ARC 6519C

ARC 6519C

TRANSPORTATION DEPARTMENT[761]

Notice of Intended Action

Proposing rule making related to third-party commercial driver's license testers

and providing an opportunity for public comment

The Transportation Department hereby proposes to amend Chapter 607, "Commercial Driver Licensing," Iowa Administrative Code.

Legal Authority for Rule Making

This rule making is proposed under the authority provided in Iowa Code sections 307.12 and 321.187.

State or Federal Law Implemented

This rule making implements, in whole or in part, Iowa Code section 321.187 as amended by 2022 Iowa Acts, Senate File 2337.

Purpose and Summary

This proposed rule making updates Chapter 607 to conform the rules with 2022 Iowa Acts, Senate File 2337. This legislation amends Iowa Code section 321.187 to authorize public transit systems and regional public transit systems to be third-party commercial driver's license (CDL) testers, and to allow all third-party testers to administer the CDL knowledge test in addition to the CDL skills test. Under this legislation, any CDL knowledge or skills test offered by a third party must be the same as the test administered by the Department.

The proposed amendments provide that public and regional transit systems may be certified by the Department to be third-party CDL testers and allow all third-party testers to be certified by the Department to administer CDL knowledge tests in addition to CDL skills tests. The proposed amendments adopt definitions for "knowledge test," "public transit system" and "regional transit system" and amend a few existing definitions to align with the definitions amended within Iowa Code section 321.187. To implement and align the existing rules with the expanded third-party testing functions, the proposed amendments update references to skills testing to include knowledge testing and update references to the Federal Motor Carrier Safety Regulations in 49 CFR Parts 383 and 384.

This proposed rule making clarifies that the existing requirement to maintain a $50,000 bond is applicable only to a third-party tester that is not a government agency in accordance with federal regulations.

The proposed amendments add a new paragraph concerning the revocation of a certificate of authority issued by the Department to a third-party knowledge test examiner if the examiner does not meet certain minimum federal requirements relating to examiner qualifications, training and protocols for suspected fraudulent activity. The proposed amendments also require the Department to revoke the certificate of authority for a third-party test examiner to administer knowledge or skills tests if the examiner fraudulently administers either type of test.

Fiscal Impact

This rule making has no fiscal impact to the State of Iowa beyond any impact anticipated by the legislation.

Jobs Impact

After analysis and review of this rule making, no impact on jobs has been found.

Waivers

Any person who believes that the application of the discretionary provisions of this rule making would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to 761—Chapter 11.

Public Comment

Any interested person may submit written comments concerning this proposed rule making or may submit a written request to make an oral presentation at a public hearing. Written comments or requests to present oral comments in response to this rule making must be received by the Department no later than 4:30 p.m.on October 11, 2022. Comments should be directed to:

Public Hearing

If requested, a public hearing to hear oral presentations will be held on October 13, 2022, via conference call at 10 a.m. Persons who wish to participate in the conference call should contact Tracy George before 4:30 p.m.on October 11, 2022, to facilitate an orderly hearing. A conference call number will be provided to participants prior to the hearing.

Persons who wish to make oral comments at the public hearing may be asked to state their names for the record and to confine their remarks to the subject of this proposed rule making.

Any persons who intend to attend the public hearing and have special requirements, such as those related to hearing or mobility impairments, should contact Tracy George and advise of specific needs.

The public hearing will be canceled without further notice if no oral presentation is requested.

Review by Administrative Rules Review Committee

The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee's meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).

The following rule-making actions are proposed:

Item 1. Amend rule 761—607.30(321) as follows:

761—607.30(321) Third-party testing.

607.30(1) Purpose and definitions. The knowledge tests required by rule 761—607.27(321) and the skills test required by rule 761—607.28(321) may be administered by third-party testers and third-party skills test examiners approved and certified by the department. For the purpose of administering third-party skills testing and this rule, the following definitions shall apply:

"Community college" means an Iowa community college established under Iowa Code chapter 260C.

