(608) 261-4438
Transportation
The statement of scope was approved by the governor on August 18, 2014.
Rule No.
Relating to
Third party testing.
Rule Type
Permanent.
1. Finding/Nature of Emergency (Emergency Rule Only)
N/A.
2. Detailed Description of the Objective of the Proposed Rule
Wisconsin Admin. Code ch.
Trans 115,
Third Party Testing, is an existing rule that establishes policies and procedures to authorize persons other than employees of the Wisconsin Department of Transportation (“WisDOT") to conduct Commercial Driver's License (“CDL") skills tests, which CDL applicants are required to take. Wisconsin Admin. Code ch.
Trans 115 interprets the provisions of 49 C.F.R parts 383,
Commercial Driver's License Standards; Requirements and Penalties, and 384,
State Compliance with Commercial Driver's License Program, and Wis. Stat. ch 343,
Operator's Licenses, relating to CDL skills tests conducted by Third Party Testers and Examiners. Wisconsin Admin. Code ch.
Trans 115 was last amended in 1996. Since that time, changes to federal regulations implementing the Commercial Motor Vehicle Safety Act of 1986 (“CMVSA") have affected: (1) how Third Party Testers conduct skills tests; and (2) how WisDOT administers the Third Party testing program. These changes require WisDOT's compliance by July 2015. The anticipated amendments to Wis. Admin. Code ch.
Trans 115 reflect these changes and will ensure WisDOT's compliance with federal law. The anticipated amendments to Wis. Admin. Code ch.
Trans 115 will also ensure WisDOT's compliance with all changes in state law and improvements to business processes that have occurred since Wis. Admin. Code ch.
Trans 115 was last updated. The anticipated modifications will not change the objective of the rule.
3. Description of Existing Policies Relevant to the Rule and of New Policies Proposed to be Included in the Rule and an Analysis of Policy Alternatives
a. Existing state statutes and WisDOT policies that need to be updated in the rule:
Wisconsin Stat. s.
343.16 (1) (b) authorizes WisDOT to contract with Third Party Testers to administer CDL skills tests. Changes to this section will be required to reflect new requirements in
49 C.F.R. parts 383 and
384.
b. New federal policies:
Revisions to
49 C.F.R. parts 383 and
384 add requirements for the issuance of CDLs to Commercial Motor Vehicle operators. Revisions impact: (1) how Third Party Testers and Examiners must conduct CDL skills tests; and (2) clarify WisDOT's administration of the Third Party testing program. The Third Party Testing revisions will be located in Wis. Admin. Code ch.
Trans 115.
c. WisDOT Division of Motor Vehicles (“DMV") policy changes:
Since the last time Wis. Admin. Code ch.
Trans 115 was updated, WisDOT DMV has improved certain business processes:
• WisDOT DMV prohibits Third Party Testers and Examiners from providing CDL applicants the exact copies of Third Party testing forms;
• WisDOT DMV requires removal of Social Security Numbers from Third Party Examiner Identification Certificates;
• WisDOT DMV refuses to train Third Party Examiners who have not submitted fee payment by the governing deadline; and
• WisDOT DMV imposes a governing deadline by which a Third Party Examiner must retake WisDOT sanctioned CDL training prior to the expiration of its certification.
d. Policy alternatives:
The majority of all anticipated modifications to Wis. Admin. Code ch.
Trans 115 are required to comply with federal and state laws. Accordingly, no policy alternatives exist.
4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
WisDOT is authorized to administer and modify Wis. Admin. Code ch.
Trans 115 under various provisions of Wis. Stat. ch.
343 and Wis. Stat s.
85.16 (1).
Wisconsin Stat. s.
85.16 (1) authorizes WisDOT's secretary to make reasonable and uniform orders and rules deemed necessary.
Wisconsin Stat. s.
343.02 requires that WisDOT administer and enforce the issuance of operator licenses and state identification cards and authorizes WisDOT to promulgate rules WisDOT's secretary considers necessary.
Wisconsin Stat. s.
343.03 (1) (a) and
(b) requires that WisDOT institute a classified driver license system that meets all federal standards.
Wisconsin Stat. s.
343.16 (1) (a) requires that WisDOT conduct written and skills tests, and Wis. Stat. s.
343.16 (1) (b) authorizes WisDOT to contract with and use certain Third Party Testers and Examiners in conducting CDL Skills Tests.
5. Estimates of the Amount of Time that State Employees Will Spend to Develop the Rule And of Other Resources Necessary to Develop the Rule
WisDOT currently estimates that modification to Wis. Admin. Code ch.
Trans 115 will require approximately 500 hours of WisDOT staff time. Other resources necessary to develop the rule include: consultation and discussions with the general public, other impacted state and federal agencies, the Wisconsin Legislature, and the Governor's Office.
6. List with Description of all Entities that may be Affected by the Proposed Rule
The following entities may be affected by the proposed rule:
• All persons who obtain CDL skills testing through a Third Party Tester;
• All Third Party Testers and Examiners that conduct CDL skills tests;
• Any state agency that employs Commercial Motor Vehicle operators or that conducts training or testing of applicants for CDL's.
• The United States Department of Transportation's Federal Motor Carrier Safety Administration, to the extent that it is authorized to review and determine whether WisDOT has complied with the CMVSA.
7. Summary and Preliminary Comparison of any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Rule
Of import,
49 C.F.R. parts 383 and
384 establish minimum standards for the required tests, testing, standards, and monitoring of issuance of CDLs in accordance with the CMVSA. Unlike the applicable provisions of
49 C.F.R. parts 383 and
384, Wis. Admin. Code ch.
Trans 115 does not currently:
• Assign the Federal Motor Carrier Safety Administration (“FMCSA") as the federal agency responsible for enforcing the FMCSRs;
• Identify information concerning who is eligible to conduct CDL tests for a driving school;
• Identify the conditions for which a Third Party Tester is granted testing authority;
• Identify the method that Third Party Testers must use to report CDL skills test results to the states;
• Identify the number of tests a Third Party Tester must administer each year to maintain their testing authority;
• Provide a timeframe in which a prospective Third Party Examiner must be free of felony convictions from the it applies for Third Party Examining authority;
• Identify the number of tests the Third Party Examiner must conduct each year to maintain their Third Party Examining authority;
• Identify the frequency with which WisDOT is required to conduct an onsite audit or inspection of a Third Party Tester;
•
Identify the method WisDOT must use to determine the effectiveness of a Third Party testing program;
•
Identify the type and amount of insurance a Third Party Tester must maintain to retain Third Party Tester authority;
8. Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to Have a Significant Economic Impact on Small Businesses)
At this time, WisDOT anticipates that updates to the existing Wis. Admin. Code ch.
Trans 115, which are expected to include modifications that reflect existing state and federal law, will have an indeterminate economic impact. Until the rule is actually drafted, determining the economic impact of the rule is difficult.
9. Contact Person
Jim Miller
Wisconsin Department of Transportation
Division of Motor Vehicles, Bureau of Field Services
(608) 266-2743
