STATE OF WISCONSIN
DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY
PROPOSED ORDER
ADOPTING PERMANENT RULE
CLEARINGHOUSE RULE 15-065
The State of Wisconsin Department of Transportation Proposes an Order to repeal Trans 115.01 (Note), 115.02 (12) (Note); to amend Trans 115.04 (1) (a) 2., Trans 115.04 (3) (c), (i) 2., and (k), 115.05 (1) (g), (2) (a) and (e), (5) (b) and (c), 115.07 (1), (2), (3), (4) (intro.), and 115.09 (title); to repeal and recreate Trans 115.02 (8) and 115.04(3)(i)1. ; and to create Trans 115.04 (3) (gm), Trans 115.04 (3) (hm), 115.04 (3) (n), 115.05 (5) (bm) and (e), 115.07 (4) (f) 3., and 115.09 (4), relating to Third Party Testing, and affecting small businesses.
INTRODUCTION
The Statement of Scope for this rulemaking, SS 090-14, was approved by the Governor of the State of Wisconsin Scott Walker on August 18, 2014, published in Register No. 705A on September 14, 2014, and approved by the Secretary of the State of Wisconsin Department of Transportation (“DOT”) Mark Gottlieb, P.E., on October 10, 2014. DOT proposes an Order to repeal Trans 115.01 (Note), 115.02 (12) (Note) and 115.04 (3) (i); to amend Trans 115.04 (1) (a) 2., Trans 115.04 (3) (c), (h), and (k), 115.05 (1) (g), (2) (a) and (e), (5) (b) and (c), 115.07 (1), (2), (3), (4) (intro.), and 115.09 (title); to repeal and recreate Trans 115.02 (8); and to create Trans 115.04 (3) (n), 115.04 (3) (gm), 115.07 (4) (f) 3., and 115.09 (4), 115.05 (5) (cm) and 115.05 (5) (e), relating to Third Party Testing, and affecting small businesses.
ANALYSIS
Statutes interpreted: Wis. Stat. s. 343.16 (1 )(b). Explanation of agency authority: Under Wis. Stat. s. 85.16(1), DOT’s Secretary is authorized to make reasonable and uniform orders and rules deemed necessary. Under Wis. Stat. s. 343.02, DOT is required to administer and enforce the issuance of operator licenses and state identification cards and may promulgate rules DOT’s Secretary considers necessary to do so. Under Wis. Stat ss. 343.03 (1)(a) and (b), DOT is required to institute a classified driver license system that meets all federal standards. Under Wis. Stat. s. 343.16 (1)(a), DOT is required to conduct written and skills tests, and Wis. Stat. s. 343.16 (1)(b) authorizes DOT to contract with and use certain third party testers and examiners in conducting Commercial Driver’s License (“CDL”) skills tests. 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.
