Brief summary of the proposed rule: DOT’s policies and procedures authorizing persons other than DOT employees to conduct CDL skills tests are contained in ch. Trans 115, Admin. Code. Today, CDL skills tests are conducted only by third party testers and not by DMV license examiners. All CDL applicants are required to take CDL skills tests. Chapter Trans 115, Admin. Code, is drafted to comply with federal regulations contained in 49 C.F.R. part 383, Commercial Driver’s License Standards; Requirements and Penalties, and 49 C.F.R. part 384, State Compliance with Commercial Driver’s License Program. These federal regulations, which implement the federal Commercial Motor Vehicle Safety Act of 1986 (“CMVSA”), were recently amended, see 76 F.R. 26854 and 78 F.R. 17785. These amendments affect both how third party testers conduct skills tests and how the Department administers the third party testing program. WisDOT was required comply with these amendments by July 2015; It is amending ch. Trans 115, Admin. Code in order to comply, see 78 F.R. 17877 and 78 F.R. 17882 (amending 49 C.F.R. s. 384.301(f)). Additional amendments to ch. Trans 115, Admin. Code are necessary to ensure codification of compliance with changes to state law and improvements to business processes since the last time the Department updated ch. Trans 115, Admin. Code. The objective of the rule will not change. The proposed changes to ch. Trans 115, Admin. Code will accomplish the following: • Name the Federal Motor Carrier Safety Administration (“FMCSA”) rather than the Federal Highway Administration as the federal agency responsible for enforcing the Federal Motor Carrier Safety Regulations. (The FMCSA was created by congress in 2000 to separate commercial motor vehicle regulatory functions from the Federal Highway Administration.) Audit functions formerly performed by FHWA, are now performed by FMCSA. The rule will establish that a new applicant for third party tester authority must allow the FMCSA 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. It will also make clear that third party testers must allow the FMCSA, as well as WisDOT, to conduct scheduled and unscheduled examinations, inspections, and audits.
• In accordance with state and federal law, prohibit individual third party testers from administering a CDL skills test to a person who received training from that individual, see 49 C.F.R. 383.75(a)(7). Require CDL skills testers to use an electronic scheduling system consistent with 49 C.F.R. 383.75(b). Require 48 hours elapse between the scheduling and conduct of a CDL skills test. See 49 C.F.R. 383.75(a)(8)(viii). • Require the use of electronic reporting of CDL skills test results within 48 hours of the grading of the CDL skills test, consistent with the requirements of 49 C.F.R. 383.75(b). • Establish that a third party tester must conduct a minimum of 10 CDL skills tests per year consistent with the minimum requirements of 49 C.F.R. 383.75(c). • Establish that a third party examiner must conduct a minimum of 10 CDL skills tests per year for different individuals, or face revocation of the examiner’s CDL identification certificate. See 49 C.F.R. 383.75(c). • Require third party examiners to undergo refresher training at least once every four years. See 49 C.F.R. 384.228(f). • Require third party examiners to submit to an initial nationwide criminal background check by means authorized by DOT and disqualify any third party examiner who has been convicted of a felony within the past 10 years or convicted of any crime involving fraudulent activity prior to the application. See 49 C.F.R. 384.228(g). • Establish that DOT must conduct on-site inspections and audits of third party testers at least once every two years. See 49 C.F.R. 384.229. Provide that DOT may determine the effectiveness of third party testers by having DOT employees co-score a CDL skills test along with a third party examiner to compare results. See 49 C.F.R.384.229. Establish that a private or non-governmental third party tester must maintain a bond in an amount 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 the CDL skills tests for CDL applicants. See 49 CFR 383.75(a)(8)(v). • Establish that third party examiner applicants attending CDL skills test examiner training must submit course fees and satisfy all fingerprinting requirements prior to the training.
Remove the requirement that a third party examiner’s social security number appear on the third party examiner’s identification certificate.
