Amendments to the Commercial Driver's License Requirements; Increased Flexibility for Testing and for Drivers After Passing the Skills Test, 7327-7345 [2024-01710]
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Federal Register / Vol. 89, No. 23 / Friday, February 2, 2024 / Proposed Rules
this action. Consideration of
environmental justice is not required as
part of this action, and there is no
information in the record inconsistent
with the stated goal of Executive Order
12898 of achieving environmental
justice for people of color, low-income
populations, and Indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: January 29, 2024.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2024–02082 Filed 2–1–24; 8:45 am]
BILLING CODE 6560–50–P
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
Federal Motor Carrier Safety
Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
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
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SUMMARY:
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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
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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 81⁄2 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
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(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.
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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-systemrecords-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
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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 thirdparty 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)
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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 § 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 newlycredentialed CDL drivers in physical
possession of the CDL document.
CLP Holders Eligible To Take the CDL
Skills Test
As set forth in § 383.25(e), CLP
holders are not eligible to take the CDL
skills test in the first 14 days following
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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 § 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 thirdparty 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.
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 § 384.228. Third-party skills
examiners already certified under
§ 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 § 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
§ 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
1 See,
87 FR 6045 (Feb. 3, 2022).
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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 § 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 driveawaytowaway 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 thirdparty 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
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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
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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.
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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 (§§ 383.25, 383.79, 384.228, and
384.229) or revised (§§ 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
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devoted to administering the knowledge
test as required in § 384.228(c)(3); 2
(2) Eliminate from the requirement in
§ 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
§ 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 (§ 383.75)
On April 9, 2020, FMCSA waived the
CDL knowledge test examiner training
requirements in § 384.228(b) and (c) for
certain third-party CDL skills test
examiners. The waiver allowed Stateauthorized 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 § 384.228(d) to
administer the CDL knowledge test
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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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 thirdparty skills examiners to administer the
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CDL knowledge test, subject to certain
conditions.3 The Agency withdrew the
waiver because it was based on the prior
(rescinded) guidance stating that thirdparty knowledge testing was prohibited
under FMCSA’s regulations.
B. CLP Holders Who Have Passed the
CDL Skills Test (§ 383.25(a))
Pursuant to § 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 § 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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Applications for Exemption—
§ 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 § 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
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.
4 76 FR 26854, 26861 (May 9, 2011).
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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
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7331
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
§ 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—§ 383.25(a)(1)
On March 28, 2020, FMCSA issued a
waiver from the requirement under
§ 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,
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C. Eligibility To Take the CDL Skills Test
(§ 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
§ 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.
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 § 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.
D. CDL Testing Requirements for Out-ofState Driver Training School Students
(§ 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 § 383.71 and the
State’s test administration requirements
under § 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
E. Transport of Empty Passenger CMVs
by CDL Holders Without a P
Endorsement (§ 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
§ 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
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August 31, 2022. The waiver expired on
November 30, 2022.
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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/enforcementnotice.
In March 2022, FMCSA granted
NHDOT’s petition for rulemaking to
amend § 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 § 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 thirdparty 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 § 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
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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 § 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
The Agency proposes to amend
§ 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
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5 Ibid.
6 Under § 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 § 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.
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CLP holder has demonstrated their
ability to safely operate the CMV.
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 § 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 § 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 § 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
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7333
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 outof-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-ofState 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 § 383.71, and the
State’s testing administration
requirements under § 383.73, as
currently set forth in § 383.79(a)(2),
would remain unchanged.7
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.
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.
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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.
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
8 See,
58 FR 60734, 60739 (Nov. 17, 1993).
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§ 384.228, and the auditing and
monitoring requirements applicable to
third-party skills examiners, as set forth
in § 384.229. Because certain provision
of § 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 thirdparty skills testing, as set forth in
§ 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 § 384.228 ensure that
State knowledge examiners are
adequately trained and otherwise
qualified, and as §§ 384.229 and 383.75
currently ensure the integrity of thirdparty 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 § 383.93(b)(2) and
(5), CDL holders transporting CMVs
designed to carry passengers, including
school buses, must have a P
endorsement. Pursuant to § 393.93(c)(2),
drivers must pass a specialized
knowledge test and pass the skills test
to obtain the P endorsement. Under
§ 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
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their CDL when the vehicle is being
delivered to a distributor from the
manufacturer, or in a driveawaytowaway 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 § 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 § 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 preprimary, 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 § 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.
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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 § 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 § 384.229(b)(2) and (3) to minimize
fraud? Why or why not?
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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 § 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 thirdparty 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 drivewaytowaway operations, or when
transporting the vehicle from the
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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 thirdparty knowledge tester who is
authorized by the State to administer
the CDL knowledge tests specified in
subparts G and H of this part) and thirdparty 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 thirdparty 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 § 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
§ 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
§ 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
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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 § 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
§ 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
§ 383.93(b), which requires drivers to
obtain State-issued endorsements to
their CDL when operating specified type
of CMVs, including passenger CMVs
(§ 383.93(b)(2)) and school buses
(§ 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 § 390.5T.
