[Federal Register Volume 89, Number 23 (Friday, February 2, 2024)]
[Proposed Rules]
[Pages 7327-7345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01710]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 383 and 384

[Docket No. FMCSA-2023-0115]
RIN 2126-AC46


Amendments to the Commercial Driver's License Requirements; 
Increased Flexibility for Testing and for Drivers After Passing the 
Skills Test

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department 
of Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FMCSA proposes to increase flexibility for State Driver 
Licensing Agencies (SDLAs) and commercial driver's license (CDL) 
applicants by expanding applicants' ability to take a CDL skills test 
in a State other than their State of domicile; permitting a commercial 
learner's permit (CLP) holder who has passed the CDL skills test to 
operate a commercial motor vehicle (CMV) on public roads without having 
a qualified CDL holder in the passenger seat; eliminating the 
requirement that an applicant wait at least 14 days to take the CDL 
skills test following initial issuance of the CLP. The NPRM also 
proposes to remove the requirement that CMV drivers must have a 
passenger (P) endorsement to transport CMVs designed to carry 
passengers, including school buses, when the vehicle is being 
transported in a driveaway-towaway operation and the vehicle is not 
carrying any passengers. Additionally, FMCSA proposes to require that 
third-party knowledge examiners be subject to the training, 
certification, and record check standards currently applicable to State 
knowledge examiners and third-party knowledge testers be subject to the 
auditing and monitoring requirements now applicable to third-party 
skills testers. The NPRM responds to petitions for rulemaking from the 
American Trucking Associations (ATA) and the New Hampshire Department 
of Transportation (NHDOT), as discussed below. FMCSA believes these 
proposals would improve the efficiency and convenience of CDL issuance 
and improve highway safety by further ensuring the integrity of third-
party CDL knowledge testing.

DATES: Comments must be received on or before April 2, 2024.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2023-0115 using any of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov/docket/FMCSA-2023-0115/document. Follow the online 
instructions for submitting comments.
     Mail: Dockets Operations, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, 
Washington, DC 20590-0001.
     Hand Delivery or Courier: Dockets Operations, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE, West Building, 
Ground Floor, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays. To be sure someone is 
there to help you, please call (202) 366-9317 or (202) 366-9826 before 
visiting Dockets Operations.
     Fax: (202) 493-2251.

FOR FURTHER INFORMATION CONTACT: Patrick D. Nemons, Director, Office of 
Safety Programs, FMCSA, 1200 New Jersey Avenue SE, Washington, DC 
20590-0001; (202) 385-2400; [email protected]. If you have 
questions on viewing or submitting material to the docket, call Dockets 
Operations at (202) 366-9826.

SUPPLEMENTARY INFORMATION: FMCSA organizes this NPRM as follows:

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
    D. Comments on the Information Collection
II. Executive Summary
    A. Purpose and Summary of the Regulatory Action
    B. Summary of Major Provisions
    C. Costs and Benefits
III. Abbreviations
IV. Legal Basis
V. Background
VI. Discussion of Proposed Rulemaking
VII. Section-by-Section Analysis
VIII. Severability
IX. Regulatory Analyses
    A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563 
(Improving Regulation and Regulatory Review), and DOT Regulatory 
Policies and Procedures
    B. Congressional Review Act
    C. Waiver of Advance Notice of Proposed Rulemaking
    D. Regulatory Flexibility Act (Small Entities)
    E. Assistance for Small Entities
    F. Unfunded Mandates Reform Act of 1995
    G. Paperwork Reduction Act (Collection of Information)
    H. E.O. 13132 (Federalism)
    I. Privacy
    J. E.O. 13175 (Indian Tribal Governments)
    K. National Environmental Policy Act of 1969

I. Public Participation and Request for Comments

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
NPRM (FMCSA-2023-0115), indicate the specific section of this document 
to which your comment applies, and provide a reason for each suggestion 
or recommendation. You may submit your comments and material online or 
by fax, mail, or hand delivery, but please use only one of these means. 
FMCSA recommends that you include your name and a mailing address, an 
email address, or a phone number in the body of your document so FMCSA 
can contact you if there are questions regarding your submission.
    To submit your comment online, go to https://www.regulations.gov/docket/FMCSA-2023-0115/document, click on this NPRM, click ``Comment,'' 
and type your comment into the text box on the following screen.
    If you submit your comments by mail or hand delivery, submit them 
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the facility, please enclose a stamped, 
self-addressed postcard or envelope.
    FMCSA will consider all comments and material received during the 
comment period.
Confidential Business Information (CBI)
    CBI is commercial or financial information that is both customarily 
and actually treated as private by its owner. Under the Freedom of 
Information Act

[[Page 7328]]

(5 United States Code (U.S.C.) 552), CBI is exempt from public 
disclosure. If your comments responsive to the NPRM contain commercial 
or financial information that is customarily treated as private, that 
you actually treat as private, and that is relevant or responsive to 
the NPRM, it is important that you clearly designate the submitted 
comments as CBI. Please mark each page of your submission that 
constitutes CBI as ``PROPIN'' to indicate it contains proprietary 
information. FMCSA will treat such marked submissions as confidential 
under the Freedom of Information Act, and they will not be placed in 
the public docket of the NPRM. Submissions containing CBI should be 
sent to Brian Dahlin, Chief, Regulatory Analysis Division, Office of 
Policy, FMCSA, 1200 New Jersey Avenue SE, Washington DC 20590-0001. Any 
comments FMCSA receives not specifically designated as CBI will be 
placed in the public docket for this rulemaking.

B. Viewing Comments and Documents

    To view any documents mentioned as being available in the docket, 
go to https://www.regulations.gov/docket/FMCSA-2023-0115/document and 
choose the document to review. To view comments, click this NPRM, then 
click ``Browse Comments.'' If you do not have access to the internet, 
you may view the docket online by visiting Dockets Operations on the 
ground floor of the DOT West Building, 1200 New Jersey Avenue SE, 
Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays. To be sure someone is there to help 
you, please call (202) 366-9317 or (202) 366-9826 before visiting 
Dockets Operations.

C. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its regulatory process. DOT posts these 
comments, including any personal information the commenter provides, to 
www.regulations.gov as described in the system of records notice DOT/
ALL 14 (Federal Docket Management System (FDMS)), which can be reviewed 
at https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices. The comments are posted without edit, and are 
searchable by the name of the submitter.

D. Comments on the Information Collection

    Written comments and recommendations for the information collection 
discussed in this NPRM should be sent within 60 days of publication to 
www.reginfo.gov/public/do/PRAMain. Find this information collection by 
clicking the link that reads ``Currently under Review--Open for Public 
Comments'' or by entering Office of Management and Budget (OMB) control 
number 2126-0011 in the search bar and clicking on the last entry to 
reach the ``comment'' button.

II. Executive Summary

A. Purpose and Summary of the Regulatory Action

    The purpose of the NPRM is to enhance the flexibility and 
efficiency of the CDL program by removing certain regulatory 
restrictions to allow applicants to obtain a CDL and be productively 
employed as a CMV driver in less time than it currently takes, without 
compromising safety. The NPRM also proposes measures to ensure the 
consistency and integrity of the administration of CDL knowledge tests 
provided by third-party examiners and facilitate the safe transport of 
empty CMVs designed to transport passengers (passenger CMVs) more 
efficiently. FMCSA believes the proposed changes will further address 
CMV driver shortages, enhance supply chain stability, and provide 
appropriate regulatory relief without impacting safety. In the case of 
CDL knowledge testing administered by third parties, the proposal would 
improve safety by imposing applicable training and certification 
standards for third-party knowledge examiners currently required for 
State-employed knowledge test examiners, and by imposing monitoring 
standards for third-party knowledge testers currently applicable to 
third-party skills testers. The proposed changes are summarized 
immediately below and further explained in Section VI., Discussion of 
the Proposal.

B. Summary of Major Provisions

CDL Skills Testing for Out-of-State Applicants
    Section 383.79(a)(1) currently permits a State to administer the 
CDL skills test to an applicant domiciled in another State, provided 
the individual has obtained training in the State where the skills test 
will be administered. Such test results must be transmitted 
electronically directly from the testing State to the licensing State 
in a direct, efficient, and secure manner. The NPRM proposes to remove 
the requirement that an applicant must have obtained training in the 
testing State in order to take the CDL skills test in that State.
    With the implementation of FMCSA's entry-level driver training 
(ELDT) regulations in February 2022, all States can be assured that the 
out-of-state applicant has completed the required minimum training as 
set forth in 49 CFR part 380, subpart F. The NPRM, by proposing to 
allow States discretion to provide skills testing to out-of-State 
applicants, regardless of the State in which training was obtained, may 
allow applicants to obtain a CDL sooner by scheduling the skills test 
in a State with shorter waiting times. Because all States administering 
the CDL skills test must follow the test standards and requirements set 
forth in 49 CFR part 383, subparts G and H, the proposal would not 
adversely impact safety.
CLP Holders Who Have Passed the CDL Skills Test
    Pursuant to Sec.  383.25(a)(1), CLP holders may operate a CMV on 
public roads and highways only for purposes of BTW training, as long as 
a CDL holder is physically present in the front seat of the vehicle or, 
in the case of a passenger CMV, directly behind or in the first row 
behind the driver and has the CLP holder under observation and direct 
supervision. The NPRM proposes an exception to this provision that 
would allow CLP holders who have passed the CDL skills test to operate 
a CMV for any reason, provided a CDL holder is physically present in 
the CMV, the CLP driver has passed the CDL skills test, and the driver 
possesses documentary evidence from the testing State that they have 
passed the CDL skills test.
    Since the current provision was adopted in 2012, FMCSA implemented 
minimum ELDT requirements, set forth in 49 CFR part 380 subpart F. Once 
the CLP holder has passed the skills test and, thus, demonstrated their 
ability to safely operate a CMV, the current restriction limiting CLP 
holders to CMV operation only for purpose of BTW training would no 
longer be necessary. Because these drivers have already met all the 
requirements for a CDL, but have yet to pick up the CDL document from 
their State of domicile, their safety performance would be the same as 
a newly-credentialed CDL holder. Additionally, having a CDL driver 
accompany the CLP driver who has successfully passed all required CDL 
skills testing and prerequisites, provides some additional supervision 
that is otherwise not required for newly-credentialed CDL drivers in 
physical possession of the CDL document.
CLP Holders Eligible To Take the CDL Skills Test
    As set forth in Sec.  383.25(e), CLP holders are not eligible to 
take the CDL skills test in the first 14 days following

[[Page 7329]]

initial issuance of the CLP. FMCSA proposes to eliminate this 
restriction, which was intended to ensure CLP holders obtained BTW 
training prior to taking the skills test to improve their chances of 
passing the test on the first attempt. The restriction is no longer 
necessary, however, because CLP holders must now complete ELDT (theory 
training and BTW range and road training) before taking the skills test 
for a Class A or Class B CDL or the P or school bus (S) endorsement, in 
accordance with Sec.  383.73(b)(11) and (e)(9).
Third-Party Knowledge Testers and Examiners
    In accordance with regulatory guidance adopted on February 3, 2022, 
States may authorize the use of third-party knowledge examiners as long 
as they adhere to the CDL knowledge test standards and requirements set 
forth in 49 CFR part 383, subparts G and H.\1\ When issuing that 
guidance, FMCSA noted its intention to propose regulatory requirements 
further clarifying the States' use of third-party knowledge examiners. 
This NPRM proposes those requirements, which are intended to ensure the 
integrity of third-party CDL knowledge testing.
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    \1\ See, 87 FR 6045 (Feb. 3, 2022).
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    First, States authorizing third-party knowledge examiners would be 
required to apply to those examiners the training, certification, and 
record check requirements currently applicable to State knowledge 
examiners, as set forth in Sec.  384.228. Third-party skills examiners 
already certified under Sec.  384.228 who also administer the knowledge 
tests would be excepted from duplicative training and record check 
requirements. In addition, States would be required to include third-
party knowledge examiners within the scope of the auditing and 
monitoring provisions set forth in Sec.  384.229, currently applicable 
only to third-party skills examiners. States authorizing third-party 
knowledge testers (i.e., entities that employ third-party knowledge 
examiners) and examiners would be subject to the auditing and 
monitoring requirements for third-party skills testers and examiners, 
set forth in Sec.  383.75, as applicable. Finally, the NPRM proposes to 
add a requirement that third-party knowledge testers or examiners 
administer the knowledge test only by electronic means.
Operation of Empty Passenger CMVs
    The NPRM proposes to except CDL holders operating CMVs designed to 
carry passengers, including school buses, from having a P endorsement 
when the CMV is empty of passengers and the driver is transporting the 
CMV from the manufacturer to the distributor or in a driveaway-towaway 
operation, as defined in Sec.  390.5T. As explained further below, 
FMCSA's current regulations do not require an S endorsement to operate 
an empty school bus. Both the S and P endorsements are intended to 
ensure the driver has the knowledge and skills necessary to safely 
transport passengers and to evacuate the CMV in case of emergency. The 
proposed change would therefore enhance flexibility in transporting 
empty passenger CMVs to distributors, dealers, purchasers, and repair 
facilities without compromising passenger safety.

C. Costs and Benefits

    FMCSA believes these proposals would improve the efficiency and 
convenience of CDL issuance, provide needed flexibility for CLP holders 
who have demonstrated their ability to safely operate a CMV by passing 
the CDL skills test, improve highway safety by ensuring the integrity 
of third-party CDL knowledge testing, and enhance flexibility in the 
transport of empty passenger CMVs from the manufacturer to the 
distributor or in a driveaway-towaway operation. The proposed rule 
could affect States, third-party knowledge examiners, CDL applicants, 
CMV drivers, and motor carriers.
    FMCSA anticipates that entities acting under the proposed 
flexibilities would incur cost savings via improved operational 
efficiency. FMCSA cannot predict the number of States that would 
voluntarily adopt the changes set forth in this proposal, and is 
therefore unable to quantify the increase in efficiency experienced by 
the affected entities. FMCSA estimates that the 10-year cost for 
training and certification of third-party knowledge examiners could 
total approximately $92 million on an undiscounted basis, $81 million 
discounted at 3 percent, and $69 million discounted at 7 percent. 
Annualized costs would total $9.24 million discounted at 3 percent and 
$9.24 million discounted at 7 percent (all in 2021 dollars).