Clarify that the requirement that a third party examiner must take part in all DOT required training includes retaking full, partial, or specialized CDL skills test examiner training when warranted as a result of performance or compliance issues and establish that a person who has not had a valid certificate in the preceding 2 years shall retake the full CDL skills test examiner training as sanctioned by DOT.
Require that a third party tester’s primary place of business, occupied structures, and records are locked and secured when such facilities are not in use.
Summary of, and comparison with, existing or proposed federal statutes and regulations intended to address the activities to be regulated by the proposed rule: There are a number of recently amended federal regulations contained in 49 C.F.R. part 383, Commercial Driver’s License Standards; Requirements and Penalties, and 49 C.F.R. part 384, State Compliance with Commercial Driver’s License Program which implement the CMVSA and address the activities the proposed rule intends to regulate: • In relevant part, 49 C.F.R. s. 383.75(a)(8)(i) provides that a State may authorize a third party tester to administer the skills tests specified in subparts G and H of 49 C.F.R. part 383 if the state has an agreement with the third party containing, among other things, a provision allowing the FMCSA or its representatives, or the State, or both, to conduct random examinations, inspections, and audits of its records, facilities, and operations without prior notice. Similarly, 49 C.F.R. s. 384.229 requires a State to conduct various auditing, monitoring, and tracking functions of third party testers and examiners. In relevant part, 49 C.F.R. s. 383.75(a)(7) provides that a skills tester that is also a driver training school is prohibited from administering a skills test to an applicant who was trained by the training school, subject to a limited exception. • In relevant part, 49 C.F.R. s. 383.75(a)(8)(viii) provides that a State may authorize a third party tester to administer the skills tests specified in subparts G and H of 49 C.F.R. part 383 if the state has an agreement with the third party containing, among other things, a provision requiring the third party tester to submit a schedule of CDL skills test appointments to the State no later than two business days prior to each test. • In its entirety, 49 C.F.R. s. 383.75(b) provides that the third party tester must notify the State driver licensing agency through secure electronic means when a driver applicant passes skills tests administered by the third party tester. • In relevant part, 49 C.F.R. s. 383.75(c) provides that 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, but allows the examiner to retain his credentials if he either takes refresher training or is observed taking a skills test by a DOT skills test examiner. • In its entirety, 49 C.F.R. s. 383.75(a)(8)(ii) provides that a State may authorize a third party tester to administer the skills tests specified in subparts G and H of 49 C.F.R. part 383 if the state has an agreement with the third party containing, among other things, a provision requiring all third party skills test examiners to meet the qualification and training standards of 49 C.F.R. s. 384.228. In turn, and in its entirety, 49 C.F.R. s. 384.228(g) requires the State to complete a national criminal background check of all skills test examiners prior to certifying them to administer CDL skills tests. Similarly, 49 C.F.R. s. 384.228(h) requires the State to complete a national criminal background check of all State and third party test examiners at the time of hiring and complete a national criminal background check of any State and third party current test examiner who has not had a national criminal background check. This provision further provides that criteria for not passing this criminal background check must include at least the following: (i) any felony conviction within the last 10 years; and (ii) any conviction involving fraudulent activities. • As briefly noted above, 49 C.F.R. s. 384.229 provides that to ensure the integrity of the CDL skills testing program, the State must, 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. • In its entirety, 49 C.F.R. s. 383.75(a)(8)(iii)(B) provides that a State may authorize a third party tester to administer the skills tests specified in subparts G and H of 49 C.F.R. part 383 if the state has an agreement with the third party containing, among other things, a provision allowing the State to have State employees co-score along with the third party examiner during CDL skills tests to compare pass/fail results. • In its entirety, 49 C.F.R. s. 383.75(a)(8)(v) provides that a State may authorize a third party tester to administer the skills tests specified in subparts G and H of 49 C.F.R. part 383 if the state has an agreement with the third party containing, among other things, a provision requiring the third party 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 for applicants for a CDL. Comparison with similar rules in Illinois, Iowa, Michigan, and Minnesota: Illinois, Iowa, Michigan, and Minnesota all have similar laws complying with federal regulatory requirements, of which are described below:
