs to codify these processes and procedure by promulgating its own administrative rules that mirror those the federal government has already enacted. In establishing the bond amount required under 49 C.F.R. s. 383.75(a)(8)(v) and proposed under this rulemaking, DOT’s Division of Motor Vehicles (“DMV”) consulted with its Risk Management Section and bond companies to develop bond tiers based on the number of annual CDL skills a third party tester conducts. This bonding schedule has been in effect since January 2015. Analysis and supporting documentation used in support of the determination of the proposed rule's effect on small businesses: DOT identifies many third party testers as small businesses. The rule’s primary fiscal and compliance impacts on small business will involve the bonding requirement, which is based on the number of skills tests the third party tester conducts in a year. As noted above, DOT’s DMV consulted its Risk Management Section and bond companies to develop bond tiers based on the number of annual CDL skills a third party tester conducts.
Proposed rule’s effect on small businesses: Third party testers have been required to comply with this federal bonding provision since January 2015. Accordingly, DOT estimates that the promulgation of this rule will have a minimal financial impact on third party testers that are small businesses. Similarly, many of the process-related requirements contained within recent federal regulations such as scheduling procedures have already been effectuated. This rule’s intent is to provide certainty and clarity at the state level. The agency contact person listed below is also the small business regulatory coordinator for this proposed rule. This proposed rule, fiscal estimate, and other related documents may be viewed at:
Agency Contact Person:
Corey R. Kleist - Chief, Qualification and Issuance Section
Bureau of Driver Services
Division of Motor Vehicles
State of Wisconsin Department of Transportation
4802 Sheboygan Avenue, Room 809
Madison, Wisconsin 53707
Phone: (608) 266-0054
TEXT OF PERMANENT RULE
SECTION 1. Trans 115.01 (Note) is repealed.
SECTION 2. Trans 115.02 (8) is repealed and recreated to read:
Trans 115.02 (8) “FMCSA” means the federal motor carrier safety administration.
SECTION 3. Trans 115.02 (12) (Note) is repealed.
SECTION 4. Trans 115.04 (1) (a) 2., and (3) (c), are amended to read:
Trans 115.04 (1) (a) 2. Certification that the primary place of business is safe, and meets all requirements of state law and local ordinances, and, along with all records, is locked and secured when not in use.
Trans 115.04 (3) (c) Allow FHWA FMCSA and or the department, or both, to conduct scheduled and unscheduled examinations, inspections and audits.
SECTION 5. Trans 115.04 (3) (gm) is created to read:
Trans 115.04 (3) (gm) Ensure that the CDL skills tests are scheduled no later than two business days prior to each test using electronic means authorized by the department.
Note: The two-day scheduling period is required by 49 C.F.R. 383.75(a)(8)(viii). SECTION 6. Trans 115.04 (3) (hm), is created to read:
Trans 115.04 (3) (hm) Report all CDL test results to the Department within 48 hours of test completion using a department-approved secure electronic means. Results from successful or unsuccessful CDL pre-trip inspections, basic CMV control and road skills tests, and records of all other CDL tests or portions of tests passed or failed shall be reported under this paragraph.
Note: 49 C.F.R.383.75(b) requires electronic reporting of CDL test results to the Department by secure electronic means. SECTION 7. Trans 115.04 (3) (i) 1. is repealed and recreated to read:
Trans 115.04 (3) (i) 1. In the manner directed by the department.
SECTION 8. Trans 115.04 (3) (i) 2. is amended to read:
Trans 115.04(3)(i)2. Within 72 48 hours.
SECTION 9. Trans 115.04 (3) (k) is amended to read:
Trans 115.04 (3) (k) Administer a minimum of 12 10 CDL skills tests per year for different individuals.
SECTION 10. Trans 115.04 (3) (n) is created to read:
Trans 115.04 (3) (n) Not permit any individual to administer a skills test to an applicant who received CDL training from that individual.