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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:
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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 § 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 § 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
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nationwide criminal background check.
The remaining paragraphs would be
renumbered accordingly.
Section 384.229 Skills Examiner
Auditing and Monitoring
FMCSA proposes to amend § 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 thirdparty 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.
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IX. Regulatory Analyses
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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.
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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 thirdparty 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.
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,
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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7337
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.
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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 ×
0.505 fringe benefit rate) + ($57.69 ×
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 ×
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 10year 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.
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 thirdparty 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 thirdparty skills testing programs already
have auditing programs in place.
FMCSA requests comment on the
additional burden of creating a thirdparty knowledge testing auditing
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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process for these States. FMCSA also
requests comment on whether States
that do not have third-party skills
testing programs would initiate a thirdparty 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 Stateadministered 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
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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 14day 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
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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 § 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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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.
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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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.
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),
12 Public Law 104–121, 110 Stat. 857 (Mar. 29,
1996).
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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 thirdparty 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 × 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 × 20 hours × 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
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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.
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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.
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-nationalombudsman) 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
13 Public Law 104–121, 110 Stat. 857 (Mar. 29,
1996).
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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,
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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, § 383.21
prohibits a person from having more
than one license; § 383.31 requires
notification of convictions for driver
violations; § 383.33 requires notification
of driver’s license suspensions; § 383.35
requires notification of previous
employment; and § 383.37 outlines
employer responsibilities. Section
383.111 requires the passing of a
knowledge test by the driver and
§ 383.113 requires the passing of a skills
test by the driver. Section 383.115
contains the requirement for the double/
triple trailer endorsement; § 383.117
contains the requirement for the P
endorsement; § 383.119 contains the
requirement for the tank vehicle
endorsement; and § 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.
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Proposed Use of Information: State
officials use the information collected
on the license application form
(§ 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
(§ 383.71), and the conviction and
disqualification data posted to the
CDLIS driver record (§ 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 (§ 384.201). State
officials are also required to administer
knowledge and skills tests to CDL driver
applicants (§ 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,
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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.
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.
14 Public
Law 108–447, 118 Stat. 2809, 3268, note
following 5 U.S.C. 552a (Dec. 4, 2014).
15 Public Law 107–347, sec. 208, 116 Stat. 2899,
2921 (Dec. 17, 2002).
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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 Stateissued 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.
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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
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.
2. Amend § 383.5 by:
a. Adding, in alphabetical order,
definitions for third-party knowledge
examiner, third-party knowledge tester,
and third-party skills tester;
■ b. Adding a hyphen between the
words ‘‘third’’ and ‘‘party’’ in the
definition of third party skills test
examiner; and
■ c. Removing the definition of third
party tester.
The additions read as follows:
■
■
§ 383.5
Definitions.
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*
*
*
*
*
Third-party knowledge examiner
means a person employed by a thirdparty 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.
*
*
*
*
*
■ 3. Amend § 383.25 by:
■ a. Revising paragraph (a)(1); and
■ b. Removing paragraph (e).
The revision reads as follows:
§ 383.25
(CLP).
Commercial learner’s permit
(a) * * *
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(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.
*
*
*
*
*
■ 4. Revise § 383.75 to read as follows:
§ 383.75
testing.
Third-party skills and knowledge
(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 thirdparty 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 thirdparty tester a CDL skills testing
certificate upon the execution of a thirdparty skills testing agreement.
(4) The State must issue each thirdparty CDL skills test examiner a skills
testing certificate upon successful
completion of a formal skills test
examiner training course prescribed in
§ 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;
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(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 § 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 § 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
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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;
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(3) The State must issue the thirdparty knowledge tester a CDL
knowledge testing certificate upon the
execution of a third-party knowledge
testing agreement;
(4) The State must issue each thirdparty CDL knowledge test examiner a
knowledge testing certificate upon
successful completion of a formal
knowledge test examiner training course
prescribed in § 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 thirdparty 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
§ 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
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7343
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.
■ 5. Revise § 383.79(a)(1) to read as
follows:
§ 383.79 Driving skills testing of out-ofState 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.
*
*
*
*
*
■ 6. Add paragraph (d) to § 383.93 to
read as follows:
§ 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,
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including a school bus, is being
transported from the manufacturer to a
distributor or as part of a driveawaytowaway operation, as defined in
§ 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
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.
■
8. Revise § 384.228 to read as follows:
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§ 384.228
checks.
Examiner training and record
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.
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(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.
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(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 thirdparty test examiners at the time of
hiring. Exception. For current thirdparty 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.