"Iowa-based motor carrier" means a motor carrier or its subsidiary that has its principal place of business in the state of Iowa and operates a permanent commercial driver training facility in the state of Iowa.

"Iowa nonprofit corporation" means a nonprofit corporation that serves as a trade association for Iowa-based motor carriers.

"Knowledge test" means the knowledge tests required by rule 761—607.27(321).

"Motor carrier" means the same as defined in 49 CFR Section 390.5.

"Permanent commercial driver training facility" means a facility dedicated to a program of commercial driving instruction that is offered to employees or potential employees of the motor carrier as incident to the motor carrier's commercial operations, that requires at least 40 hours of instruction, and that includes fixed and permanent structures and facilities for the off-road portions of commercial driving instruction, including classroom, pretrip inspection, and basic vehicle control skills. A permanent commercial driver training facility must include a fixed and paved or otherwise hard-surfaced area for basic vehicle control skills testing that is permanently marked and capable of inspection and measurement by the department.

"Public transit system" means the same as defined in Iowa Code section 324A.1.

"Regional transit system" means the same as defined in Iowa Code section 324A.1.

"Skills test" means the skills test required by rule 761—607.28(321).

"Subsidiary" means a company that is partly or wholly owned by a motor carrier that holds a controlling interest in the subsidiary company.

"Third-party skills test examiner" means the same as defined in 49 CFR Section 383.5 Iowa Code section 321.187 as amended by 2022 Iowa Acts, Senate File 2337.

"Third-party tester" means the same as defined in 49 CFR Section 383.5 Iowa Code section 321.187 as amended by 2022 Iowa Acts, Senate File 2337.

607.30(2) Certification of third-party testers.

a. The department may certify as a third-party tester a community college, Iowa-based motor carrier , or Iowa nonprofit corporation , public transit system or regional transit system to administer knowledge tests and skills tests. A community college, Iowa-based motor carrier , or Iowa nonprofit corporation , public transit system or regional transit system that seeks certification as a third-party tester shall contact the motor vehicle division and schedule a review of the proposed testing program, which shall include the proposed testing courses and facilities, information sufficient to identify all proposed third-party skills test examiners, and any other information necessary to demonstrate compliance with 49 CFR Section 383.75 Parts 383 and 384 applicable to knowledge and skills testing.

b. No community college, Iowa-based motor carrier , or Iowa nonprofit corporation , public transit system or regional transit system shall be certified to conduct third-party testing unless and until the community college, Iowa-based motor carrier , or Iowa nonprofit corporation , public transit system or regional transit system enters an agreement with the department that meets the requirements of 49 CFR Section 383.75 and demonstrates sufficient ability to conduct knowledge and skills tests in a manner that consistently meets the requirements of 49 CFR Section 383.75 Parts 383 and 384 applicable to knowledge and skills testing.

c. The department shall issue a certified third-party tester a certificate of authority that identifies the classes and types of vehicles for which knowledge and skills tests may be administered. The certificate shall be valid for the duration of the agreement executed pursuant to paragraph 607.30(2)"b," unless revoked by the department for engaging in fraudulent activities related to conducting knowledge and skills tests or failing to comply with the requirements, qualifications, and standards of this chapter, the agreement, or 49 CFR Section 383.75 Parts 383 and 384 applicable to knowledge and skills testing.

607.30(3) Certification of third-party skills test examiners.

a. A certified third-party tester shall not employ or otherwise use as a third-party skills test examiner a person who has not been approved and certified by the department to administer knowledge or skills tests. Each certified third-party tester shall submit for approval the names of all proposed third-party skills test examiners to the department. The department shall not approve as a third-party skills test examiner a person who does not meet the requirements, qualifications , and standards of 49 CFR Sections 383.75 and 384.228 Parts 383 and 384 applicable to knowledge and skills testing, including but not limited to all required training and examination and a nationwide criminal background check. The criteria for passing the nationwide criminal background check shall include no felony convictions within the last ten years and no convictions involving fraudulent activities.

