No. 37614 (Emergency Rule): Rule R708-21. Third Party Testing

DAR File No.: 37614
Filed: 05/13/2013 11:31:15 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose for this change is to add language to this rule that is required with the passage of S.B. 19 from the 2013 General Legislative Session.

Summary of the rule or change:

This change adds language which requires an applicant for a commercial driver license third party tester or third party examiner license to submit fingerprints and consent to a criminal history background check and FBI check and pay the costs associated with those checks.

Emergency rule reason and justification:

Regular rulemaking procedures would place the agency in violation of federal or state law.

Justification: Section 53-3-207.1 is effective on 05/14/2013.

State statutory or constitutional authorization for this rule:

• Section 53-3-104
• Section 53-3-407.1

Anticipated cost or savings to:

the state budget:

The Bureau of Criminal Investigations will receive an applicant's fees to cover the cost associated with a criminal history background check and an FBI check.

local governments:

There is no fiscal impact to local government because local government does not regulate third-party testers and examiners for a commercial driver license.

small businesses:

Costs associated with criminal history background checks and FBI checks for each applicant for a commercial driver license third party tester or third party examiner will be required. It is not known if the business will pay these costs or require their employees to pay these costs.

persons other than small businesses, businesses, or local governmental entities:

Costs associated with criminal history background checks and FBI checks for each applicant for a commercial driver license third party tester or third party examiner will be required. It is not known if the business will pay these costs or require their employees to pay these costs.

Compliance costs for affected persons:

Costs associated with criminal history background checks and FBI checks for each applicant for a commercial driver license third party tester or third party examiner will be required. It is not known if the business will pay these costs or require their employees to pay these costs.

Comments by the department head on the fiscal impact the rule may have on businesses:

I have reviewed this rule and determined this rule does not have a fiscal impact on businesses.

Lance Davenport, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Public Safety
Driver License
CALVIN L RAMPTON COMPLEX
4501 S 2700 W 3RD FL
SALT LAKE CITY, UT 84119-5595

Direct questions regarding this rule to:

• Jill Laws at the above address, by phone at 801-964-4469, by FAX at 801-964-4482, or by Internet E-mail at [e-mail]

This rule is effective on:

05/14/2013

Authorized by:

Nannette Rolfe, Director

RULE TEXT

R708. Public Safety, Driver License.

R708-21. Third-Party Testing.

R708-21-1. Authority.

This rule is authorized by [Sections]Section 53-3-104.[and 49 Part 383.75 of the Code of Federal Regulations.]

 

R708-21-2. Purpose.

The purpose of this rule is to establish standards and procedures for Third-party Testers and Third-party Examiners who enter into an agreement with the State, to administer skills tests to commercial drivers.

 

R708-21-3. Definitions.

(1) Definitions used in this rule are found in Section 53-3-102.

(2) In addition:

(a) "act involving moral turpitude" means conduct which:

(i) is done knowingly contrary to justice, honesty, or good morals;

(ii) has an element of falsification or fraud; or

(iii) contains an element of harm or injury directed to another person or another property;

(b) "designated representative" means a person identified by an organization, who is an officer, owner, partner or employee of the organization and who is authorized by the organization to comply with Third-party Testing Program requirements[.];

(c) "established business" means any company that has been issued a license by a state, county or city licensing agency to conduct business[.];

(d) "probation" means action taken by the department, which includes a period of close supervision as determined by the division[.];

(e) "revocation" means the permanent removal of certification of a Third-party Tester or Third-party Examiner[.];

(f) "state" means the State of Utah[.];

(g) "third-party examiner" means a person who has completed, passed and maintains the required training to administer the skills tests to commercial drivers[.]; and

(h) "third-party tester" means a person, an agency of this state, an employer, a private driver training facility or other private institution, or a department, agency or entity of local government with whom the state has an agreement to administer skills tests to commercial drivers.

 

R708-21-4. Requirements for Application, Certification and Renewal of Certification for a Third-party Tester.

(1) Application for an original or renewal Third-party Tester certification shall be made on a form furnished by the division, and shall include:

(a) name of Third-party Tester;

(b) address of Third-party Tester;

(c) number of years Third-party Tester has been in business;

(d) names of all Third-party Examiners;

(e) addresses of all testing sites;

(f) name of the designated representative; and

(g) copy of business license.

(2) Upon receipt of the application, fingerprint card and required fees, the division shall schedule an appointment with the Third-party Tester to determine eligibility, establish test routes, schedule instruction and provide forms.