III. Abbreviations

ANPRM Advance Notice of Proposed Rulemaking
ATA American Trucking Associations
BTW Behind-The-Wheel
CBI Confidential Business Information
CDL Commercial Driver's License
CDLIS Commercial Driver's License Information System
CE Categorical Exclusion
CFR Code of Federal Regulations
CLP Commercial Learner Permit
CMV Commercial Motor Vehicle
CMVSA Commercial Motor Vehicle Safety Act of 1986
CRST CRST Expedited
C.R. England C.R. England, Inc.
DOT Department of Transportation
ELDT Entry-Level Driver Training
E.O. Executive Order
FMCSA Federal Motor Carrier Safety Administration
FMCSR Federal Motor Carrier Safety Regulations
FR Federal Register
NAICS North American Industry Classification System
NEPA National Environmental Policy Act of 1969
NHDOT State of New Hampshire Department of Transportation
NPRM Notice of Proposed Rulemaking
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
PIA Privacy Impact Assessment
PII Personally Identifiable Information
Prime New Prime, Inc.
PTA Privacy Threshold Assessment
RFA Regulatory Flexibility Act
The Secretary Secretary of Transportation
SDLA State Driver Licensing Agency
UMRA Unfunded Mandates Reform Act of 1995
U.S.C. United States Code

IV. Legal Basis for the Rulemaking

    The Administrator of FMCSA is delegated authority under 49 CFR 1.87 
to carry out the functions vested in the Secretary of Transportation by 
49 U.S.C. chapters 311, 313, and 315 as they relate to CMV operators, 
programs, and safety. The NPRM is based primarily on the broad 
authority of the Commercial Motor Vehicle Safety Act of 1986 (CMVSA), 
as amended, codified at 49 U.S.C. chapter 313, which established the 
CDL program. The statute required the Secretary of Transportation 
(Secretary), after consultation with the States, to prescribe uniform 
minimum standards ``for testing and ensuring the fitness of an 
individual operating a commercial motor vehicle'' (49 U.S.C. 
31305(a)(1)). The NPRM proposes to amend two of the CDL testing 
requirements and proposes new requirements for the administration of 
the CDL knowledge test by third-party testers and examiner. The NPRM 
also addresses the fitness of a CLP holder who has passed the CDL 
skills test to operate a CMV on public roads and the fitness of Class B 
CDL holders to operate an empty passenger CMV without obtaining the P 
endorsement.
    The NPRM is also consistent with the concurrent authorities of the 
Motor Carrier Safety Act of 1984, as amended, codified at 49 U.S.C. 
31131, et seq.; and the Motor Carrier Act of 1935, as amended, codified 
at 49 U.S.C. 31502. The 1984 statute granted the Secretary

[[Page 7330]]

broad authority to issue regulations ``on commercial motor vehicle 
safety,'' including regulations to ensure that ``commercial motor 
vehicles are . . . operated safely'' (49 U.S.C. 31136(a)(1)). The NPRM 
is consistent with the safe operation of CMVs. In accordance with 
section 31136(a)(2), the enhanced flexibilities proposed in the NPRM 
will not impose any ``responsibilities . . . on operators of commercial 
motor vehicles [that would] impair their ability to operate the 
vehicles safely.'' This NPRM does not directly address medical 
standards for drivers (section 31136(a)(3)) or possible physical 
effects caused by driving CMVs (section 31136(a)(4)). FMCSA does not 
anticipate that drivers will be coerced (section 31136(a)(5)) if the 
NPRM results in the issuance of a final rule.
    Title 49 U.S.C., section 31502(b), provides that ``The Secretary of 
Transportation may prescribe requirements for--(1) qualifications and 
maximum hours of service of employees of, and safety of operation and 
equipment of, a motor carrier; and (2) qualifications and maximum hours 
of service of employees of, and standards of equipment of, a motor 
private carrier, when needed to promote safety of operation.'' The 
NPRM, which addresses certain knowledge and skills testing 
requirements, is related to the safe operation of motor carrier 
equipment.

V. Background

    On May 9, 2011, FMCSA published the CDL Testing and CLP Standards 
final rule (76 FR 26854) (May 2011 final rule) amending the CDL 
knowledge and skills testing standards and establishing new minimum 
Federal standards for States to issue the CLP. Each of the regulatory 
provisions that FMCSA proposes to revise in the NPRM, discussed below, 
were either adopted initially (Sec. Sec.  383.25, 383.79, 384.228, and 
384.229) or revised (Sec. Sec.  383.5 and 383.75) in the May 2011 final 
rule.
    On July 13, 2020, the ATA submitted a petition for rulemaking to 
FMCSA requesting that the Agency codify three CDL-related waivers 
issued (and subsequently reissued) in response to the coronavirus 
disease 2019 (COVID-19) pandemic:
    (1) Allow third-party CDL skills test examiners the ability to 
administer the CDL knowledge test, so long as the examiner maintains 
their CDL skills test examiner certification, has successfully 
completed a CDL skills test examiner training course, and completes a 
unit devoted to administering the knowledge test as required in Sec.  
384.228(c)(3); \2\
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    \2\ As discussed below in Section V.A., FMCSA withdrew the 
third-party knowledge examiner testing waiver on February 3, 2022.
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    (2) Eliminate from the requirement in Sec.  383.25(a)(1) that a CLP 
holder who has passed the CDL driving skills test be accompanied by a 
CDL holder with the proper CDL class and endorsements, seated in the 
front seat of a CMV, while the CLP holder operates a CMV on public 
roads or highways, provided that the CLP holder possesses evidence from 
a testing jurisdiction (including an authorized third-party tester) 
that a CLP holder has passed the CDL driving skills test, and provided 
that the CDL holder is elsewhere in the cab; and
    (3) Eliminate the restriction under Sec.  383.79(a) limiting States 
to the administration of driving skills tests to CDL applicants not 
domiciled in the testing State only if the applicant took driver 
training in that State. Each of the waivers was based on the need for 
regulatory flexibility in response to COVID-19-related service 
disruptions at the SDLAs and to enhance the efficiency of the 
commercial licensing process so that applicants could obtain a CDL more 
quickly. FMCSA issued the waivers after finding that granting the 
regulatory relief would achieve a level of safety equal to, or greater 
than, the level of safety achieved in the absence of the waivers, as 
required by 49 U.S.C. 31315(a). The waivers, discussed further below, 
are available in the docket of this rulemaking and can also be accessed 
at https://www.fmcsa.dot.gov/emergency/covid-19-archives.
    The ATA asserted that permanent incorporation of these temporary 
relief measures into the Federal Motor Carrier Safety Regulations 
(FMCSRs) would reduce regulatory burdens, aid the ongoing COVID-19 
recovery efforts, and ``ensure continuity in the American supply 
chain.'' The Agency granted ATA's petition on November 24, 2021. The 
NPRM is based, in part, on ATA's petition for rulemaking, as discussed 
further below.

A. Third Party Testing (Sec.  383.75)

    On April 9, 2020, FMCSA waived the CDL knowledge test examiner 
training requirements in Sec.  384.228(b) and (c) for certain third-
party CDL skills test examiners. The waiver allowed State-authorized 
third-party skills test examiners who have maintained a valid CDL test 
examiner certification and have previously completed a CDL skills test 
examiner training course satisfying the requirements of Sec.  
384.228(d) to administer the CDL knowledge test without completing a 
CDL knowledge test training course. (At the time of issuance, FMCSA's 
existing regulatory guidance stated that third-party knowledge testing 
was prohibited and that if an employee of the State authorized to 
supervise knowledge testing is present during the testing, FMCSA 
regards the test as being administered by the State and not by a third 
party.) The waiver allowed States and SDLAs to use third-party CDL 
skills test examiners to continue administering CDL knowledge tests 
while SDLAs remained closed, unable to administer CDL knowledge tests, 
or operating at a diminished capacity due to the COVID-19 emergency. 
The Agency reissued the waiver June 22, 2020, September 18, 2020, 
December 15, 2020, February 16, 2021, May 26, 2021, August 31, 2021, 
and November 29, 2021. As discussed below, FMCSA rescinded the waiver 
on February 3, 2022.
    On February 3, 2022, FMCSA published a notice of regulatory 
guidance concerning the States' use of third parties to administer CDL 
knowledge tests (87 FR 6045 (Feb. 3, 2022)) (February 2022 guidance). 
The guidance rescinded previously issued guidance, discussed above, 
stating that States' use of third-party knowledge test examiners was 
prohibited if a State employee was not present. The February 2022 
guidance affirmed that FMCSA's statutes and regulations do not prohibit 
States from authorizing third parties to administer CDL knowledge 
tests, as long as SDLAs adhere to the CDL knowledge test standards and 
testing requirements set forth in 49 CFR part 383, subparts G and H. 
Currently, FMCSA does not impose any other regulatory requirements 
pertaining to the States' optional use of third-party knowledge 
testing. In the February 2022 notice, FMCSA explained it was developing 
an NPRM to propose regulatory standards for third-party knowledge 
testing and, in the interim, encouraged States opting to use third-
party knowledge examiners to follow the training, certification, and 
record check requirements currently applicable to State knowledge 
examiners. This NPRM proposes those regulatory standards. The Agency 
subsequently issued additional guidance recommending best practices for 
States that allow third-party knowledge testing, discussed further 
below in section VI. On February 3, 2022, FMCSA also terminated the 
November 29, 2021, waiver then in effect allowing States, at their 
discretion, to permit certified third-party skills examiners to 
administer the

[[Page 7331]]

CDL knowledge test, subject to certain conditions.\3\ The Agency 
withdrew the waiver because it was based on the prior (rescinded) 
guidance stating that third-party knowledge testing was prohibited 
under FMCSA's regulations.
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    \3\ See ``Notice of Termination of Waiver for States Concerning 
Third Party CDL Skills Test Examiners in Response to the COVID-19 
Emergency,'' accessible here: https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2022-02/Third%20Party%20Skills%20Tester%20Waiver%20-%20Notice%20of%20Termination%20-%20FINAL%20-%20Feb%203%2022.pdf; 
also available in the docket of this rulemaking.
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B. CLP Holders Who Have Passed the CDL Skills Test (Sec.  383.25(a))

    Pursuant to Sec.  383.325(a), a CLP is considered a valid CDL for 
purposes of BTW training on public roads or highways, as long as 
specified minimum conditions are met. One of these conditions, set 
forth in Sec.  383.25(a)(1), requires that the CLP holder be 
accompanied by the holder of a valid CDL with the proper CDL group and 
endorsement(s), who is physically present in the front seat of the 
vehicle next to the CLP holder or, in the case of a passenger CMV, 
directly behind or in the first row behind the driver, and must have 
the CLP holder under direct observation and supervision. In adopting 
this provision in the May 2011 final rule, the Agency noted that it is 
not safe to permit inexperienced drivers who have not passed the CDL 
skills test to drive unaccompanied.\4\
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    \4\ 76 FR 26854, 26861 (May 9, 2011).
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Applications for Exemption--Sec.  383.25(a)(1)
    On November 28, 2014, the Agency published for notice and comment 
C.R. England Inc.'s (C.R. England) request for an exemption from Sec.  
383.25(a)(1), which would allow CLP holders who have passed the CDL 
skills test and are eligible to receive a CDL to drive a truck without 
a CDL holder being present in the front seat, as long as the CDL holder 
is present elsewhere in the vehicle (79 FR 70916). FMCSA, after 
analyzing the exemption application and public comments received, 
determined that the exemption, subject to the terms and conditions 
imposed, would likely achieve a level of safety that is equivalent to, 
or greater than, the level that would be achieved absent such 
exemption. Subsequently, on June 11, 2015, the Agency published notice 
that it granted the C.R. England exemption, effective June 13, 2015, 
through June 12, 2017 (80 FR 33329). Under the terms and conditions of 
the exemption, a CLP holder who has documentation of passing the CDL 
skills test may drive a CMV for C.R. England without being accompanied 
by a CDL holder in the front seat. In granting the exemption, FMCSA 
concluded that CLP holders who have passed the skills test are 
qualified and eligible to receive a CDL. The exemption enabled CLP 
holders to drive as part of a team and have the same regulatory 
flexibility that 49 CFR 383 provides for C.R. England's team drivers 
with CDLs. On June 12, 2017, FMCSA published notice of its decision to 
grant C.R. England's request that the initial exemption be renewed for 
a period of 5 years, from June 13, 2017, through June 12, 2022 (82 FR 
26975). The Agency subsequently renewed this exemption again for 
another 5 years from June 13, 2022, until June 12, 2027 (87 FR 36360). 
The renewals of the exemption were based, in part, on C.R. England's 
data demonstrating that drivers utilizing the exemption during the 
initial exemption period had better safety outcomes than non-exempt 
drivers. The Agency also requested comments on each 5-year extension. 
The C.R. England exemption requests and the notices of FMCSA's 
disposition are available in the docket for this rulemaking.
    On January 5, 2016 (81 FR 291), FMCSA published notice of an 
application from CRST Expedited (CRST) requesting an exemption from the 
requirement that a CLP holder must always be accompanied by a CDL 
holder with the proper CDL class and endorsements, seated in the front 
seat of the vehicle while the CLP holder performs BTW training on 
public roads or highways and requested comments. On September 23, 2016, 
the Agency granted CRST the exemption, effective from September 23, 
2016, through September 24, 2018 (81 FR 65696). The rationale for 
CRST's requested exemption, and the Agency's decision to grant the 
exemption, was essentially the same as it was for the C.R. England 
exemption discussed above. On August 9, 2018, FMCSA published notice of 
CRST's request that FMCSA renew the initial exemption and requested 
public comment (83 FR 39495). On October 19, 2018, the Agency renewed 
CRST's exemption for a period of 5 years, effective September 23, 2018, 
through September 24, 2023 (83 FR 53149). On [August 7, 2023, FMCSA 
provisionally extended CRST's (now doing business as CRST The 
Transportation Solution, Inc.) exemption for an additional 5 years, 
through September 24, 2028, (88 FR 52241). The provisional exemption, 
which is subject to public comment for 30 days following publication of 
the exemption in the Federal Register, is based on CRST's assertion 
that it has not experienced any safety issues while operating under the 
exemption and will continue to monitor its safety data. The CRST 
exemption requests and the notices of FMCSA's disposition are available 
in the docket for this rulemaking.
    Finally, on June 27, 2017, FMCSA granted a 5-year exemption from 
Sec.  383.25(a)(1) to New Prime, Inc. (Prime) under the same terms and 
conditions as the exemptions issued to C.R. England and CRST, described 
above (82 FR 29143). In its application for exemption, Prime cited the 
fact that CLP holders who have passed the skills test in the State 
where they obtained driver training are eligible to obtain a CDL and 
therefore capable of safely operating a CMV. Prime stated that granting 
the exemption would enable CLP holders to work immediately as part of a 
team of drivers to transport cargo through the company's freight 
network before receiving their CDL credential from their State of 
domicile. In response to Prime's request that FMCSA extend the 
exemption the Agency provisionally renewed Prime's exemption for 5 
years, from June 28, 2022 through June 27, 2027 (87 FR 38449), for 
essentially the same reasons as the provisional renewal granted to CRST 
in 2022. The Prime exemption requests and the notices of FMCSA's 
disposition are available in the docket for this rulemaking.
Waivers--Sec.  383.25(a)(1)
    On March 28, 2020, FMCSA issued a waiver from the requirement under 
Sec.  383.25(a)(1) that a CLP holder be accompanied by a CDL holder, 
with the proper CDL class and endorsements, seated in the front seat of 
the vehicle while the CLP holder operates a CMV on public roads or 
highways. Under the terms, conditions, and restrictions of the waiver, 
a CLP holder may operate a CMV on public roads or highways without an 
accompanying CDL holder present in the front seat of the vehicle, 
provided that the CDL holder is elsewhere in the cab. In addition, the 
CLP holder must be in possession of evidence from the testing 
jurisdiction, including an authorized third-party tester, that the CLP 
holder has passed the CDL driving skills test, and the CLP holder has a 
valid non-CDL driver's license, CLP, and medical certificate. The 
Agency granted the waiver to expedite CDL issuance to address supply 
chain disruptions related to the COVID-19 national emergency, including 
a shortage of CMV drivers. FMCSA re-issued the waiver on June 17, 2020, 
September 18, 2021, December 15, 2020, February 16, 2021, May 26, 2021, 
August 31, 2021, November 29, 2021,

