FMCSA takes on fraud concerns in new CDL testing rule

FMCSA sees carriers saving money with team-driving flexibility. (Photo: Jim Allen/FreightWaves)

WASHINGTON — Trucking regulators have attempted to address the potential for fraud as part of a slate of proposed new CDL testing revisions that safety advocates claim could make the roads less safe.

Some of the revisions included in the notice of proposed rulemaking (NPRM), expected to be published Friday by the Federal Motor Carrier Safety Administration, stem from temporary waivers that FMCSA provided in response to the pandemic. They are also based partly on a petition submitted by the American Trucking Associations in July 2020.

The rulemaking proposes easing current CDL testing regulations by:

• Allowing commercial learner’s permit (CLP) holders who have passed the CDL skills test to operate a truck without having a CDL holder in the passenger seat.
• Expanding a CDL applicants’ ability to take a skills test in a state other than the state in which they live.
• Eliminating the requirement that an applicant wait at least 14 days after being issued a CLP to take the CDL skills test.

FMCSA is also proposing to require third-party knowledge examiners be subject to the same training and certification that currently applies to state knowledge examiners. In addition, third-party knowledge testers would be subject to the auditing requirements that currently apply to third-party skills testers.

The changes related to third-party knowledge examiners and skills testers include anti-fraud protections that FMCSA told lawmakers last year it would need to put in place before issuing the rulemaking.

“The NPRM would add a new requirement that third-party knowledge testing be administered electronically and securely to minimize the opportunity for negligence or fraud that may exist when knowledge tests are administered on paper,” the rulemaking states.

Federal regulations would be changed to require that third-party skills and knowledge testers “initiate and maintain a bond in an amount determined by the state to be sufficient to pay for re-testing drivers in the event that the third-party or one or more of its examiners is involved in fraudulent activities related to conducting skills testing of applicants for a CDL,” according to the proposal.

To administer knowledge tests, third-party knowledge examiners would be required to take a 20-hour training course every three years, FMCSA noted, adding that there is “not a specific skill set required to be a knowledge test examiner, and many different occupations could proctor knowledge test exams.”

Carriers stand to gain?

Current law allows CLP holders to operate a truck only while undergoing behind-the-wheel training and as long as a CDL holder is in the front seat of the vehicle directly supervising the driver trainee.

One of the proposed revisions, however, would allow CLP holders who have passed the CDL skills test to operate a commercial motor vehicle for any reason, and a CDL holder would only need to be present somewhere in the truck without having to supervise the trainee.

“The proposal would result in cost savings for motor carriers and drivers because, after the CLP holder passes the skills test, the CDL holder would be allowed to rest in the sleeper berth, thereby saving on-duty time under the [hours-of-service] rules that would otherwise be lost riding in the passenger seat, overseeing the CLP holder,” FMCSA states.

“The proposed change would therefore allow the CLP holder, with proof of a passing CDL skills test, to operate the vehicle in a wage-earning capacity.”

FMCSA supported this proposed revision by citing regulatory exemptions it has issued and reissued to trucking companies C.R. England and CRST The Transportation Solution Inc., determining that safety was not undermined by the exemptions.

Safety advocates fire back

But exemptions handed out by FMCSA to current regulations that the agency is now looking to make permanent through its rulemaking have been vigorously opposed by truck safety groups.

Referring specifically to CRST’s most recent exemption, the Truck Safety Coalition, an accident victim advocacy group, pointed out that the trucking company provided a “paucity of data” — three months — “with zero comparison data” over the seven years it operated under the exemption and “with zero proof it did not adversely affect safety and plenty of data points that suggest [safety] may have been compromised,” the group told FreightWaves when asked to comment on the NPRM.

“FMCSA’s decision to grant the ATA’s petition for “CDL flexibility” is a stain on the agency responsible for ensuring motor carrier safety,” said TSC Executive Director Zach Cahalan.

“No estimation of negative safety impacts is attempted in its cost-benefit analysis. TSC and its crash victims forcefully believe FMCSA has a mandate to estimate the safety risk and cost of every proposed rulemaking. If FMCSA … is unwilling to take this requirement seriously, meaningful progress to zero fatalities will be unfortunately stuck in neutral.”

Comments on the NPRM are due by April 2.

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