(3) A written agreement shall be made with the state to conduct skills test as required by Federal regulations established in 49 CFR [Part] 383.75. The agreement shall contain the following provisions:

(a) allow the Federal Motor Carrier Safety Administration (FMCSA) or its representative, and/or the division to conduct random examinations, inspections and audits without prior notice;

(b) allow the division to conduct on-site inspections annually or when deemed necessary by the division;

(c) require all Third-party Examiners receive training approved by the division which requires them to conduct skills tests in compliance with the FMCSA minimum standards; and

(d) require at least one of the following on an annual basis:

(i) a division representative take the tests actually administered by the Third-party Examiner as if the division representative were a test applicant;[ or]

(ii) the division test a sample of drivers who were examined by the Third-party Examiner to compare pass/fail results; or

(iii) the division co-score along with the Third-party Examiner during CDL skills test to compare pass/fail.

(4) The Third-Party tester shall:

(a) have an established business for a minimum of two years,[;]or employ a Third-party Examiner that has been certified the previous two years under R708-21-5;

[(b) employ a Third-party Examiner that has been certified the previous two years under R708-21-5 of this rule;

] ([c]b) maintain a current business license required by the municipality or county;

([d]c) have at least one qualified and approved Third-party Examiner;

([e]d) require that Third-party Examiners:

(i) administer at least ten CDL skills tests in the year preceding the renewal of the Third-party Tester application; or

(ii) be observed by the division representative administering at least one CDL skills test in the proper manner;

([f]e) name a designated representative(s) that will sign signature cards for new employees and withdraw the authority of employees that are no longer certified to test for the company;

([g]f) not be permitted to engage the service of an employee of the division as an examiner, agent, or employee[.]; and

(g) submit a fingerprint card and a check or money order to the division, made payable to the Utah Bureau of Criminal Identification, to cover the cost associated with a criminal history background check and FBI check.

(5) Certification shall be valid for a period of [twelve]12 months. No later than one month prior to expiration of certification, the Third-party Tester shall submit a renewal application to the division.

 

R708-21-5. Requirements for Application, Certification and Renewal of Certification for a Third-party Examiner.

(1) An application for an original or renewal Third-party Examiner certification shall be made on a form furnished by the division, and shall include the following:

(a) name of Third-party Tester;

(b) address of Third-party Tester;

(c) name of Third-party Examiner;

(d) residential address of Third-party Examiner;

(e) telephone number and email address of Third-party Examiner[:]; and

(f) signature and date of Third-party Examiner.

(2) All Third-party Examiners shall be sponsored by a Third-party Tester, who shall be responsible for all tests administered by the Third-party Examiner.

(3) An applicant for Third-party Examiner shall comply with the following requirements:

(a) have and maintain a valid driver's license with no suspensions, revocations, cancellations or disqualifications within one year prior to application;

(b) have at least three years driving experience;

(c) submit [to the division ]a fingerprint card and a check or money order to the division, made payable to the Utah Bureau of Criminal Identification, to cover the cost associated with a criminal history background check and FBI check;

(d) have the physical strength and agility to physically enter and exit commercial vehicles unassisted;

(e) complete the approved training by the division and pass the final examination with a minimum score of 80%. Third-party Examiners need to be aware that any training they receive from private or other organizations may require a training fee;

(f) schedule a time, within one year of training with the division representative, to demonstrate his/her ability to perform the skills tests according to [49 C.F.R. 383 subpart (g) and (h)]49 CFR 383.75 (g) and 49 CFR 383.75 (h), in an actual test setting. Upon approval from the division representative, the examiner may begin testing. Failure to comply with this portion of this certification process will result in the examiner having to complete the approved training as described in R708-21-5 (3)(e); and

(g) upon completion of training, Third-party Examiners shall be issued a certificate of completion. The division will file and maintain a copy of the certificate of completion in the Third-party Tester file.

(4) All authorized Third-party Examiners shall be required to sign an agreement verifying that they have read and understand the required rules and training materials.

(5) Upon application for recertification a Third-party Examiner shall meet the requirements outlined in [subsections 1 through 4]Subsections R708-21-5(1) through R708-21-5(4) in addition to the following:

(a) administer at least ten CDL skills tests to different applicants in the year preceding the renewal of the Third-party Tester application; or

(b) be observed by the division representative administering at least one CDL skills tests in accordance with [49 C.F.R. 383 subpart (g) and (h)]49 CRF 383.75(g) and 49 CFR 383.75(h).

 

R708-21-6. Requirements for Designated Representative.

(1) A designated representative is responsible for overseeing the Third-party Tester and Examiners. The designated representative shall be the liaison between division representatives and Third-party Examiners.