• Illinois: Illinois’s third-party certification program is contained, in part, within 92 Ill. Admin. Code s. 1030.60. Illinois offers two types of licenses, one for third party testers (“third-party certifying entity”) and one for third party examiners (“third-party certification safety officer”). In Illinois, third-party certifying entities may certify only those driver applicants employed and on the payroll of the entity at the time of certification. Third-party certifying entities shall not engage in or permit any type of fraudulent activity, with reference to either any certified individual or the Illinois Secretary of State. Each third-party certifying entity must have at least one employee who is licensed as a third-party certification safety officer. Third-party certifying entities must provide each employee or member who takes and passes the skills tests with documentary proof that serves as evidence to the Illinois Secretary of State, Department of Driver Services (“ISSDDS”) that the individual has successfully passed the skills tests administered by the third-party certifying entity. Third-party certifying entities must submit completed application forms to the ISSDDS for each main office, branch office, and third-party certification safety officer. Third-party certifying entities must allow ISSDDS and the FMCSA to conduct random examinations, inspections, and audits without prior notice and must allow ISSDDS to conduct on-site inspections at least annually. ISSDDS must annually re-examine a sample percentage of the certified employees or members to compare pass/fail results and determine the percentage of certified individuals employed by, or who are members of, the third-party certifying entity. The Illinois Secretary of State must deny an application for a third-party certifying entity license to any commercial driver training school. The Illinois Secretary of State must deny a third-party certification safety officer license if the individual is an owner or instructor of a commercial driver training school or has been convicted of driving under the influence of alcohol and/or other drugs, leaving the scene of a fatal accident, reckless homicide, reckless driving, or similar out-of-state offenses within 10 years prior to the date of application or has been convicted two or more times of any of these offenses or combination of these offenses within 20 years prior to the date of application.
• Iowa: Iowa’s legislature very recently authorized the Iowa Department of Transportation to promulgate rules allowing for third parties other than and in addition to community colleges to conduct the CDL skills tests. For instance, 2014 Iowa Senate File 2355 provides that the Iowa Department of Transportation may by rule designate third party testers to administer the driving skills tests required for a commercial driver’s license, provided that: (1) the driving skills test is the same as that which would be administered by the state; (2) the third party tester contractually agrees to comply with 49 C.F.R. s. 383.75 as adopted by rule by the Iowa Department of Transportation; (3) any skills test examiner used by the third party tester meets the requirements of 49 C.F.R. s. 383.75 and 49 C.F.R. s. 384.228, as adopted by rule by the Iowa Department of Transportation; (4) any third party tester besides a community college is an Iowa based motor carrier or its subsidiary that has its principal office within Iowa and operates a commercial driver training facility in Iowa; and (5) if required, the third party tester conduct a number of skills examinations in excess of the number required under 49 C.F.R. s. 383.75 in order to remain qualified as a third party tester. • Michigan: Michigan’s third-party testing program is authorized under Mich. Comp. Law s. 257.309(4), which provides that the Michigan Secretary of State is prohibited from issuing an original operator’s license without an examination that includes a driving skills test conducted by the Michigan Secretary of State or by a designated examining office. The Michigan Secretary of State may enter into an agreement with another public or private corporation or agency to conduct a driving skills test. Before the Michigan Secretary of State authorizes a person to administer a corporation’s or agency’s driver skills test, that person or examiner must complete both a state and federal bureau of investigation fingerprint based criminal history check through the Michigan Department of State Police. In an agreement with another public or private corporation or agency to conduct a driving skills test, the Michigan Secretary of State must prescribe the method and examination criteria to be followed by the corporation, agency, or examiner when conducting the driving skills test and the form of the certification to be issued to a person who satisfactorily completes a driving skills test. • 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.
