STATE OF WISCONSIN
DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY
PROPOSED RULEMAKING ORDER
The State of Wisconsin Department of Transportation Proposes an Order to Repeal s. Trans 115.01 (Note); to Repeal and Recreate ss. Trans 115.02 (8); to Repeal s. Trans 115.02 (12) (Note); to Amend ss. Trans 115.04 (1) (a) 2., (3)(c), (g), (i), (k); to Create s. Trans 115.04 (3) (n); to Amend ss. Trans 115.05 (1) (g), (2) (a), (e), (5) (b), (c), 115.07 (1), (2), (3), (4) (intro.); to Create s. Trans 115.07 (4) (f) 3.; to Amend s. Trans 115.09 (title); and to Create s. Trans 115.09 (4) Relating to Third Party Testing and Affecting Small Businesses INTRODUCTION
The Statement of Scope for this rulemaking, SS 090-14, was approved by the Governor of the State of Wisconsin Scott Walker on August 18, 2014, published in Register No. 705A on September 14, 2014, and approved by the Secretary of the State of Wisconsin Department of Transportation (“DOT”) Mark Gottlieb, P.E., on October 10, 2014. DOT proposes an Order to repeal s. Trans 115.01 (Note); to repeal and recreate ss. Trans 115.02 (8); to repeal s. Trans 115.02 (12)(Note); to amend ss. Trans 115.04 (1)(a)2., (3)(c), (g), (i), (k); to create s. Trans 115.04 (3)(n); to amend ss. Trans 115.05 (1)(g), (2)(a), (e), (5)(b), (c), 115.07 (1), (2), (3), (4)(intro.); to create s. Trans 115.07 (4)(f)3.; to amend s. Trans 115.09(title); and to create s. Trans 115.09 (4) relating to third party testing. ANALYSIS
Explanation of agency authority: Under s. 85.16 (1), Stats., DOT’s Secretary is authorized to make reasonable and uniform orders and rules deemed necessary. Under s. 343.02, Stats., DOT is required to administer and enforce the issuance of operator licenses and state identification cards and may promulgate rules DOT’s Secretary considers necessary to do so. Under s. 343.03 (1) (a) and (b), DOT is required to institute a classified driver license system that meets all federal standards. Under s. 343.16 (1) (a), DOT is required to conduct written and skills tests, and s. 343.16 (1) (b) authorizes DOT to contract with and use certain third party testers and examiners in conducting Commercial Driver’s License (“CDL”) skills tests. Brief summary of the proposed rule: DOT’s policies and procedures authorizing persons other than DOT employees to conduct CDL skills tests are contained in ch. Trans 115, Admin. Code. CDL applicants are required to take these CDL skills tests. Of import, ch. Trans 115, Admin. Code implements federal regulations contained in 49 C.F.R. part 383, Commercial Driver’s License Standards; Requirements and Penalties, and 49 C.F.R. part 384, State Compliance with Commercial Driver’s License Program. These federal regulations, which implement the Commercial Motor Vehicle Safety Act of 1986 (“CMVSA”), were recently amended. These amendments affect both how third party testers conduct skills tests and how DOT administers the third party testing program. DOT must comply with these amendments by July 2015, and amending ch. Trans 115, Admin. Code is the most effective way to comply. Additional amendment to ch. Trans 115, Admin. Code is necessary to ensure codification of compliance with changes to state law and improvements to business process since the last time DOT update ch. Trans 115, Admin. Code. The objective of the rule will not change. The proposed changes to ch. Trans 115, Admin. Code will accomplish the following: • Assign the Federal Motor Carrier Safety Administration (“FMCSA”) as the federal agency responsible for enforcing the Federal Motor Carrier Safety Regulations. In turn, establish that new applicants for third party tester authority must allow the FMCSA to inspect and audit its operations, facilities and records as they relate to its third party testing program for the purpose of determining whether the applicant is qualified to be granted authority and establish that third party testers must allow the FMCSA to conduct scheduled and unscheduled examinations, inspections, and audits.