Trans 115.04 (3) (n) Note: 49 C.F.R. 383.75(a)(7). provides that if an individual receives skills training from an instructor, that instructor may not administer a third party skills test of the individual. The analysis for the regulation at 78 FR 17877 (March 25, 2013) states that FMCSA intends that instructors who provide any type of training to an individual should not conduct a CDL skills test examination of that individual. This rule is drafted consistently with the expressed intent of the federal regulation. SECTION 11. Trans 115.05 (1) (g), (2) (a), (e), and (5) (b) are amended to read:
Trans 115.05 (1) (g) Have had no conviction involving fraudulent activities, and Within within 4 10 years prior to application and subject to ss. 111.321, 111.322 and 111.335, Stats., have had no felony conviction. Trans 115.05 (2) (a) Full name, home and business addresses, date of birth, social security number, operator's license number, and telephone number.
Trans 115.05 (2) (e) Date and place applicant successfully passed department sanctioned CDL examiner training course. An original application shall be accompanied by written proof verifying passage of the course, prepayment of course fees to the department, and completion of the department’s fingerprinting process.
Trans 115.05 (5) (b) Take part in all department required training courses, including retaking full, partial, or specialized CDL skills test examiner training when warranted because of performance or compliance issues, and all other department required workshops, and seminars. A person who has not had a valid certificate in the past 4 years shall retake department sanctioned CDL training.
SECTION 12. Trans 115.05 (5) (bm) is created to read:
Trans 115.05 (5) (bm) Successfully complete a refresher training course and examination every four years. The refresher training course shall comply with the requirements of 49 CFR 384.228(f). Note: This refresher training requirement is imposed upon states at 49 CFR 384.228(f). The State is required to rescind certification to act as a third party tester if a person fails to complete mandatory refresher training. See 49 CFR 384.228(j)(1). SECTION 13. Trans 115.05 (5) (c) is amended to read:
Trans 115.05 (5) (c) Conduct a minimum of 12 10 CDL skills tests per year for different individuals in accordance with this chapter and current instructions provided by the department. The examiner’s identification certificate shall be revoked for failure to meet this requirement. Note: See 49 C.F.R. 383.75(c). SECTION 14. Trans 115.05 (5) (e) is created to read:
Trans 115.05 (5) (e) Not administer a skills test to any person that the examiner has provided any CDL related training.
SECTION 15. Trans 115.07 (1), (2), (3), (4) (intro.) are amended to read:
Trans 115.07 (1) A new applicant for third party tester authority shall allow the FHWA FMCSA and or the department, or both, the department to inspect and audit its operations, facilities and records as they relate to its third party testing program, for the purpose of determining whether the applicant is qualified to be granted authority.
Trans 115.07 (2) A third party tester who has been granted authority shall allow the department and FHWA or FMCSA, or both, to inspect and audit its third party testing program to determine whether it remains in compliance with this chapter.
Trans 115.07 (3) The department and FHWA or FMCSA, or both, may perform inspections and audits at any time with or without prior notice to the third party tester.
Trans 115.07 (4) (intro.) Inspections and audits shall be conducted at least annually biennially and shall include an examination of all of the following:
SECTION 16. Trans 115.07 (4) (f) 3. is created to read:
Trans 115.07 (4) (f) 3. Having department employees’ co-score along with the third party examiner during CDL skills tests.
SECTION 17. Trans 115.09 (title) is amended to read:
Trans 115.09 (title) Minimum insurance and bond requirements.
SECTION 18. Trans 115.09 (4) is created to read:
Trans 115.09 (4) All third party testers that are not an agency or department of this state or its political subdivisions or another state shall maintain a bond in an amount set in a schedule determined by the department. The bond amount shall be sufficient to pay for retesting of drivers in the event the third party tester or one or more of its examiners is involved in fraudulent activities related to conducting skills testing of CDL applicants.
SECTION 19. EFFECTIVE DATE. This rule shall take effect on the first day of the month following publication in the Wisconsin Administrative Register as provided in s. 227.22 (2) (intro.), Stats. (END OF RULE TEXT)