[[Page 7332]]

February 26, 2022, May 27, 2022, and August 31, 2022. The waiver 
expired on November 30, 2022.

C. Eligibility To Take the CDL Skills Test (Sec.  383.25(e))

    Currently CLP holders, who have passed the required CDL knowledge 
test(s), are not eligible to take the CDL skills test within the 14 
days following initial issuance of the CLP, a set forth in Sec.  
383.25(e). When this restriction was adopted in the May 2011 final 
rule, the Agency explained the mandatory waiting period was necessary 
to allow applicants to obtain sufficient BTW training in preparation 
for the skills test.
    On March 24, 2020, FMCSA issued a waiver from this requirement. The 
terms, conditions, and restrictions of the waiver afforded States 
discretion to allow CLP holders to take the CDL skills test without 
waiting 14 days after initial issuance of the CLP, provided the CLP 
holder had completed applicable ELDT requirements set forth in 49 CFR 
part 380, subpart F. The Agency re-issued the waiver on June 17, 2020, 
September 18, 2021, December 15, 2020, February 16, 2021, May 26, 2021, 
August 31, 2021, November 29, 2021, February 26, 2022, May 27, 2022, 
and August 31, 2022. The waiver expired on November 30, 2022.

D. CDL Testing Requirements for Out-of-State Driver Training School 
Students (Sec.  383.79)

    In the May 2011 final rule, FMCSA adopted a provision permitting a 
State to administer the CDL skills test in accordance with 49 CFR part 
383, subparts F, G, and H, to an applicant who has taken training in 
that State and is to be licensed in another State (i.e., the State of 
domicile). The testing State must electronically submit the skills test 
results to the State of domicile in a secure and efficient manner. The 
State of domicile must accept the results of a CDL skills test 
administered to an applicant by any other State in fulfillment of the 
applicant's testing requirements under Sec.  383.71 and the State's 
test administration requirements under Sec.  383.73. The Agency 
explained that the provision would help CLP holders obtain a CDL more 
efficiently by not requiring the applicant to return to their State of 
domicile to take the skills test after completing driver training in 
another State. FMCSA further noted that, since CMV driving schools 
routinely supply applicants with a truck or motorcoach for skills 
testing purposes, requiring these applicants to return to the State of 
domicile to take the CDL skills test would result in the applicant 
having to incur the cost and inconvenience of securing a CMV in which 
to take the test.
    On March 28, 2020, FMCSA issued a waiver from the requirement that 
the applicant must have received training in the testing State. Under 
the terms and conditions of this waiver, States could elect to 
administer the CDL skills test to any out-of-State CLP holder, 
regardless of where the applicant received driver training. FMCSA noted 
that because the regulatory standards set forth in 49 CFR part 383, 
subparts F, G, H, and J set forth uniform national knowledge and skills 
testing procedures and antifraud measures for the States, the waiver 
would have no negative impact on safety. FMCSA noted that the 
requirement in Sec.  383.79(a)(2) that the State of domicile must 
accept the results of a driving skills test administered to the 
applicant by any other State, in accordance with subparts F, G, and H 
of this part, in fulfillment of the CDL applicant's testing 
requirements under part 383, would continue to apply. The Agency re-
issued the waiver on June 17, 2020, September 18, 2021, December 15, 
2020,
    February 16, 2021, May 26, 2021, August 31, 2021, November 29, 
2021, February 26, 2022, May 27, 2022, and August 31, 2022. The waiver 
expired on November 30, 2022.

E. Transport of Empty Passenger CMVs by CDL Holders Without a P 
Endorsement (Sec.  383.93(b))

    Currently the FMCSRs require that CDL holders operating passenger 
CMVs, including school buses, must obtain the P endorsement to 
transport the vehicle. In October 2017, NHDOT submitted a petition for 
rulemaking requesting that Sec.  383.93 be amended to permit CDL 
holders who do not have a P endorsement to transport empty passenger 
CMVs to repair facilities. NHDOT noted that the State's rural agencies 
have encountered hardships based on the requirement for the driver to 
have a P endorsement on their CDL because, while mechanics generally 
have a CDL, they typically do not have a P endorsement. As a result, 
the State agency must either incur the expense of having the vehicle 
towed to the repair site or locate a driver with a P endorsement on 
their CDL who can drive the CMV to the repair site. NHDOT noted that 
the current requirement for a P endorsement does not seem necessary 
when there are no passengers onboard. NHDOT's petition for rulemaking 
is available in the docket for this rulemaking.
    In 2019, the Agency received multiple requests for exemption from 
the requirement that a CDL holder transporting an empty bus be required 
to have a P endorsement. On August 13, 2019, the Agency responded to 
those requests by posting an enforcement notice on FMCSA's website 
announcing that the Agency does not intend to take enforcement action 
against CDL holders driving an empty bus from the manufacturer to the 
local distributor or in a driveaway-towaway operation without the P and 
S endorsements, provided the driver possesses a bill of lading showing 
the trip is for delivery only. The enforcement notice is available at 
https://www.fmcsa.dot.gov/mission/chief-counsel/enforcement-notice.
    In March 2022, FMCSA granted NHDOT's petition for rulemaking to 
amend Sec.  383.93 to permit CDL holders to operate a passenger CMV 
without having a P endorsement on their CDL when the driver is 
transporting the vehicle to a repair facility and the vehicle has no 
passengers onboard. The proposed amendment to Sec.  389.93(b) is based, 
in part, on NHDOT's petition.

VI. Discussion of Proposed Rulemaking

    The Agency proposes to improve the efficiency and convenience of 
obtaining a CDL by increasing flexibilities in certain CDL licensing 
processes, without negatively impacting safety. Additionally, the NPRM 
would strengthen the program integrity of CDL knowledge tests 
administered by third-party examiners and provide flexibility for CDL 
holders transporting empty passenger CMVs. As discussed above, the 
proposed revisions stem from the temporary regulatory relief FMCSA 
provided in response to the impact of the COVID-19 public health 
emergency on SDLAs' operations and on the supply chain and from 
petitions for rulemaking submitted by ATA and NHDOT.

A. Definitions

    The NPRM would add two new definitions to Sec.  383.5: (1) third-
party knowledge examiner, defined as ``a person employed by a third-
party knowledge tester who is authorized by the State to administer the 
CDL knowledge tests specified in subparts G and H of this part;'' and 
(2) third-party knowledge tester, defined as ``a person (including, but 
not limited to, another State, a motor carrier, a private driver 
training facility or other private institution, or a department, agency 
or instrumentality of a local government) authorized by the State to 
employ knowledge test examiners to administer the CDL knowledge tests 
specified in subparts G and H of this part.'' The addition of these 
terms is necessary to accommodate the proposed revisions

[[Page 7333]]

pertaining to third-party knowledge testing, as described below.
    FMCSA also proposes to revise the current term third-party tester 
to read third-party skills tester in light of the added definition for 
third-party knowledge test examiner.

B. CLP Holders Who Have Passed the Skills Test

    Currently, a CLP is considered a valid CDL to operate a CMV on 
public roads or highways only for the purpose of BTW training, subject 
to certain conditions. One of those conditions, set forth in Sec.  
383.25(a)(1), states that the CLP holder must at all times be 
accompanied by the holder of a valid CDL who has the proper CDL group 
and endorsement(s) necessary to operate the CMV. The CDL holder must at 
all times be physically present in the front seat of the vehicle next 
to the CLP holder or, in the case of a passenger CMV, directly behind 
or in the first row behind the driver and must have the CLP holder 
under observation and direct supervision. When adopting this 
requirement in the May 2011 final rule, FMCSA noted that it would not 
be safe to permit an inexperienced driver who has not passed the skills 
test to operate a CMV unaccompanied.\5\
---------------------------------------------------------------------------

    \5\ Ibid.
---------------------------------------------------------------------------

    The Agency proposes to amend Sec.  383.25(a)(1) by adding an 
exception permitting a CLP holder who has passed the skills test to 
operate a CMV for purposes other than BTW training without having a CDL 
holder sitting in the front passenger seat or to operate an empty 
passenger CMV, including a school bus, or an empty tank vehicle,\6\ 
without a CDL holder seated directly behind, or in the first row 
behind, the CLP holder. The proposed exception would apply only if the 
CLP holder has already passed the skills test, possesses documentary 
evidence from the testing State of having passed the skills test, and 
the holder of a valid CDL is physically present in the CMV. The Agency 
believes the proposed revision would not negatively affect safety, 
because, by passing the skills test, the CLP holder has demonstrated 
their ability to safely operate the CMV.
---------------------------------------------------------------------------

    \6\ Under Sec.  383.25(a)(5)(i) and (ii) respectively, CLP 
holders are prohibited from operating a CMV carrying passengers or a 
school bus carrying passengers. For purposes of the prohibition, 
Federal/State auditors and inspectors, test examiners, other 
trainees, and the CDL holder accompanying the CLP holder as 
prescribed by paragraph (a)(1), are not considered passengers. Under 
Sec.  383.25(a)(5)(iii) a CLP holder may only operate an empty tank 
vehicle and is prohibited from operating any tank vehicle that 
previously contained hazardous materials that has not been purged of 
any residue.
---------------------------------------------------------------------------

    While the Agency anticipates this flexibility would be used 
primarily by CLP holders who pass the skills test in a State other than 
their State of domicile, the exception also applies when a CLP holder 
passes the skills test in their State of domicile. For example, if a 
CLP holder passes the skills test administered by a third-party skills 
test examiner at a testing site located miles from the nearest SDLA, 
the CLP holder could operate a CMV under this exception. The Agency 
notes that CLP holders who pass the skills test in their State of 
domicile and receive a temporary CDL authorizing them to operate a CMV 
until they receive the CDL credential in the mail would not need to use 
the exception because they would no longer be CLP holders.
    The NPRM would provide flexibility for CLP holders, who, for 
example, obtain driver training outside their State of domicile by 
allowing them to be productively employed as a CMV driver before 
formally receiving the CDL document issued by their State of domicile. 
As noted above in the discussion of the previously granted exemptions 
from Sec.  383.25(a)(1), CLP holders operating under the exception 
could function as part of a team of drivers to transport cargo until 
they receive the CDL credential from their State of domicile. The 
proposed exception may therefore ease supply chain disruptions related 
to CMV driver shortages while retaining an adequate assurance of safety 
provided by the conditions under which these operations are allowed.