• In accordance with state and federal law, prohibit third party testers that are driver training schools from administering any test or examination of a person who has received training from that third party tester or from any person who controls, is controlled by, or is under the common control of the third party tester. This entails including a provision to this effect and removing an outdated statement that private driver training schools are prohibited from becoming third party testers.
• Codify the use of electronic scheduling of CDL skills tests and the requirement that no skills test be conducted prior to two calendar days from when it was scheduled.
• Codify the use of electronic reporting of successful CDL skills test results; provide that, in addition to first class mail, unsuccessful CDL skills test results may be submitted by other means as directed by DOT; provide that, in addition to CDL skills test score sheet form provided by DOT, unsuccessful skills test results may be submitted using other means as directed by DOT; and require that all CDL skills test results must be submitted to DOT within 48 hours of the grading of the CDL skills test.
• Establish that a third party tester must conduct a minimum of 10 CDL skills tests per year and establish that a third party examiner must conduct a minimum of 10 CDL skills tests per year for different individuals.
• Require third party examiners to submit to an initial nationwide criminal background check by means authorized by DOT and disqualify any third party examiner who has been convicted of a felony within the past 10 years or convicted of any crime involving fraudulent activity prior to the application.
• Establish that DOT must conduct on-site inspections and audits of third party testers at least once every two years.
• Provide that DOT may determine the effectiveness of third party testers by having DOT employees co-score a CDL skills test along with a third party examiner to compare results.
• Establish that a private or non-governmental third party tester must maintain a bond in an amount sufficient to pay for retesting of drivers in the event the third party tester or one or more of its examiners is involved in fraudulent activities related to conducting the CDL skills tests for CDL applicants.
• Establish that third party examiner applicants attending CDL skills test examiner training must submit course fees and satisfy all fingerprinting requirements prior to the training.
• Remove the requirement that a third party examiner’s social security number appear on the third party examiner’s identification certificate.
• Clarify that the requirement that a third party examiner must take part in all DOT required training includes retaking full, partial, or specialized CDL skills test examiner training when warranted as a result of performance or compliance issues and establish that a person who has not had a valid certificate in the preceding 2 years shall retake the full CDL skills test examiner training as sanctioned by DOT.
• Establish that a third party tester’s primary place of business, occupied structures, and records are locked and secured when such facilities are not in use.
Summary of, and comparison with, existing or proposed federal statutes and regulations intended to address the activities to be regulated by the proposed rule: There are a number of recently amended federal regulations contained in 49 C.F.R. part 383, Commercial Driver’s License Standards; Requirements and Penalties, and 49 C.F.R. part 384, State Compliance with Commercial Driver’s License Program which implement the CMVSA and address the activities the proposed rule intends to regulate: • In relevant part, 49 C.F.R. s. 383.75(a)(8)(i) provides that a State may authorize a third party tester to administer the skills tests specified in subparts G and H of 49 C.F.R. part 383 if the state has an agreement with the third party containing, among other things, a provision allowing the FMCSA or its representatives, and the State to conduct random examinations, inspections, and audits of its records, facilities, and operations without prior notice. Similarly, 49 C.F.R. s. 384.229 requires a State to conduct various auditing, monitoring, and tracking functions of third party testers and examiners. • In relevant part, 49 C.F.R. s. 383.75(a)(7) provides that a skills tester that is also a driver training school is prohibited from administering a skills test to an applicant who was trained by the training school, subject to a limited exception. In relevant part, 49 C.F.R. s. 383.75(a)(8)(viii) provides that a State may authorize a third party tester to administer the skills tests specified in subparts G and H of 49 C.F.R. part 383 if the state has an agreement with the third party containing, among other things, a provision requiring the third party tester to submit a schedule of CDL skills test appointments to the State no later than two business days prior to each test.