(2) A designated representative shall:

(a) maintain personnel files for all Third-party Examiners assigned to their company;

(b) notify the division in writing within 10 calendar days of any change to a Third-party Examiner driving status;

(c) maintain and update all Third-party Examiners signature cards;

(d) notify the division in writing within 30 calendar days of a change to a Third-party Tester or Examiners address;

(e) make application for renewal of a Third-party Tester certificate at least one month prior to expiration date;

(f) maintain security of all CDL score sheets and personal data noted on the CDL score sheets;

(g) ensure all CDL test score sheets have been destroyed after 3 years.

 

R708-21-7. Skills Test Administration.

(1) Skills tests shall be conducted strictly in accordance with the provisions of these requirements and with current test instructions provided by the division [and part 49 C.F.R. 383]49 CFR 383.75, and the AAMVA training manual.

(a) Such instructions include information regarding:

(i) skills test content;

(ii) route selection/revision;

(iii) test forms;

(iv) examiner procedures; and

(v) administrative procedures.

(2) Tests shall be conducted:

(a) on test routes approved by the division;

(b) in a vehicle that is representative of the class and type of vehicle for which the CDL applicant seeks to be licensed, and for which the Third-party Examiner is qualified to test; and

(c) by using division approved content, forms and scoring procedures.

(3) Third-party Examiners shall test and certify only those CDL applicants who hold a valid Commercial Driver Instruction Permit and shall ensure adherence to the class, endorsements, restrictions and expiration dates listed on the permit.

(4) All Third-party Testers and Third-party Examiners shall schedule the skills tests on the division's web application at least 48 hours prior to administering the CDL Skills test.

 

R708-21-8. Processing CDL Skills Test.

(1) The division shall provide training and allow access to the divisions web service application used for scheduling skills tests and recording the results of the tests to:

(a) a certified Third-party Examiner; or

(b) a representative of the Third-party Tester that has met the requirements of R708-21-5(3)(c) [upon approval by the division]and the division has reviewed and approved the results of the fingerprint and FBI background checks.

(2) The division shall supply an approved CDL skills test score sheet to authorized Third-party Testers for use when administering skills tests. The score sheet shall be filled out correctly and signed by both the Third-party Examiner and driver[:],

(a) Third-party Testers shall maintain all skill test score sheets for a period of three years after which they must be immediately destroyed by means of incineration or shred.

(b) Third-party Testers are responsible to ensure the security of all CDL score sheets and personal data collected on the CDL score sheets and the applicant.

(3) The score sheet shall include the following information:

(a) applicant's name and phone number;

(b) applicant's Utah Driver License number;

(c) description of the vehicle in which test was taken, including optional equipment;

(d) Gross Vehicle Weight Rating (GVWR);

(e) vehicle and trailer license plate numbers;

(f) class of license, restriction and/or endorsement tested for;

(g) start time, end time, and date test was administered;

(h) authorized Third-party Examiner name and assigned number;

(i) applicant's signature and date; and

(j) authorized Third-party Examiner's signature and date.

(4) The Third-party Examiner shall document all skills test results on the score sheet.

(5) The Third-party Examiner shall provide the completed skills test score sheet to the driver in a sealed envelope.

(6) The Third-party Examiner or Third-party Tester shall not withhold a passed skills test score sheet [to]from an applicant that has successfully met the testing requirements.

(7) The Third-party Examiner shall enter the skills test results on the driver's record through the division web application within 48 hours of the test.

(8) Test results are only acceptable if testing was completed within the previous [6]six months.

(9) The division shall accept the score sheet as proof the driver has completed one or more skills tests.

(10) As a result of the driver not completing or passing the skills test within [6]six months of the original failed or incomplete test, the Third-party Examiner shall send the score sheet directly to the division representative.

 

R708-21-9. Inspection and Audit Process.

(1) During inspections the representative(s) designated by the Third-party Tester shall cooperate with the [D]division or [F]federal representative with respect to on-site inspections.

(2) On-site inspections shall be conducted to verify compliance with FMCSA guidelines and [this rule]R708-21.

(3) The Third-party Tester shall maintain accurate driver testing records and must be able to furnish them upon request.

(4) Check rides may be made by any designated division representative to verify compliance with the [S]state and [F]federal minimum testing standards and may consist of:

(a) [the]a division employee taking the skills test as administered by the Third-party Tester as if such employee was a test applicant;

(b) the division administering the skills tests to a sample of drivers who were previously examined by the Third-party Testers to determine if the check ride results are consistent with the Third-party Tester results; and

(c) the division co-score along with the Third-party Examiner during CDL skills test to compare pass/fail.

(5) A division representative shall prepare a written report of all inspections, check rides and audits. A copy of these reports shall be maintained by the division for ten years.