C. Eligibility To Take the CDL Skills Test

    Currently, applicants who obtain a CLP after passing the required 
knowledge test(s) are not eligible to take the CDL skills test during 
the 14 days following initial issuance of the CLP, as set forth in 
Sec.  383.25(e). The purpose of this mandatory waiting period is to 
allow time for applicants to obtain CMV driver training in preparation 
for taking the skills test. On February 7, 2022, FMCSA implemented ELDT 
standards, including required BTW training on a driving range and on 
public roads, set forth in 49 CFR part 380, appendices A through D. 
States must verify that CLP holders completed the required ELDT before 
administering the skills test, as set forth in Sec.  383.73(b)(11). The 
Agency therefore proposes to remove paragraph (e) because the 14-day 
waiting period is no longer necessary. The elimination of the mandatory 
waiting period would permit applicants who successfully complete the 
performance-based BTW training less than 14 days after initial issuance 
of the CLP to obtain a CDL sooner than they can today. The Agency notes 
that the ELDT regulations do not prohibit applicants from scheduling 
the skills test before they have completed ELDT, which further 
increases the efficiency of the skills testing process.

D. CDL Skills Testing for Out-of-State Applicants

    Section 383.79(a)(1) permits, but does not require, an SDLA to 
allow an out-of-State CDL applicant to take the CDL driving skills test 
if the applicant also received training in that State. The skills test 
must be administered in accordance with 49 CFR part 383, subparts F, G, 
and H and test results must be transmitted electronically directly from 
the testing State to the licensing State (i.e., State of domicile) in a 
direct, efficient, and secure manner. The NPRM proposes to remove the 
restriction that the out-of-State applicant must have obtained training 
in the testing State to take the CDL skills test in the testing State. 
SDLAs thus would be permitted to administer the CDL driving skills test 
to out-of-State CDL applicants regardless of where the applicant 
received driver training. The requirement that the State of domicile 
accept the skills test results in fulfillment of the applicant's 
testing requirements under Sec.  383.71, and the State's testing 
administration requirements under Sec.  383.73, as currently set forth 
in Sec.  383.79(a)(2), would remain unchanged.\7\
---------------------------------------------------------------------------

    \7\ 49 CFR 383.79(b) currently addresses CDL application 
requirements for active duty military service members. The NPRM does 
not propose to amend those provisions.
---------------------------------------------------------------------------

    FMCSA proposes this revision so that CDL applicants can complete 
the required skills testing as soon as possible without compromising 
highway safety. Under the proposal, CLP applicants would be free to 
schedule their skills test according to their needs or convenience. As 
noted above, the testing State may, for example, be where an applicant 
obtained training and has access to a CMV in which to take the skills 
test, or it may be a neighboring State with a shorter wait list for 
securing a skills test appointment than the applicant's State of 
domicile. In any event, the requirement that training must occur in the 
testing State is no longer necessary with implementation of FMCSA's 
uniform minimum ELDT requirements on February 7, 2022. Applicants must 
now comply with the Federal ELDT standards, set forth in 49 CFR part 
380, subpart F, before taking the skills test, thereby ensuring 
qualified applicants.

[[Page 7334]]

Under the proposal, the testing State must continue to administer the 
skills test in accordance with existing requirements in 49 CFR part 
383, subparts F, G, and H, which would ensure consistency in skills 
test execution.
    The Agency requests comment from SDLAs concerning the operational 
impact of this proposed revision on either the testing State or the 
State of domicile.

E. Third-Party Knowledge Examiners and Testers

    As explained above in Section V., in accordance with FMCSA's 
regulatory guidance issued on February 3, 2022, a State's discretionary 
use of third-party knowledge examiners is not prohibited by statute or 
regulation. States may therefore permit third-party knowledge examiners 
to administer the knowledge test for CDL classes and endorsements. 
Currently there are no regulatory requirements governing a State's use 
of third-party knowledge examiners. The February 2022 guidance 
represented a change in the Agency's position on States' use of third-
party knowledge examiners, rescinding previous guidance, initially 
issued in 1993 by the Federal Highway Administration,\8\ FMCSA's 
predecessor agency, stating that States should not permit third-party 
knowledge testing outside the presence of a State knowledge examiner. 
In explaining that change, FMCSA noted that it planned to undertake a 
rulemaking to establish standards for States opting to permit the CDL 
knowledge test to be administered by third-party examiners.
---------------------------------------------------------------------------

    \8\ See, 58 FR 60734, 60739 (Nov. 17, 1993).
---------------------------------------------------------------------------

    In the interim, FMCSA provided guidance to the States recommending, 
but not requiring, best practices for States allowing third-party 
knowledge testing, including following the training, certification, and 
record check requirements currently applicable to State knowledge 
examiners and the auditing and monitoring requirements currently 
applicable to third-party skills examiners and testers. Both the 
February 2022 notice of regulatory guidance and FMCSA's subsequent 
``best practices'' guidance are available in the docket for this 
rulemaking.
    Consistent with the current regulatory guidance, the NPRM proposes 
that States permitting third-party examiners to administer CDL 
knowledge tests be subject to the same training (including refresher 
training), testing, certification, and criminal background check 
requirements applicable to State knowledge examiners, as set forth in 
Sec.  384.228, and the auditing and monitoring requirements applicable 
to third-party skills examiners, as set forth in Sec.  384.229. Because 
certain provision of Sec.  384.228 already apply to third-party skills 
examiners, FMCSA proposes to except certified third-party skills test 
examiners who also administer the knowledge tests from those provisions 
to avoid the application of duplicative requirements. Additionally, 
FMCSA proposes to establish the conditions under which States would be 
authorized to permit third-party knowledge testing, which currently 
apply only to third-party skills testing, as set forth in Sec.  383.75. 
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 Agency believes application of these standards to third-party 
knowledge examiners and testers would further ensure the integrity of 
the knowledge testing program, just as the requirements in Sec.  
384.228 ensure that State knowledge examiners are adequately trained 
and otherwise qualified, and as Sec. Sec.  384.229 and 383.75 currently 
ensure the integrity of third-party skills testing.
    FMCSA invites comment on the proposed applicability of these 
standards to third-party knowledge examiners and testers.

F. P Endorsement Requirements

    In accordance with Sec.  383.93(b)(2) and (5), CDL holders 
transporting CMVs designed to carry passengers, including school buses, 
must have a P endorsement. Pursuant to Sec.  393.93(c)(2), drivers must 
pass a specialized knowledge test and pass the skills test to obtain 
the P endorsement. Under Sec.  383.117, the P endorsement knowledge 
test topics include loading/unloading passengers, dealing with unruly 
passengers, procedures for an emergency evacuation of the vehicle, and 
other operating practices and procedures. The applicant must take the P 
endorsement skills test in a passenger vehicle satisfying the 
requirements of the vehicle group (e.g., Group B). The P endorsement is 
intended primarily to ensure the driver has the necessary skills and 
knowledge to safely transport passengers and does not otherwise require 
additional on-road driving skills beyond those already required to hold 
a CDL of the appropriate class. As discussed above, the Agency's 
current enforcement policy permits a CDL holder to transport a 
passenger CMV without having the P endorsement on their CDL when the 
vehicle is being delivered to a distributor from the manufacturer, or 
in a driveaway-towaway operation, when there are no passengers in the 
vehicle except the driver and the driver possesses a bill of lading or 
other documentation indicating the trip is for delivery only. FMCSA 
proposes to amend Sec.  383.93(b) to create an exception to the 
requirement that CDL holders have a P endorsement to operate an empty 
passenger CMV, including an empty school bus, when the vehicle is being 
transported for delivery or in a driveaway-towaway operation, as 
defined in Sec.  390.5T. FMCSA notes that an S endorsement is not 
required to operate an empty school bus because the S endorsement is 
required only when the bus is transporting pre-primary, primary, or 
secondary school students from home to school, school to home, or to 
and from school-sponsored events, as set forth in the definition of 
school bus in Sec.  383.5.
    The Agency proposes this change to provide enhanced flexibility in 
the delivery of empty passenger CMVs to a distributor or a repair 
facility without compromising passenger safety. FMCSA emphasizes that 
the underlying CDL requirements are unaffected by the proposed change; 
the driver must possess a CDL of the appropriate class for operating 
the passenger CMV, such as a Class B CDL to operate a motorcoach. As 
NHDOT noted in its petition for rulemaking, while mechanics generally 
have a valid CDL, most do not have the P endorsement. The proposed 
change would facilitate the limited transportation of passenger CMVs, 
thereby ensuring the timely delivery of the vehicle from the 
manufacturer or the delivery of the vehicle to effect necessary 
repairs. In addition, the proposed amendment would allow for timely 
removal of a damaged (but still drivable) vehicle from the roadside 
following a crash. The Agency concludes that delivery documentation 
referenced in the current guidance, such as a bill of lading, need not 
be a regulatory requirement. As explained above, in FMCSA's judgment, 
an empty passenger CMV can be transported by a driver holding only a 
CDL of the appropriate class with no impact on passenger safety. 
Delivery documentation requirements would therefore impose 
administrative burden on the transportation of empty CMVs without 
improving safety.
    The Agency requests comment on the proposed amendment.

[[Page 7335]]

G. Major Issues on Which the Agency Seeks Comment

    While the Agency invites comment on all aspects of the NPRM, we are 
particularly interested in receiving comments that address the 
following issues:
    1. What forms of documentation would be acceptable to demonstrate 
to a law enforcement officer or CMV inspector that the CLP holder 
operating the CMV has successfully completed the CDL skills test? What 
form of documentation did States acting under the authority of the 
waiver or exemptions provide for CLP holders who passed the skills test 
in their State?
    2. Should a CLP holder be permitted to operate a CMV under the 
proposed exception to Sec.  383.25(a)(1) until the CLP expires or 
should there be a shorter time period after passing the skills test 
that the CLP holder must obtain the CDL credential? Please explain your 
answer.
    3. Did SDLAs relying on the waiver allowing a CLP holder to take 
the CDL skills test without waiting 14 days following issuance of the 
CLP experience a change in the applicant passing rate for the road test 
portion of the skills test? Were there a large number of applicants who 
took the skills test in your State without waiting 14 days? Did these 
SDLAs see a reduction in skills testing backlogs in their State?
    4. Are there safety or operational concerns associated with lifting 
the mandatory 14-day waiting period between obtaining a CLP and taking 
the CDL skills test? Would your State impose a waiting period between 
CLP issuance and the CLP holder taking the skills test, even if it was 
no longer be required? Please explain your answer.
    5. The NPRM proposes to permit a State to administer the CDL skills 
test to an out-of-State CLP holder who has not obtained training in the 
testing State. If adopted, would removing this restriction have any 
impact on your State's decision to permit out-of-State CLP holders to 
take the skills test in the State? Please explain your answer.
    6. With a few noted exceptions, the NPRM proposes to apply training 
and oversight standards currently applicable to third-party skills 
testers to third-party knowledge testers. Do you believe any of these 
existing requirements are not relevant to third-party knowledge 
testers? If so, please explain your answer.
    7. Should State knowledge examiners be included in the auditing and 
monitoring requirements proposed for third-party knowledge examiners in 
new Sec.  384.229(b)(2) and (3) to minimize fraud? Why or why not?
    8. What form of oversight do States currently provide for State 
knowledge examiners? If State knowledge examiners were included within 
the scope of the oversight requirements proposed in new Sec.  
384.229(b)(2) and (3), would that result in additional costs for the 
States? If so, please explain and estimate the additional costs.
    9. Do you agree or disagree with the proposed requirement that CDL 
knowledge tests administered by third-party examiners be securely 
conducted electronically to minimize fraud? Please explain your answer.
    10. FMCSA is aware that several States currently permit third-party 
knowledge testing and that some States permitted third party knowledge 
testing in accordance with waivers in effect between July 1, 2020, and 
February 3, 2022. For these States, do/did you permit third-party 
examiners to administer the tests in a physical location outside of the 
SDLA (e.g., a testing center)? If not, why not? If so, please describe 
the specific measures you take/took to ensure the integrity of the 
third-party knowledge testing process in a separate physical location. 
For example, how did/does your State verify the applicant's identity 
before they take the knowledge test and that applicants take the test 
themselves without assistance, such as reference materials?
    11. Would your State consider allowing third-party knowledge 
testing in accordance with the new requirements proposed by the NPRM? 
Why or why not? What factors do you believe will influence your 
decision?
    12. The NPRM estimates that the proposed application of training, 
record check, and oversight requirements to States opting to utilize 
third-party knowledge examiners and testers would result in additional 
costs to those States and has preliminarily identified cost estimates 
in this NPRM. Do you agree with these estimated costs? Why or why not? 
Do these costs change if the State already has an auditing and 
monitoring program for third-party skills examiners?
    13. How long would States need to adapt their administrative 
processes and procedures to accommodate the proposed changes? Would any 
of the proposed changes require a modification of SDLAs' IT systems or 
a change in underlying State law?
    14. Does the proposal to except CDL holders transporting empty 
passenger CMVs, including school buses, from having a P endorsement in 
driveway-towaway operations, or when transporting the vehicle from the 
manufacturer to a distributor, raise any safety concerns? Why or why 
not?

VII. Section-by-Section Analysis

    This section summarizes the changes proposed for 49 CFR parts 383 
and 384 in numerical order.