■ 9. Revise § 384.229 to read as follows:
§ 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;
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(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 thirdparty 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 thirdparty 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
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 29
[Docket No. FWS–HQ–NWRS–2022–0106;
FXRS12610900000–212–FF09R20000]
RIN 1018–BG78
National Wildlife Refuge System;
Biological Integrity, Diversity, and
Environmental Health
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; proposed policy
updates.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), propose new
regulations to ensure that the biological
integrity, diversity, and environmental
health (BIDEH) of the National Wildlife
Refuge System (Refuge System) are
maintained, and where appropriate,
restored and enhanced, in accordance
with the National Wildlife Refuge
System Improvement Act of 1997. In
addition, the Service is proposing
updates to the existing BIDEH policy,
which will be available for public
comment concurrently with the
proposed regulations in this docket.
These proposed regulatory and policy
revisions would support conservation
throughout the Refuge System in
response to both longstanding and
contemporary conservation challenges,
including the universal and profound
effects of climate change on refuge
species and ecosystems. Together, these
proposals would uphold BIDEH across
the Refuge System by providing refuge
managers with a consistent approach for
evaluating and implementing
management actions to protect
vulnerable species, restore and connect
habitats, promote natural processes,
sustain vital ecological functions,
increase resilience, and adapt to climate
change.
DATES: We will accept comments on the
proposed rule and proposed revisions to
the Service Manual chapter at 601 FW
3 that are received or postmarked on or
before March 4, 2024.
ADDRESSES:
Document availability: This proposed
rule and the draft Service Manual
chapter 601 FW 3 are available at the
Federal eRulemaking Portal: https://
www.regulations.gov. In the Search box,
enter FWS–HQ–NWRS–2022–0106,
which is the docket number for this
rulemaking. Then, click on the Search
button. To access the Service Manual
chapter, go to the tab for Supporting &
Related Material.
SUMMARY:
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Comment submission: You may
submit comments on this proposed rule
or the proposed revisions to 601 FW 3
by one of the following methods:
• Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. In the Search box,
enter FWS–HQ–NWRS–2022–0106,
which is the docket number for this
rulemaking. Then, click on the Search
button. On the resulting screen, find the
correct document and submit a
comment by clicking on ‘‘Comment.’’
• By hard copy: Submit by U.S. mail
or hand delivery to: Public Comments
Processing, Attn: FWS–HQ–NWRS–
2022–0106; U.S. Fish and Wildlife
Service; 5275 Leesburg Pike, MS: PRB
(JAO/3W); Falls Church, VA 22041–
3803.
We will not accept email or faxes. We
will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see Request
for Comments, below, for more
information).
FOR FURTHER INFORMATION CONTACT:
Katherine Harrigan, (703) 358–2440,
katherine_harrigan@fws.gov.
Individuals in the United States who are
deaf, deafblind, hard of hearing, or have
a speech disability may dial 711 (TTY,
TDD, or TeleBraille) to access
telecommunications relay services.
Individuals outside the United States
should use the relay services offered
within their country to make
international calls to the point-ofcontact in the United States.
In compliance with the Providing
Accountability Through Transparency
Act of 2023, please see docket FWS–
HQ–NWRS–2022–0106 on https://
www.regulations.gov for a document
that summarizes this proposed rule.
SUPPLEMENTARY INFORMATION:
Background
The National Wildlife Refuge System
is the only network of Federal lands and
waters in the United States dedicated to
fish and wildlife conservation and, at
more than 850 million acres, the largest
system of its kind in the world. The
National Wildlife Refuge System
Administration Act of 1966
(Administration Act; 16 U.S.C. 668dd–
668ee), as amended by the National
Wildlife Refuge System Improvement
Act of 1997 (Improvement Act; Pub. L.
105–57), is the primary statutory
authority under which the Secretary of
the Interior, acting through the Service,
administers the Refuge System. The
Alaska National Interest Lands
Conservation Act of 1980 (16 U.S.C.
3111–3126), the Wilderness Act of 1964
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Agencies
[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]
=======================================================================
-----------------------------------------------------------------------
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).
-----------------------------------------------------------------------
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; [email protected]. 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.
---------------------------------------------------------------------------
\1\ See, 87 FR 6045 (Feb. 3, 2022).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\2\ As discussed below in Section V.A., FMCSA withdrew the
third-party knowledge examiner testing waiver on February 3, 2022.
---------------------------------------------------------------------------
(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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\4\ 76 FR 26854, 26861 (May 9, 2011).
---------------------------------------------------------------------------
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.
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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.
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\14\ Public Law 108-447, 118 Stat. 2809, 3268, note following 5
U.S.C. 552a (Dec. 4, 2014).
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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.
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\15\ Public Law 107-347, sec. 208, 116 Stat. 2899, 2921 (Dec.
17, 2002).
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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