WASHINGTON — Concerns about fairness and fraud are part of a new report to Congress outlining regulators’ rationale for not making permanent a waiver providing flexibility on how truck drivers’ CDL knowledge tests are administered.

Instead, the Federal Motor Carrier Safety Administration is moving ahead on plans for new testing oversight standards in an upcoming proposed rule, the agency told lawmakers.

Issued by FMCSA on April 9, 2020 and extended several times, the waiver allowed certified third-party skills-test instructors to also administer CDL knowledge tests without completing the training required for the state employees who normally conduct knowledge testing.

That flexibility was meant to ease backups resulting from reduced staffing and state driver’s license agency closures caused by the pandemic, which in turn was keeping new drivers from obtaining their commercial learner’s permits and CDLs.

But lawmakers included a provision in the Ocean Shipping Reform Act of 2022 tasking FMCSA with reviewing its discretionary waiver authority and — unless it finds safety concerns — changing the regulations to make the testing waiver permanent.

In its report responding to the review requirement, FMCSA states that it biggest concern with doing so without imposing additional safeguards is “lack of regulatory requirements for states to audit and monitor the operations of third party knowledge examiners to ensure that third parties administer the knowledge tests equitably and without fraud, which requires regulatory oversight by states and, when applicable, FMCSA.”

It also states that examiner training and record-check requirements for state-employed knowledge test examiners should apply to third-party knowledge examiners.

“Should the [waiver] be made permanent now, without additional safeguards, the integrity of the CDL knowledge testing program, and the safety benefit derived from CDL knowledge testing, would be undermined by the absence of state oversight and training and qualification requirements for third party knowledge examiners,” according to FMCSA.

Making the waiver permanent would also cause confusion by implying that third-party knowledge tests can be administered only by certified third-party skills testers, according to FMCSA.

It noted that this would contradict updated guidance issued in 2022 allowing states to use third-party examiners to administer knowledge tests as long as they follow existing standards and requirements.

Instead of amending rules to allow for a permanent waiver, FMCSA said it is drafting a rule that will propose minimum regulatory standards and safeguards for states that opt to allow knowledge testing by third parties.

“The proposed standards … will include states’ examiner training and record check requirements, as well as the states’ required oversight and monitoring of third party testers and examiners,” the report states. The standards would apply to all third-party knowledge examiners, including those who are not already certified as third-party skills test examiners.

“The agency intends, however, to propose specific flexibilities for certified third-party skills examiners who administer the CDL knowledge tests” that were included in the waiver, FMCSA added.

Related articles:

Why do carriers and shippers oppose FMCSA’s emergency waiver changes?

Trucking COVID-related supplies drops 50% under special waiver

FMCSA cancels emergency hours of service waiver

Click for more FreightWaves articles by John Gallagher.

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