A. Proposed Changes to Part 383

    Part 383 establishes standards for the issuance and administration 
of CLPs and CDLs. The Agency proposes to amend Part 383 in the 
following ways:
Section 383.5 Definitions
    FMCSA proposes to add definitions of the terms third-party 
knowledge examiner (a person employed by a third-party knowledge tester 
who is authorized by the State to administer the CDL knowledge tests 
specified in subparts G and H of this part) and third-party knowledge 
tester (a person (including, but not limited to, another State, a motor 
carrier, a private driver training facility or other private 
institution, or a department, agency, or instrumentality of a local 
government) authorized by the State to employ third-party knowledge 
examiners to administer the CDL knowledge tests specified in subpart G 
and H of this part). Additionally, FMCSA would revise the current term 
third party tester to read third-party skills tester and add a hyphen 
to the term ``third party'' in the definition of third party skills 
test examiner.
Section 383.25 Commercial Learner's Permit (CLP)
    FMCSA proposes to revise Sec.  383.25 by adding an exception to 
paragraph (a)(1) that would permit CLP holders who have passed the 
relevant CDL skills test(s) and possess documentary evidence of having 
done so, to operate a CMV on public roads or highways for purposes 
other than BTW training, as long as a CDL holder with the proper CDL 
class and endorsements to operate the CMV is physically present in the 
vehicle.
    The Agency also proposes to amend Sec.  383.25 by removing 
paragraph (e), which states that CLP holders are not eligible to take 
the CDL skills test in the 14 days following initial issuance of the 
CLP.
Section 383.75 Third Party Testing
    The NPRM proposes to amend Sec.  383.75 by consolidating existing 
paragraphs (a) through (c) into new paragraph (a) and adding a new 
paragraph (b). Proposed new paragraph (a) would contain the current 
auditing and monitoring requirements applicable to third party skills 
testers as set forth

[[Page 7336]]

in current paragraphs (b) and (c). New paragraph (b) would contain 
auditing and monitoring requirements for States choosing to authorize 
third party knowledge testers and examiners. Section 383.75 currently 
imposes auditing and monitoring requirements only on States that rely 
on third party skills testers and examiners. The proposed oversight 
requirements in new paragraph (b) governing a State's use of third 
party knowledge testers would be based on the relevant provisions now 
applicable to third party skills testers. FMCSA also proposes to add a 
requirement that all knowledge tests administered by third party 
examiners be conducted electronically. The NPRM also proposes that the 
title of Sec.  383.75 be changed from ``Third party testing'' to 
``Third party skills and knowledge testing'' to reflect the proposed 
addition of new paragraph (b).
Section 383.79 Driving Skills Testing of Out-of-State Students; 
Knowledge and Driving Skills Testing of Military Personnel
    FMCSA proposes to revise Sec.  383.79(a)(1), by removing the 
restriction requiring an applicant taking the CDL skills test in a 
State other than the licensing State (i.e., the applicant's State of 
domicile) to have obtained training in the testing State. Under the 
proposed revision, CDL applicants would be able to take the skills test 
in any State, regardless of where they obtained driver training.
Section 383.93 Endorsements
    The NPRM proposes to amend Sec.  383.93(b), which requires drivers 
to obtain State-issued endorsements to their CDL when operating 
specified type of CMVs, including passenger CMVs (Sec.  383.93(b)(2)) 
and school buses (Sec.  383.93(b)(5)). The amendment would create an 
exception from the requirement that a driver obtain a P endorsement 
when operating passenger CMVs, including school buses, when the vehicle 
is empty of all passengers other than the driver and is being 
transported from the manufacturer to a distributor, or in a driveway-
towaway operation, as defined in Sec.  390.5T.

B. Proposed Changes to Part 384

    Part 384 establishes standards and procedures to ensure that the 
States comply with 49 U.S.C. 31311(a), which sets forth the 
requirements for States' participation in the CDL program and specifies 
the consequences of State noncompliance. The Agency proposes to amend 
part 384 in the following ways:
Section 384.228 Examiner Training and Record Checks
    This section requires States to follow certain examiner training 
and record check protocols for State knowledge and skills examiners and 
third-party skills examiners. The Agency proposes to include third 
party knowledge examiners within the scope of the training and record 
check requirements now applicable to State knowledge examiners, as set 
forth in Sec.  384.228(a) through (c) (training standards and content, 
completion of formal training course, passing the course exam, and the 
State's certification of the examiner); (f)(1) (completion of refresher 
training every four years); (f)(3) and (4) (refresher training course 
content); (h) (nationwide criminal background checks); (i) (State's 
retention of records related to examiner background checks training, 
and certification; (j) State's recission of examiner certification for 
any examiner failing to complete mandatory refresher training; and (k) 
(required examiner training content may be supplemented by State-
specific material related to administering CDL knowledge and skills 
tests). Most of these requirements currently apply to State and third-
party skills test examiners as well as State knowledge examiners. The 
Agency does not intend to impose duplicative training and record check 
requirements on certified skills test examiners who also administer 
knowledge tests. Accordingly, to the extent that certified skills test 
examiners are already subject to the provisions of Sec.  384.228 listed 
above, States would be excepted from the training and record check 
requirements regarding third-party knowledge examiners.
    Additionally, FMCSA proposes to remove paragraph (g), which 
requires States to conduct criminal background checks of all skills 
test examiners prior to certifying them to administer skills tests. 
This provision, originally adopted in the May 2011 final rule, is no 
longer necessary in light of current paragraph (h), subsequently 
amended in 2013 to require, in paragraph (h)(1), that criminal 
background checks be completed for all State and third-party test 
examiners before hiring and, in paragraph (h)(2), to require that 
criminal background checks be completed for any current State or third-
party test examiner who has not had a criminal background check. FMCSA 
would also revise current paragraph (h)(1) by adding an exception from 
its requirements for current third-party skills testers who have 
maintained their CDL test examiner certification and have already been 
subject to a nationwide criminal background check. The remaining 
paragraphs would be renumbered accordingly.
Section 384.229 Skills Examiner Auditing and Monitoring
    FMCSA proposes to amend Sec.  384.229, which requires States to 
conduct auditing and monitoring of State and third-party skills 
examiners. The proposal would divide this section into two paragraphs, 
one setting forth the requirements currently applicable to third-party 
skills test examiners, which would remain unchanged, and the other 
setting forth proposed auditing and monitoring requirements applicable 
to third-party knowledge examiners.

VIII. Severability

    As discussed above in Section III. Legal Basis, FMCSA is authorized 
by 49 U.S.C. chapter 313 to promulgate regulations governing the 
issuance of CDLs. The NPRM is also based on several concurrent 
authorities to establish minimum standards for the fitness of drivers 
operating CMVs and to promulgate standards for the safe operation of 
CMVs.
    Consistent with these statutory authorities, the NPRM proposes 
revisions to 49 CFR part 383, Commercial Licensing Standards; 
Requirements and Penalties and 49 CFR part 384, State Compliance with 
Commercial Driver's License Program. The primary purpose of the NPRM is 
to enhance the flexibility and efficiency of the CDL program by 
proposing the removal of several current regulatory restrictions 
without compromising safety. The NPRM would improve safety by proposing 
measures to establish qualification requirements for third-party 
knowledge examiners and monitoring and oversight requirements for 
States choosing to utilize third-party knowledge testing.
    The revisions proposed in the NPRM primarily pertain to discrete 
regulatory requirements proposed in 49 CFR parts 383 and 384. 
Therefore, FMCSA finds that the various provisions of the NPRM 
pertaining to 49 CFR part 383 and the proposed change to part 384 are 
severable and able to operate functionally if severed from each other 
in a final rule resulting from this NPRM. In the event a court were to 
invalidate one or more of the unique provisions of a final rule, the 
remaining provisions should stand, thus allowing FMCSA to continue to 
fulfill its Congressionally authorized role of regulating the issuance 
of CDLs and promoting the safe operation of CMVs.

[[Page 7337]]

IX. Regulatory Analyses

A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 
13563 (Improving Regulation and Regulatory Review), E.O. 14094 
(Modernizing Regulatory Review), and DOT Regulatory Policies and 
Procedures

    The Office of Information and Regulatory Affairs (OIRA) determined 
that this proposed rule is not a significant regulatory action under 
section 3(f) of E.O. 12866 (58 FR 51735, Oct. 4, 1993), Regulatory 
Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, Jan. 
21, 2011), Improving Regulation and Regulatory Review, and by E.O. 
14094 (88 FR 21879, Apr. 11, 2023), Modernizing Regulatory Review, and 
does not require an assessment of potential costs and benefits under 
section 6(a)(3) of that Order. This rule is also not significant within 
the meaning of DOT regulations (49 CFR 5.13(a)). Accordingly, OMB has 
not reviewed it under these Orders.
    This proposal would (1) remove the restriction allowing a State to 
administer the CDL skills test to a CLP holder who is domiciled in 
another State only if the applicant obtained training in the testing 
State; (2) permit a CLP holder who has passed the CDL skills test to 
operate a CMV on public roads for purposes other than BTW training, 
provided the CLP holder has evidence of passing the CDL skills test and 
a qualified CDL holder is physically present in the CMV; (3) eliminate 
the requirement that an applicant wait at least 14 days to take the CDL 
skills test following initial issuance of the CLP; (4) establish 
qualification requirements for third-party CDL knowledge examiners and 
auditing and monitoring requirements for States that authorize third-
party knowledge testing; and (5) remove the requirement that a CDL 
holder have a P endorsement when a passenger CMV is being transported 
from the manufacturer to a distributor, or in a driveaway-towaway 
operation, and the vehicle is not carrying any passengers. As discussed 
below, FMCSA believes these changes would improve the efficiency and 
convenience of CDL issuance, provide needed flexibility for CLP holders 
who have demonstrated their ability to safely operate a CMV by passing 
the CDL skills test, and improve highway safety by ensuring the 
integrity of third-party CDL knowledge testing. The proposed rule could 
affect States, third-party knowledge examiners, CDL applicants, P 
endorsement applicants, and motor carriers.
States
    States that currently choose to allow third-party knowledge testing 
in their jurisdiction could be impacted by this rule to the extent that 
the proposed requirements differ from current State practices. In 
accordance with regulatory guidance adopted on February 3, 2022, States 
may authorize the use of third-party knowledge examiners as long as 
they adhere to the CDL knowledge test standards and requirements set 
forth in 49 CFR part 383, subparts G and H. FMCSA does not presently 
impose other regulatory requirements on States' use of third-party 
knowledge testing; the NPRM would establish such standards. FMCSA is 
aware that following publication of the February 3 guidance, at least 
one State passed legislation authorizing third-party skills testers to 
administer the CDL knowledge tests in that State. The Agency does not 
know whether other States currently permit third-party knowledge 
testing and requests comment from States that may currently allow this 
practice. Under the proposal, the decision by an SDLA to permit third-
party examiners to provide knowledge tests would be discretionary, and 
FMCSA is therefore unable to predict how many SDLAs would permit third-
party examiners to administer the CDL knowledge tests. FMCSA cannot 
predict the number of States that would permit third-party testing as 
proposed in the NPRM, but requests comment on the number of States that 
would do so.
Third-Party Examiners
    Based on a survey conducted by American Association of Motor 
Vehicles Administrators (AAMVA) to which 38 States responded,\9\ FMCSA 
estimates that there are over 3,000 third-party skills test examiners. 
FMCSA assumes that some of these existing third-party skills examiners 
would also become third-party knowledge examiners, but does not have a 
basis to estimate the number of third-party knowledge examiners 
resulting from this rule.
---------------------------------------------------------------------------

    \9\ Information collected by U.S. Department of Transportation 
(DOT), Federal Motor Carrier Safety Administration (FMCSA) in March 
2021 from the American Association of Motor Vehicles Administrators 
(AAMVA).
---------------------------------------------------------------------------

CDL Knowledge Test Applicants
    A CDL applicant must hold a CLP in order to take the CDL skills 
test. FMCSA estimates that approximately 600,000 to 700,000 CLPs are 
issued annually nationwide. This estimate is based primarily on 
information from the Commercial Driver's License Information System 
(CDLIS), a nationwide computer system, administered by the American 
Association of Motor Vehicle Administrators, that enables SDLAs to 
ensure that each commercial driver has only one driver's license and 
one complete driver record. A master pointer record is typically added 
to CDLIS within 10 days of issuing a CLP to a driver who is believed to 
have never held one previously, and is therefore a reasonable proxy for 
estimating the number of CDL knowledge test applicants. However, FMCSA 
does not anticipate that all of these CDL knowledge test applicants 
would be impacted by this rule.
    FMCSA notes that, because the Agency cannot estimate the number of 
States that would choose to permit third-party knowledge examiners in 
accordance with the proposed rule, the extent to which this population 
would be affected by the proposed rule is unknown.
Motor Carriers
    The proposal would permit a CLP holder who has passed the CDL 
skills test but has not yet been issued the CDL credential to operate a 
CMV for purposes other than BTW training without being accompanied by a 
CDL holder in the front passenger seat or, in the case of a passenger-
carrying CMV, directly behind or in the first row behind the driver, as 
long as a CDL holder is present in the vehicle. Motor carriers may be 
affected by this proposal, if they currently employ CLP drivers that 
have passed the skills test but have not yet obtained the CDL 
credential from their State of domicile. Other than the number of 
impacted drivers estimated in the exemption applications submitted by 
CRST, CR England, and Prime, FMCSA is unable to predict the overall 
population of drivers that could be impacted by this provision. 
Additionally, FMCSA does not know how many CLP holders have passed 
their skills test but have not yet received their CDL credential, or 
how many trips would be affected by this proposed change.
Costs, Benefits and Transfer Payments
Costs
    This proposal would remove current regulatory restrictions related 
to CDLs and CLPs and impose standards for third-party knowledge 
examiners and monitoring and auditing requirements applicable to States 
choosing to allow third-party knowledge testing. It could result in 
costs to third-party examiners and States, and may result in savings to 
motor carriers and drivers.