(6) The division shall send a renewal letter to the Third-party Tester indicating any problems, concerns or violations found during the audit with an action plan detailing how to correct the items identified.

 

R708-21-10. Notification of Accident.

If any Third-party Examiner is involved in an accident during the course of administering a skills test, the Examiner shall notify the division in writing within five days of the accident. The Third-party Examiner shall submit to the division a copy of the investigating law enforcement officer's accident report as soon as it is available.

 

R708-21-11. Advertising.

(1) No advertisement shall indicate in any way that a program can issue or guarantee the issuance of a CDL, or imply that the program can in any way influence the division in the issuance of a CDL, or imply that preferential or advantageous treatment from the division can be obtained.

(2) No Third-party Tester or Third-party Examiner shall solicit business directly or indirectly, or display or distribute any advertising material within 1 ,500 feet of a building in which driver licenses are issued to the public.

(3) No Third-party Tester or Third-party Examiner shall use any [D]department or [D]division logos, letterhead, or license recreations as part of their advertising.

 

R708-21-12. Grounds for Revocation, Probation or Denial to Issue or Renew Third-party Tester or Third-party Examiner Certification.

(1) A Third-party Tester or Third-party Examiner may be revoked, denied or placed on probation for any of the following reasons:

(a) [F]failure to comply with any of the provisions of [49 Part 383 of the Code of Federal Regulations]49 CFR 383.75;

(b) [F]failure to comply with any of the provisions of [Title]Section 53-3-407[ UCA];

(c) [F]failure to comply with any of the provisions of [this rule]R708-21;

(d) [F]falsification of any records or other required information relating to the Third-party Tester program;

(e) [C]commission of any act that compromises the integrity of the Third-party Tester Program Commercial Motor Vehicle Safety Act, 1986;

(f) failure to permit and cooperate with the [D]division or [F]federal representative to inspect the testing routes, testing sites or score sheets issued to the Third-party Tester; and

(g) [C]conviction of any crime involving dishonesty, deception, [or] theft, or an act involving moral turpitude by a Third-party Tester or Third-party Examiner[;].

(2) In determining whether revocation, denial or probation of a certification is appropriate, the division shall consider the third-party tester or third-party examiners involvement and severity of the violation(s).

(3) If a Third-party Examiner certificate is revoked under the emergency provisions of [UAPA, s]Section 63G-4-502, and the Third-party Tester certificate is valid, the Third-party Tester may continue conducting CDL driving skills tests provided:

(a) [T]the Third-party Examiner is no longer employed by the Third-party Tester;

(b) [A]a Third-party Examiner with a valid certificate is employed by the Third-party Tester;

(c) [T]testing shall not compromise public safety; and

(d) [T]the Third-party Tester is found to not knowingly have allowed a Third-party Examiner to conduct tests that violate [Utah and or Federal laws or this rule]state or federal laws, or any provision of R708-21.

(4) Following cancellation of the Third-party Tester certification, the Third-party Tester shall promptly return all CDL skills test documents. Documentation includes at a minimum:

(a) CDL Examiner manual;

(b) [score sheets (both used and blank)]used and blank score sheets; and

(c) Third-party Examiner certificates.

 

R708-21-13. Adjudicative Proceedings.

(1) All adjudicative proceedings [set forth in this section] shall be conducted informally as provided in Section 63G-4-202.

(2) The division shall initiate agency action against a Third-party Tester or Third-party Examiner with a notice of agency action in accordance with Section 63G-4-201.

(3)(a) A Third-party Tester or Third-party Examiner who receives a notice of agency action indicating that the division intends to deny, suspend or revoke a permit or a certificate, may request a hearing by filing a written request for hearing with the division within [10]ten calendar days from the date of the notice of agency action.

(b) If a timely request for hearing is filed, the agency action shall be stayed until the division's hearing officer issues a written decision.

(c) A hearing shall be held before the division's hearing officer within 30 calendar days of the day that the division receives the written request for hearing, unless agreed to by the parties.["]

(d) At the hearing, Third-party Tester or Third-party Examiner shall have an opportunity to demonstrate why the division should not take agency action.

(e) The hearing officer shall issue a written decision within [10]ten business days of the hearing in accordance with Section 63G-4-203.

(4) The written decision of the hearing officer shall constitute final agency action and is subject to judicial review in accordance with Section 63G-4-402.

 

KEY: motor vehicle safety, inspections

Date of Enactment or Last Substantive Amendment: May 14, 2013

Notice of Continuation: January 20, 2012

Authorizing, and Implemented or Interpreted Law: 53-3-104; 53-3-407.1; 49 CFR 383.75

 

---