b. The department shall issue a certificate of authority for each person certified as a third-party skills test examiner that identifies the certified third-party tester for which the person will administer knowledge or skills tests and the classes and types of vehicles for which the person may administer knowledge or skills tests. The certificate shall be valid for a period of four years from the date of issuance of the certificate.

c. The department shall revoke the certificate of authority for a third-party test examiner to administer skills tests if the person holding the certificate does not administer skills tests to at least ten different applicants per calendar year; does not successfully complete the refresher training required by 49 CFR Section 384.228 every four years; is involved in fraudulent activities related to conducting knowledge or skills tests; or otherwise fails to comply with and meet the requirements, qualifications and standards of this chapter or 49 CFR Sections 383.75 and 384.228 Parts 383 and 384 applicable to skills testing. Notwithstanding anything in this paragraph to the contrary, as provided in 49 CFR Section 383.75, if the person does not administer skills tests to at least ten different applicants per calendar year, the certificate will not be revoked for that reason if the person provides proof of completion of the examiner refresher training in 49 CFR Section 384.228 to the department or successfully completes one skills test under the observation of a department examiner.

d. The department shall revoke the certificate of authority for a third-party test examiner to administer knowledge tests if the person holding the certificate does not successfully complete the refresher training required by 49 CFR Section 384.228 every four years, is involved in fraudulent activities related to conducting knowledge or skills tests or otherwise fails to comply with and meet the requirements, qualifications and standards of this chapter or 49 CFR Parts 383 and 384 applicable to knowledge testing.

d. e.A third-party skills test examiner certified by the department to administer skills tests who is also a skills instructor shall not administer a skills test to an applicant who received skills training from that third-party skills test examiner.

e. f.A third-party skills test examiner may only administer CDL skills tests for the examiner's primary employer, unless authorized by the department to administer CDL skills tests for another county or third-party tester.

607.30(4) Bond. As a condition of certification in accordance with 49 CFR Section 383.75, an Iowa-based motor carrier or Iowa nonprofit corporation a third-party tester that is not a government agency as defined in Iowa Code section 553.3 must maintain a bond in the amount of $50,000 to pay for the retesting of drivers in the event that the third-party tester or one or more of its third-party skills test examiners are involved in fraudulent activities related to conducting skills tests of CDL applicants for a commercial driver's license.

607.30(5) Limitation applicable to Iowa-based motor carriers. An Iowa-based motor carrier certified as a third-party tester may only administer the knowledge or skills test to persons who are enrolled in the Iowa-based motor carrier's commercial driving instruction program and shall not administer knowledge or skills tests to persons who are not enrolled in that program.

607.30(6) Training and refresher training for third-party skills test examiners. All training and refresher training required under this rule shall be provided by the department, in form and content that meet the recommendations of the American Association of Motor Vehicle Administrators' International Third-Party Examiner/Tester Certification Program.

This rule is intended to implement Iowa Code section 321.187as amended by 2022 Iowa Acts, Senate File 2337, section 1.

Item 2. Amend rule 761—607.31(321) as follows:

761—607.31(321) Test results.

607.31(1) to 607.31(3) No change.

607.31(4) Skills Knowledge and skills test results from certified third-party testers. A third-party skills tester certified under rule 761—607.30(321) shall transmit the skills test results of tests administered by the third-party tester through secure electronic means determined by the department. The department may retest any person who has passed a knowledge or skills test administered by a certified third-party tester if it appears to the department that the knowledge or skills test administered by the third-party tester was administered fraudulently or improperly, and as needed to meet the third-party skills test examiner oversight requirements of 49 CFR Section 383.75(a)(5) Parts 383 and 384 applicable to knowledge and skills testing.

607.31(5) No change.

This rule is intended to implement Iowa Code sections 321.180, 321.186, 321.187as amended by 2022 Iowa Acts, Senate File 2337, section 1,321.188 and 321.201.