[[Page 7338]]

    Under the proposal, third-party knowledge examiners would be 
required to take a 20-hour training course every 3 years in order to 
administer knowledge tests. There is not a specific skill set required 
to be a knowledge test examiner, and many different occupations could 
proctor knowledge test exams. For illustrative purposes, FMCSA 
estimates that training and development managers (BLS 11-3131) with a 
fully loaded wage rate of $99 ($99 = $57.69 + ($57.69 x 0.505 fringe 
benefit rate) + ($57.69 x 0.21 overhead rate) would undergo the 20-hour 
training course and become third-party knowledge test examiners.\10\ 
FMCSA assumes that this training is provided online and would not 
require travel expenses. Therefore, the cost for each examiner would be 
$1,980 ($99 x 20). FMCSA estimates that \1/3\ of the 14,000 examiners, 
or 4,667, would take the training each year, at a cost of approximately 
$9.2 million per year, or $92.4 million over the 10-year analysis 
period. FMCSA estimates that the 10-year cost of this provision would 
total $81 million discounted at 3 percent, and $69 million discounted 
at 7 percent. Annualized costs would total $9.24 million discounted at 
3 percent and $9.24 million discounted at 7 percent (all in 2021 
dollars). FMCSA proposes to further require that the State certify that 
each third-party knowledge examiner has completed a formal CDL 
knowledge test examiner training course.
---------------------------------------------------------------------------

    \10\ U.S. Department of Labor (DOL), Bureau of Labor Statistics 
(BLS). Occupational Employment and Wage Statistics (OEWS). National. 
May 2022. Available at: https://www.bls.gov/oes/current/oes_nat.htm 
(accessed September 8th, 2023).
---------------------------------------------------------------------------

    FMCSA is proposing that knowledge tests be administered 
electronically but is not proposing requirements on the physical 
location of the knowledge testing site. For instance, FMCSA could 
require that knowledge tests are taken in person at a designated 
physical location other than the SDLA or allow third-party knowledge 
test administrators to proctor exams without a State employee being 
present. FMCSA requests comments on these alternatives, and whether 
remote physical testing site requirements should be adopted.
    States that opt to allow third-party knowledge testing would be 
required to develop an auditing and monitoring program to ensure the 
integrity of the knowledge testing program. FMCSA assumes that States 
with existing third-party skills testing programs already have auditing 
programs in place. FMCSA requests comment on the additional burden of 
creating a third-party knowledge testing auditing process for these 
States. FMCSA also requests comment on whether States that do not have 
third-party skills testing programs would initiate a third-party 
knowledge testing program, and on the cost to set up and administer an 
auditing program. Further, at least one State has indicated that the 
proposed changes could reduce demands on SDLA service centers, 
resulting in a cost savings, by a reduction in State-administered 
knowledge exams. FMCSA requests comment on this issue. FMCSA invites 
comment on whether the Agency should include State knowledge examiners 
in the auditing and monitoring requirements proposed for third-party 
knowledge examiners, which would be a new requirement imposed on 
States. FMCSA seeks comment on costs associated with any existing 
auditing and monitoring programs that States may have for knowledge 
test examiners, and on the additional costs that would result should 
FMCSA impose such requirements.
    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 HOS rules that would otherwise be lost riding in 
the passenger seat, overseeing the CLP holder. 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 
does not know how many CLP drivers pass their skills test but do not 
immediately receive their CDL credential, nor does FMCSA know the 
number of vehicle miles or trips that might be impacted by this rule. 
As such, FMCSA cannot estimate the cost savings that could result from 
this provision but requests comment on the impact of this proposed 
change.
    Lastly, this proposed rule clarifies that CDL holders who have not 
obtained the P endorsement may operate an empty passenger CMV, 
including a school bus, from the manufacturer to the distributor or in 
a driveaway-towaway operation. This proposed change, which is 
consistent with FMCSA's current enforcement policy, reflects the fact 
that the P endorsement is intended primarily to ensure the driver has 
the necessary skills and knowledge to safely transport and evacuate 
passengers. The proposed regulatory change would clarify that the 
driver is not required to have a P endorsement when transporting an 
empty passenger CMV, which could allow for an increase in cost savings 
without impacting passenger safety. Motor carriers would no longer need 
to incur the expense of having the vehicle towed to the repair site or 
locating a driver with a P endorsement on their CDL who can drive the 
CMV to the repair site. The proposed amendment would ensure consistency 
of enforcement and broaden stakeholder awareness of this flexibility.
Benefits
    As discussed above, FMCSA believes that the proposal would improve 
highway safety by enhancing the integrity of third-party CDL knowledge 
testing. The proposal would also create positive change for drivers, 
industry stakeholders, and SDLAs by expanding knowledge and skills test 
accessibility, permitting CDL holders to operate empty passenger CMVs 
in limited circumstances without obtaining the P endorsement, and 
eliminating the 14-day waiting period between receiving a CLP and 
taking the CDL skills test.
    Third-party knowledge testing would provide additional flexibility 
for CLP applicants, who may be able to obtain their CLP sooner from a 
third-party examiner than by taking the tests at the SDLA. The 
knowledge tests administered by third-party examiners would be subject 
to the same testing standards and methods used by State knowledge 
examiners, as set forth in 49 CFR part 383 subparts G and H. The NPRM 
proposes that knowledge tests given by third parties be administered 
electronically, minimizing opportunity for fraud.
    The proposal would expand the States' discretion to provide skills 
testing to out-of-State applicants, regardless of the State in which 
training was obtained. This provision would expand skills test 
accessibility, allowing applicants to obtain a CDL sooner by scheduling 
the skills test in a State with shorter waiting times. All States must 
conduct skills testing, in accordance with the uniform minimum 
requirements set forth in 49 CFR part 383, subparts G and H. Thus, the 
State in which skills testing occurs does not impact how the driver's 
skills are evaluated during the test.
    The P endorsement is intended to ensure that the driver has the 
knowledge and skills necessary to safely transport passengers and to 
evacuate the CMV in case of emergency. The proposed change would 
therefore enhance flexibility in the transport of empty passenger CMVs 
to distributors, dealers, purchasers, and repair facilities without 
compromising passenger safety.
    Lastly, the elimination of the mandatory 14-day waiting period 
between initial issuance of the CLP and taking the CDL skills test 
would permit

[[Page 7339]]

applicants who successfully complete the performance-based BTW range 
and road training in less than 14 days to obtain a CDL and be 
productively employed sooner than they can today. Following the 
implementation of the ELDT regulations in February 2022, this waiting 
period is no longer necessary. The Agency has not identified any other 
positive or negative benefits to society that would result from this 
proposed change to Sec.  383.25(e).
Transfer Payments
    There are also certain transfer payment effects that may occur as a 
result of this proposed rule. Transfer payments are monetary payments 
from one group to another that do not affect total resources available 
to society, and therefore do not represent actual costs or benefits of 
the rule. SDLAs currently incur costs and receive fees to administer 
knowledge tests to CLP applicants. If a State chooses to allow third-
party examiners to administer the knowledge test to CLP applicants, CLP 
applicants would no longer be required to take the knowledge test at 
the SDLA, streamlining the process to begin CDL driver training. In 
this instance, the cost of providing the knowledge test and the 
associated revenue for the provision of that service would be 
transferred to the third-party tester. The Agency is unable to predict 
the amount of these transfer payments as they would occur only in those 
States allowing third-party examiners to administer the knowledge test.

B. Congressional Review Act

    This rule is not a major rule as defined under the Congressional 
Review Act (5 U.S.C. 801-808).\11\
---------------------------------------------------------------------------

    \11\ A major rule means any rule that OMB finds has resulted in 
or is likely to result in (a) an annual effect on the economy of 
$100 million or more; (b) a major increase in costs or prices for 
consumers, individual industries, geographic regions, Federal, 
State, or local government agencies; or (c) significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and export 
markets (49 CFR 389.3).
---------------------------------------------------------------------------

C. Advance Notice of Proposed Rulemaking

    Under 49 U.S.C. 31136(g), FMCSA is required to publish an advance 
notice of proposed rulemaking (ANPRM) or proceed with a negotiated 
rulemaking, if a proposed rule is likely to lead to the promulgation of 
a major rule. As this proposed rule is not likely to result in the 
promulgation of a major rule, the Agency is not required to issue an 
ANPRM or to proceed with a negotiated rulemaking.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA), as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996,\12\ requires Federal agencies to consider the effects of the 
regulatory action on small business and other small entities and to 
minimize any significant economic impact. The term small entities 
comprises small businesses and not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000 (5 
U.S.C. 601(6)). Accordingly, DOT policy requires an analysis of the 
impact of all regulations on small entities, and mandates that agencies 
strive to lessen any adverse effects on these businesses.
---------------------------------------------------------------------------

    \12\ Public Law 104-121, 110 Stat. 857 (Mar. 29, 1996).
---------------------------------------------------------------------------

Affected Small Entities
    This rule has the potential to impact States, third-party knowledge 
examiners, CDL skills test applicants, and motor carriers. Under the 
standards of the RFA, as amended, States are not small entities because 
they do not meet the definition of a small entity in section 601 of the 
RFA. Specifically, States are not small governmental jurisdictions 
under section 601(5) of the RFA, both because State government is not 
among the various levels of government listed in section 601(5), and 
because, even if this were the case, no State, including the District 
of Columbia, has a population of less than 50,000, which is the 
criterion to be a small governmental jurisdiction under section 601(5) 
of the RFA.
    CDL applicants are not considered small entities because they do 
not meet the definition of a small entity in Section 601 of the RFA. 
Specifically, drivers are considered neither a small business under 
Section 601(3) of the RFA nor a small organization under Section 
601(4).
    Under the RFA, as amended, motor carriers and third-party knowledge 
testers may be considered small entities based on the SBA-defined size 
standards used to classify entities as small. SBA establishes separate 
standards for each industry, as defined by the North American Industry 
Classification System (NAICS). This rule could affect motor carriers in 
many different industry sectors in addition to the Transportation and 
Warehousing sector (NAICS sectors 48 and 49); for example, the 
Construction sector (NAICS sector 23), the Manufacturing sector (NAICS 
sectors 31, 32, and 33), and the Retail Trade sector (NAICS sectors 44 
and 45). FMCSA anticipates that third-party knowledge testers would 
largely be employed by testing entities that currently employ third-
party skills examiners. Many third-party skills examiners are also 
training providers at universities, technical and trade schools, and 
other training focused institutions that operate within the Educational 
Services sector (NAICS sector 61). Industry groups within these sectors 
have size standards for qualifying as small based on the number of 
employees (e.g., 500 employees), or on the amount of annual revenue 
(e.g., $27.5 million in revenue). Not all entities within these 
industry sectors will be impacted by this rule, and therefore FMCSA 
cannot determine the number of small entities based on the SBA size 
standards.
Impact
    CDL knowledge test examiners may incur training costs in order to 
provide knowledge test exams to CLP applicants. To determine if this 
impact would be significant, FMCSA considers the impact as a percentage 
of annual revenue and estimates the impact to be significant if it 
surpasses one percent of revenue. For each knowledge test examiner, the 
knowledge tester would incur an opportunity cost of approximately 
$1,980 ($99 x 20 hours). The knowledge test examiner would need to have 
annual revenue below $198,000 ($1,980 / 0.01) in order for this impact 
to reach the threshold of significance. Similarly, if a knowledge test 
examiner employed 10 affected employees, the annual opportunity cost 
would be $19,800 ($99 x 20 hours x 10 examiners) and would need to have 
annual revenue below $1.9 million in order for the impact to be 
considered significant. FMCSA considers it unlikely that a CDL 
knowledge tester would be able to operate with such low revenues, and 
as such does not anticipate that this rule would result in a 
significant impact on small CDL knowledge testers.
    Motor carriers could experience opportunity cost savings if team 
drivers can work more efficiently when a driver with a CLP can operate 
the CMV after passing the skills test but before receiving the CDL 
credential. For example, a CDL holder could rest in the sleeper berth 
while the CLP driver with proof of a passing CDL skills test could 
operate the vehicle in a wage-earning capacity. FMCSA does not know how 
many CLP drivers pass their skills test but do not immediately receive 
their CDL credential, nor does FMCSA know the number of vehicle miles 
or trips that

[[Page 7340]]

might be impacted by this rule. As such, FMCSA cannot estimate the cost 
savings that could result from this provision but anticipates that any 
cost savings would be below one percent of annual revenue for most 
motor carriers.
    Therefore, I hereby certify that this rule will not have a 
significant impact on a substantial number of small entities.

E. Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996,\13\ FMCSA wants to assist small 
entities in understanding this proposed rule so they can better 
evaluate its effects on themselves and participate in the rulemaking 
initiative. If the proposed rule would affect your small business, 
organization, or governmental jurisdiction and you have questions 
concerning its provisions or options for compliance, please consult the 
person listed under FOR FURTHER INFORMATION CONTACT.
---------------------------------------------------------------------------

    \13\ Public Law 104-121, 110 Stat. 857 (Mar. 29, 1996).
---------------------------------------------------------------------------

    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the Small Business Administration's Small Business and 
Agriculture Regulatory Enforcement Ombudsman (Office of the National 
Ombudsman, see https://www.sba.gov/about-sba/oversight-advocacy/office-national-ombudsman) and the Regional Small Business Regulatory Fairness 
Boards. The Ombudsman evaluates these actions annually and rates each 
agency's responsiveness to small business. If you wish to comment on 
actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247). 
DOT has a policy regarding the rights of small entities to regulatory 
enforcement fairness and an explicit policy against retaliation for 
exercising these rights.

F. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
(UMRA) requires Federal agencies to assess the effects of their 
discretionary regulatory actions. The Act addresses actions that may 
result in the expenditure by a State, local, or Tribal Government, in 
the aggregate, or by the private sector of $192 million (which is the 
value equivalent of $100 million in 1995, adjusted for inflation to 
2022 levels) or more in any 1 year. Though this NPRM would not result 
in such an expenditure, and the analytical requirements of UMRA do not 
apply as a result, the Agency discusses the effects of this rule 
elsewhere in this preamble.

G. Paperwork Reduction Act

    This proposed rule contains information collection requirements 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As 
defined in 5 CFR 1320.3(c), collection of information comprises 
reporting, recordkeeping, monitoring, posting, labeling, and other 
similar actions. The title and description of the information 
collection, a description of those who must collect the information, 
and an estimate of the total annual burden follow. The estimate covers 
the time for reviewing instructions, searching existing sources of 
data, gathering and maintaining the data needed, and completing and 
reviewing the collection.
    Title: Commercial Driver Licensing and Testing Standards.
    OMB Control Number: 2126-0011.
    Summary of the Information Collection: This is to request OMB's 
approval for the revision of the information collection titled 
``Commercial Driver Licensing and Testing Standards,'' which is 
currently due to expire on April 30, 2025. This ICR is being updated to 
account for the proposed changes to regulatory requirements in the 
``Amendments to the Commercial Driver's License Requirements; Increased 
Flexibility for Testing and for Drivers After Passing the Skills Test'' 
NPRM, as well as updated and more recent data that has become available 
following the approval of the current supporting statement. This 
current submission includes all information collection requirements 
contained in title 49 CFR part 383, titled ``Commercial Driver's 
License Standards; Requirements and Penalties'' and title 49 CFR part 
384 titled, ``State Compliance with Commercial Driver's License 
Program.''
    Need for Information: The licensed drivers in the United States 
deserve reasonable assurances that their fellow motorists are properly 
qualified to drive the vehicles they operate. In section 12005 of the 
CMVSA, the Secretary is required to develop minimum Federal standards 
for testing and licensing of operators of CMVs. Section 12007 of the 
Act also directed the Secretary, in cooperation with the States, to 
develop a clearinghouse to aid the States in implementing the one 
driver, one license, and one driving record requirement. This 
clearinghouse is known as CDLIS.
    The CMVSA further required each person who has their CDL suspended, 
revoked, or canceled by a State, or who is disqualified from operating 
a CMV for any period, to notify his or her employer of such actions. 
Drivers of CMVs must notify their employers within 1 business day of 
being notified of the license suspension, revocation, and cancellation, 
or of the lost right to operate or disqualification. These requirements 
are reflected in 49 CFR part 383, titled ``Commercial Driver's License 
Standards; Requirements and Penalties.'' Specifically, Sec.  383.21 
prohibits a person from having more than one license; Sec.  383.31 
requires notification of convictions for driver violations; Sec.  
383.33 requires notification of driver's license suspensions; Sec.  
383.35 requires notification of previous employment; and Sec.  383.37 
outlines employer responsibilities. Section 383.111 requires the 
passing of a knowledge test by the driver and Sec.  383.113 requires 
the passing of a skills test by the driver. Section 383.115 contains 
the requirement for the double/triple trailer endorsement; Sec.  
383.117 contains the requirement for the P endorsement; Sec.  383.119 
contains the requirement for the tank vehicle endorsement; and Sec.  
383.121 contains the requirement for the hazardous materials 
endorsement.
    Currently, FMCSA is proposing to revise the regulations at 49 CFR 
383 and 384 to increase flexibility for SDLAs and CDL applicants by: 
(1) removing the restriction allowing a State to administer the CDL 
skills test to a CLP holder who is domiciled in another State only if 
the applicant obtained training in the testing State; (2) permitting a 
CLP holder who has passed the CDL skills test to operate a CMV on 
public roads for purposes other than BTW training, provided the CLP 
holder has evidence of passing the CDL skills test and a qualified CDL 
holder is physically present in the CMV; (3) eliminating the 
requirement that an applicant wait at least 14 days to take the CDL 
skills test following initial issuance of the CLP; and (4) removing the 
requirement that CMV drivers must have a passenger (P) endorsement to 
transport CMVs designed to carry passengers, including school buses, 
when the vehicle is being transported in a driveaway-towaway operation 
and the vehicle is not carrying any passengers. Additionally, the NPRM 
proposes that third-party knowledge examiners be subject to the 
training, certification, and record check standards currently 
applicable to State knowledge examiners and the auditing and monitoring 
requirements now applicable to third-party skills testers.

[[Page 7341]]

    Proposed Use of Information: State officials use the information 
collected on the license application form (Sec.  383.71) that is posted 
to the CDLIS driver record, the information collected on the CLP 
application form that is posted to the CDLIS driver record (Sec.  
383.71), and the conviction and disqualification data posted to the 
CDLIS driver record (Sec.  383.73) to prevent ineligible, not-
qualified, and/or disqualified CLP and CDL holders and applicants from 
operating CMVs on the nation's highways. State officials are required 
to adopt and administer an FMCSA approved program for testing and 
ensuring the fitness of persons to operate a CMVs (Sec.  384.201). 
State officials are also required to administer knowledge and skills 
tests to CDL driver applicants (Sec.  384.202). The driver applicant is 
required to correctly answer at least 80 percent of the questions on 
each knowledge test in order to achieve a passing score on that test. 
To achieve a passing score on the skills test, the driver applicant 
must demonstrate that he/she can successfully perform all of the skills 
listed in the regulations. During State CDL compliance reviews, FMCSA 
officials review this information to ensure that the provisions of the 
regulations are being carried out. Without the aforementioned 
requirements, there would be no uniform control over driver licensing 
practices to prevent uncertified and/or disqualified drivers from being 
issued a CLP or CDL and to prevent unsafe drivers from spreading their 
convictions among several licenses in several States and remaining 
behind the wheel of a CMV. Failure to collect this information would 
render the regulations unenforceable.
    Description of the Respondents: Drivers with a CLP or CDL and 
SDLAs.
    Number of Respondents: 7,753,798 (7,712,074 CDL + 41,724 SDLAs).
    Frequency of Response: Annual.
    Burden of Response: 26,206,651 responses (7,925,642 CDL + 
18,281,008 SDLAs). The associated cost burden is $103,725,614 
($71,424,225 CDL + $32,301,389 SDLAs).
    Estimate of Total Annual Burden: 2,858,202 hours (2,067,271 CDL + 
790,931 SDLAs).
    In accordance with 44 U.S.C. 3507(d), FMCSA will submit the 
proposed information collection amendments to OIRA at OMB for its 
approval.
    The Agency requests comment on any aspect of this information 
collection, including: (1) Whether the proposed collection is necessary 
for FMCSA to perform its functions; (2) the accuracy of the estimated 
burden; (3) ways for FMCSA to enhance the quality, usefulness, and 
clarity of the collected information; and (4) ways that the burden 
could be minimized without reducing the quality of the collected 
information.

H. E.O. 13132 (Federalism)

    A rule has implications for federalism under section 1(a) of E.O. 
13132 if it has ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' FMCSA has determined that this rule would not have 
substantial direct costs on or for States, nor would it limit the 
policymaking discretion of States. Nothing in this document preempts 
any State law or regulation. The changes proposed in the NPRM would 
increase flexibility for SDLAs in scheduling of CDL skills testing 
appointments and for States opting to offer CDL skills testing to out-
of-State applicants. The NPRM could also reduce the number of P 
endorsements issued by the SDLAs. The proposed training, record check, 
and oversight requirements, currently applicable to States opting to 
rely on third-party skills testers, similarly would apply only to 
States choosing to permit third-party knowledge testing. Therefore, 
this rule does not have sufficient federalism implications to warrant 
the preparation of a Federalism Impact Statement.

I. Privacy

    The Consolidated Appropriations Act, 2005,\14\ requires the Agency 
to assess the privacy impact of a regulation that will affect the 
privacy of individuals. This NPRM would not require the collection of 
personally identifiable information (PII). The Privacy Act (5 U.S.C. 
552a) applies only to Federal agencies and any non-Federal agency that 
receives records contained in a system of records from a Federal agency 
for use in a matching program.
---------------------------------------------------------------------------

    \14\ Public Law 108-447, 118 Stat. 2809, 3268, note following 5 
U.S.C. 552a (Dec. 4, 2014).
---------------------------------------------------------------------------

    The E-Government Act of 2002,\15\ requires Federal agencies to 
conduct a Privacy Impact Assessment (PIA) for new or substantially 
changed technology that collects, maintains, or disseminates 
information in an identifiable form. No new or substantially changed 
technology would collect, maintain, or disseminate information as a 
result of this rule. Accordingly, FMCSA has not conducted a PIA.
---------------------------------------------------------------------------

    \15\ Public Law 107-347, sec. 208, 116 Stat. 2899, 2921 (Dec. 
17, 2002).
---------------------------------------------------------------------------

    In addition, the Agency submitted a Privacy Threshold Assessment 
(PTA) to evaluate the risks and effects the proposed rulemaking might 
have on collecting, storing, and sharing personally identifiable 
information. The Agency will complete a PTA to evaluate the risks and 
effects the proposed rulemaking might have on collecting, storing, and 
sharing personally identifiable information. The PTA has been submitted 
to FMCSA's Privacy Officer for review and preliminary adjudication and 
to DOT's Privacy Officer for review and final adjudication.

J. E.O. 13175 (Indian Tribal Governments)

    This rule does not have Tribal implications under E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, because 
it does not have a substantial direct effect on one or more Indian 
Tribes, on the relationship between the Federal Government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian Tribes.

K. National Environmental Policy Act of 1969

    FMCSA analyzed this proposed rule pursuant to the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and 
determined this action is categorically excluded from further analysis 
and documentation in an environmental assessment or environmental 
impact statement under FMCSA Order 5610.1 (69 FR 9680), Appendix 2, 
paragraphs (6)(s)(6) and (7). The categorical exclusions (CEs) in 
paragraphs (6)(s)(6) and (7) cover requirements pertaining to providing 
knowledge and skills tests to qualified applicants for commercial 
drivers' licenses and requirements for State-issued commercial license 
documentation. The proposed requirements in this rule are covered by 
these CEs.

List of Subjects

49 CFR Part 383

    Administrative practice and procedure, Alcohol abuse, Drug abuse, 
Drug testing, Highway safety, Motor carriers, Penalties, Safety, 
Transportation.

49 CFR Part 384

    Administrative practice and procedure, Alcohol abuse, Drug abuse, 
Highway safety, Motor carriers.


[[Page 7342]]


    Accordingly, FMCSA proposes to amend 49 CFR chapter III, parts 383 
and 384 as follows:

PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND 
PENALTIES

0
1. The authority citation for part 383 continues to read as follows:

    Authority:  49 U.S.C. 521, 31136, 31301 et seq., and 31502; 
secs. 214 and 215 of Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; 
sec. 1012(b) of Pub. L. 107-56, 115 Stat. 272, 297, sec. 4140 of 
Pub. L. 109-59, 119 Stat. 1144, 1746; sec. 32934 of Pub. L. 112-141, 
126 Stat. 405, 830; sec. 23019 of Pub. L. 117-58, 135 Stat. 429, 
777; and 49 CFR 1.87.

0
2. Amend Sec.  383.5 by:
0
a. Adding, in alphabetical order, definitions for third-party knowledge 
examiner, third-party knowledge tester, and third-party skills tester;
0
b. Adding a hyphen between the words ``third'' and ``party'' in the 
definition of third party skills test examiner; and
0
c. Removing the definition of third party tester.
    The additions read as follows:


Sec.  383.5   Definitions.

* * * * *
    Third-party knowledge examiner means a person employed by a third-
party tester who is authorized by the State to administer the CDL 
knowledge tests specified in subparts G and H of this part.
    Third-party knowledge tester means a person (including, but not 
limited to, another State, a motor carrier, a private driver training 
facility or other private institution, or a department, agency or 
instrumentality of a local government) authorized by the State to 
employ knowledge test examiners to administer the CDL knowledge tests 
specified in subparts G and H of this part.
* * * * *
    Third-party skills tester means a person (including, but not 
limited to, another State, a motor carrier, a private driver training 
facility or other private institution, or a department, agency, or 
instrumentality of a local government) authorized by the State to 
employ skills test examiners to administer the CDL skills tests 
specified in subparts G and H of this part.
* * * * *
0
3. Amend Sec.  383.25 by:
0
a. Revising paragraph (a)(1); and
0
b. Removing paragraph (e).
    The revision reads as follows:


Sec.  383.25   Commercial learner's permit (CLP).

    (a) * * *
    (1) The CLP holder is at all times accompanied by the holder of a 
valid CDL who has the proper CDL group and endorsement(s) necessary to 
operate the CMV. The CDL holder must at all times be physically present 
in the front seat of the vehicle next to the CLP holder or, in the case 
of a passenger vehicle, directly behind or in the first row behind the 
driver and must have the CLP holder under observation and direct 
supervision. Exception: A CLP holder who has passed the CDL skills test 
may operate a CMV on public roads or highways for purposes other than 
behind-the wheel training without the holder of a valid CDL of the 
proper class and with all proper endorsements being present in the 
front seat of the CMV or, in the case of a passenger vehicle, directly 
behind or in the first row behind the driver, provided the CDL holder 
is physically present elsewhere in the CMV. The CLP holder must also 
possess documentary evidence from the testing State (including a third-
party skills tester authorized by the State) that they have passed the 
CDL skills test.
* * * * *
0
4. Revise Sec.  383.75 to read as follows:


Sec.  383.75   Third-party skills and knowledge testing.

    (a) Third-party skills tests. A State may authorize a third-party 
tester to administer the skills tests as specified in subparts G and H 
of this part, if the following conditions are met:
    (1) The skills tests given by the third-party are the same as those 
that would otherwise be given by the State using the same version of 
the skills tests, the same written instructions for test applicants, 
and the same scoring sheets as those prescribed in subparts G and H of 
this part.
    (2) The State must conduct an on-site inspection of each third-
party skills tester at least once every 2 years, with a focus on 
examiners with irregular results such as unusually high or low pass/
fail rates.
    (3) The State must issue the third-party tester a CDL skills 
testing certificate upon the execution of a third-party skills testing 
agreement.
    (4) The State must issue each third-party CDL skills test examiner 
a skills testing certificate upon successful completion of a formal 
skills test examiner training course prescribed in Sec.  384.228.
    (5) The State must, at least once every 2 years, do one of the 
following for each third-party skills examiner:
    (i) Have State employees covertly take the skills tests 
administered by the third-party as if the State employee were a test 
applicant;
    (ii) Have State employees co-score along with the third-party 
examiner during CDL skills tests to compare pass/fail results; or
    (iii) Re-test a sample of drivers who were examined by the third-
party to compare pass/fail results.
    (6) The State must take prompt and appropriate remedial action 
against a third-party skills tester that fails to comply with State or 
Federal standards for the CDL testing program, or with any other terms 
of the third-party contract.
    (7) A skills test examiner who is also a skills instructor either 
as a part of a school, training program or otherwise is prohibited from 
administering a skills test to an applicant who received skills 
training by that skills test examiner.
    (8) The State must revoke the skills testing certification of any 
examiner who does not conduct skills test examinations of at least 10 
different applicants per calendar year. Exception: Examiners who do not 
meet the 10-test minimum must either take the refresher training 
specified in Sec.  384.228 of this chapter or have a State examiner 
ride along to observe the third-party examiner successfully administer 
at least one skills test.
    (9) The State has an agreement with the third-party tester 
containing, at a minimum, provisions that:
    (i) Allow FMCSA, or its representative, and the State to conduct 
random examinations, inspections, and audits of its records, 
facilities, and operations without prior notice;
    (ii) Require that all third-party skills test examiners meet the 
qualification and training standards of Sec.  384.228;
    (iii) Allow the State to do any of the following:
    (A) Have State employees covertly take the skills tests 
administered by the third-party as if the State employee were a test 
applicant;
    (B) Have State employees co-score along with the third-party 
examiner during CDL skills tests to compare pass/fail results; or
    (C) Have the State re-test a sample of drivers who were examined by 
the third-party.
    (iv) Reserve unto the State the right to take prompt and 
appropriate remedial action against a third-party skills tester that 
fails to comply with State or Federal standards for the CDL testing 
program, or with any other terms of the third-party contract;
    (v) Require the third-party skills tester to 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

[[Page 7343]]

conducting skills testing of applicants for a CDL. Exception: A third-
party tester that is a government entity is not required to maintain a 
bond;
    (vi) Require the third-party tester to use only CDL skills 
examiners who have successfully completed a formal CDL skills test 
examiner training course as prescribed by the State and have been 
certified by the State as a CDL skills examiner qualified to administer 
CDL skills tests;
    (vii) Require the third-party skills tester to use designated road 
test routes that have been approved by the State;
    (viii) Require the third-party tester to submit a schedule of CDL 
skills testing appointments to the State no later than two business 
days prior to each test; and
    (ix) Require the third-party skills tester to maintain copies of 
the following records at its principal place of business:
    (A) A copy of the State certificate authorizing the third-party 
tester to administer a CDL skills testing program for the classes and 
types of commercial motor vehicles listed;
    (B) A copy of each third-party examiner's State certificate 
authorizing the third-party examiner to administer CDL skills tests for 
the classes and types of commercial motor vehicles listed;
    (C) A copy of the current third-party skills tester agreement;
    (D) A copy of each completed CDL skills test scoring sheet for the 
current year and the past 2 calendar years;
    (E) A copy of the third-party tester's State-approved road test 
route(s); and
    (F) A copy of each third-party examiner's training record.
    (x) Require the third-party tester to notify the State driver 
licensing agency through secure electronic means when a driver 
applicant passes skills tests administered by the third-party tester.
    (b) Third-party knowledge tests. A State may authorize a third-
party tester to administer the knowledge tests as specified in subparts 
G and H of this part, if the following conditions are met:
    (1) The knowledge tests given by the third-party are the same as 
those that would otherwise be given by the State using the same version 
of the knowledge tests and the same written instructions for test 
applicants as prescribed in subparts G and H of this part. Exception: 
Knowledge tests given by a third-party knowledge examiner must be 
administered electronically;
    (2) The State must conduct an on-site inspection of each third-
party knowledge tester at least once every 2 years, with a focus on 
examiners with irregular results such as unusually high or low pass/
fail rates;
    (3) The State must issue the third-party knowledge tester a CDL 
knowledge testing certificate upon the execution of a third-party 
knowledge testing agreement;
    (4) The State must issue each third-party CDL knowledge test 
examiner a knowledge testing certificate upon successful completion of 
a formal knowledge test examiner training course prescribed in Sec.  
384.228;
    (5) The State must, at least once every 2 years, do one of the 
following for each third-party knowledge examiner:
    (i) Have State employees covertly take the knowledge tests 
administered by the third-party as if the State employee were a test 
applicant;
    (ii) Have State employees co-score along with the third-party 
examiner during CDL knowledge tests to compare pass/fail results; or
    (iii) Re-test a sample of drivers who were examined by the third-
party to compare pass/fail results.
    (6) The State must take prompt and appropriate remedial action 
against a third-party knowledge tester that fails to comply with State 
or Federal standards for the CDL knowledge testing program, or with any 
other terms of the third-party contract;
    (7) The State has an agreement with the third-party containing, at 
a minimum, provisions that:
    (i) Allow FMCSA, or its representative, and the State to conduct 
random examinations, inspections, and audits of its records, 
facilities, and operations without prior notice;
    (ii) Require that all third-party knowledge test examiners meet the 
qualification and training standards of Sec.  384.228;
    (iii) Allow the State to do any of the following:
    (A) Have State employees covertly take the knowledge tests 
administered by the third-party as if the State employee were a test 
applicant;
    (B) Have State employees co-score along with the third-party 
examiner during CDL knowledge tests to compare pass/fail results; or
    (C) Have the State re-test a sample of drivers who were examined by 
the third-party.
    (iv) Reserve unto the State the right to take prompt and 
appropriate remedial action against a third-party knowledge tester that 
fails to comply with State or Federal standards for the CDL knowledge 
testing program, or with any other terms of the third-party contract;
    (v) Require the third-party knowledge tester to 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. Exception: A 
third-party tester that is a government entity is not required to 
maintain a bond;
    (vi) Require the third-party tester to use only CDL knowledge 
examiners who have successfully completed a formal CDL knowledge test 
examiner training course as prescribed by the State and have been 
certified by the State as a CDL knowledge examiner qualified to 
administer CDL knowledge tests;
    (vii) Require the third-party knowledge tester to notify the State 
driver licensing agency through secure electronic means when a driver 
applicant passes knowledge tests administered by the third-party 
tester; and
    (viii) Require the third-party knowledge tester to maintain copies 
of the following records at its principal place of business:
    (A) A copy of the State certificate authorizing the third-party 
tester to administer a CDL knowledge testing program for the classes 
and types of commercial motor vehicles listed;
    (B) A copy of each third-party knowledge examiner's State 
certificate authorizing the third-party examiner to administer CDL 
knowledge tests for the classes and types of commercial motor vehicles 
listed;
    (C) A copy of the current third-party knowledge testing agreement; 
and
    (D) A copy of each third-party knowledge examiner's training 
record.
0
5. Revise Sec.  383.79(a)(1) to read as follows:


Sec.  383.79   Driving skills testing of out-of-State students; 
knowledge and driving skills testing of military personnel.

    (a) * * *
    (1) State that administers the driving skills test. A State may 
administer its driving skills test, in accordance with subparts F, G, 
and H of this part, to a person who is to be licensed in another United 
States jurisdiction (i.e., State of domicile). Such test results must 
be transmitted electronically directly from the testing State to the 
licensing State in a direct, efficient, and secure manner.
* * * * *
0
6. Add paragraph (d) to Sec.  383.93 to read as follows:


Sec.  383.93   Endorsements.

* * * * *
    (d) Exception. Operators are not required to obtain the passenger 
(P) endorsement to their CDL if the following conditions are met:
    (1) A commercial motor vehicle designed to transport passengers,

[[Page 7344]]

including a school bus, is being transported from the manufacturer to a 
distributor or as part of a driveaway-towaway operation, as defined in 
Sec.  390.5T of this subchapter; and
    (2) The vehicle is empty of all passengers except the driver.

PART 384--STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM

0
7. The authority citation for part 384 continues to read as follows:

    Authority:  49 U.S.C. 31136, 31301, et seq., and 31502; secs. 
103 and 215 of Pub. L. 106-159, 113 Stat. 1748, 1753, 1767; sec. 
32934 of Pub. L. 112-141, 126 Stat. 405, 830; sec. 5524 of Pub. L. 
114-94, 129 Stat. 1312, 1560; and 49 CFR 1.87.

0
8. Revise Sec.  384.228 to read as follows:


Sec.  384.228   Examiner training and record checks.

    For all State and third-party CDL test examiners, the State must 
meet the following 10 requirements:
    (a) Establish examiner training standards for initial and refresher 
training that provides CDL test examiners with a fundamental 
understanding of the objectives of the CDL testing program, and with 
all of the knowledge and skills necessary to serve as a CDL test 
examiner and assist jurisdictions in meeting the Federal CDL testing 
requirements.
    (b) Require all State knowledge and skills test examiners to 
successfully complete a formal CDL test examiner training course and 
examination before certifying them to administer CDL knowledge and 
skills tests.
    (c) The training course for CDL knowledge test examiners, including 
third-party knowledge test examiners, must cover at least the following 
three units of instruction:
    (1) Introduction to CDL Licensing System:
    (i) The Commercial Motor Vehicle Safety Act of 1986.
    (ii) Drivers covered by CDL program.
    (iii) CDL vehicle classification.
    (iv) CDL endorsements and restrictions.
    (2) Overview of the CDL tests:
    (i) CDL test, classifications, and endorsements.
    (ii) Different examinations.
    (iii) Representative vehicles.
    (iv) Validity and reliability.
    (v) Test maintenance.
    (3) Knowledge tests:
    (i) General knowledge tests.
    (ii) Specialized knowledge tests.
    (iii) Selecting the appropriate tests and test forms.
    (iv) Knowledge test administration.
    (4) Exception. Current third-party skills testers who have 
maintained their CDL test examiner certification are not required to 
complete the units of instruction set forth in paragraphs (c)(1) and 
(2) of this section.
    (d) The training course for CDL skills test examiners must cover at 
least the following five units of instruction:
    (1) Introduction to CDL Licensing System:
    (i) The Commercial Motor Vehicle Safety Act of 1986.
    (ii) Drivers covered by CDL program.
    (iii) CDL vehicle classification.
    (iv) CDL endorsements and restrictions.
    (2) Overview of the CDL tests:
    (i) CDL test, classifications, and endorsements.
    (ii) Different examinations.
    (iii) Representative vehicles.
    (iv) Validity and reliability.
    (v) Test maintenance.
    (3) Vehicle inspection test:
    (i) Test overview.
    (ii) Description of safety rules.
    (iii) Test scoring procedures.
    (iv) Scoring standards.
    (v) Calculating final score.
    (4) Basic control skills testing:
    (i) Setting up the basic control skills course.
    (ii) Description of safety rules.
    (iii) General scoring procedures.
    (iv) Administering the test.
    (v) Calculating the score.
    (5) Road test:
    (i) Setting up the road test.
    (ii) Required maneuvers.
    (iii) Administering the road test.
    (iv) Calculating the score.
    (e) Require all third-party skills test examiners to successfully 
complete a formal CDL test examiner training course and examination 
before certifying them to administer CDL skills tests. The training 
course must cover at least the five units of instruction in paragraph 
(d) of this section.
    (f) Require State and third-party CDL knowledge and skills test 
examiners to successfully complete a refresher training course and 
examination every 4 years to maintain their CDL test examiner 
certification. The refresher training course must cover at least the 
following:
    (1) For CDL knowledge test examiners, including third-party 
knowledge test examiners, the three units of training described in 
paragraph (c) of this section.
    (2) For CDL skills test examiners, the five units of training 
described in paragraph (d) of this section.
    (3) Any State specific material and information related to 
administering CDL knowledge and skills tests.
    (4) Any new Federal CDL regulations, updates to administering the 
tests, and new safety related equipment on the vehicles.
    (g)(1) Complete nationwide criminal background check of all State 
and third-party test examiners at the time of hiring. Exception. For 
current third-party skills testers who have maintained their CDL test 
examiner certification and have already been subject to a nationwide 
criminal background check, a State is not required to complete the 
background check if the third-party skills test examiner also applies 
to become certified as a third-party knowledge test examiner.
    (2) Complete nationwide criminal background check of any State and 
third-party current test examiner who has not had a nationwide criminal 
background check.
    (3) Criteria for not passing the criminal background check must 
include at least the following:
    (i) Any felony conviction within the last 10 years; or
    (ii) Any conviction involving fraudulent activities.
    (h) Maintain a record of the results of the criminal background 
check and CDL examiner test training and certification of all CDL test 
examiners.
    (i) Rescind the certification to administer CDL tests of all test 
examiners who do not successfully complete the required refresher 
training every 4 years.
    (j) The eight units of training described in paragraphs (c) and (d) 
of this section may be supplemented with State-specific material and 
information related to administering CDL knowledge and skills tests.
0
9. Revise Sec.  384.229 to read as follows:


Sec.  384.229   Skills and knowledge test examiner auditing and 
monitoring.

    (a) To ensure the integrity of the CDL skills testing program, the 
State must:
    (1) At least once every 2 years, conduct unannounced, on-site 
inspections of third-party testers' and examiners' records, including 
comparison of the CDL skills test results of applicants who are issued 
CDLs with the CDL scoring sheets that are maintained in the third-party 
testers' files;
    (2) At least once every 2 years, conduct covert and overt 
monitoring of examinations performed by State and third-party CDL 
skills test examiners.
    (3) Establish and maintain a database to track pass/fail rates of 
applicants tested by each State and third-party CDL skills test 
examiner, in order to focus covert and overt monitoring on examiners 
who have unusually high pass or failure rates;

[[Page 7345]]

    (4) Establish and maintain a database of all third-party skills 
testers and examiners, which at a minimum tracks the dates and results 
of audits and monitoring actions by the State, the dates third-party 
skills testers were certified by the State, and name and identification 
number of each third-party CDL skills test examiner;
    (5) Establish and maintain a database of all State CDL skills 
examiners, which at a minimum tracks the dates and results of 
monitoring action by the State, and the name and identification number 
of each State CDL skills examiner; and
    (6) Establish and maintain a database that tracks skills tests 
administered by each State and third-party CDL skills test examiner's 
name and identification number.
    (b) To ensure the integrity of the CDL knowledge testing program, 
the State must:
    (1) At least once every 2 years, conduct unannounced, on-site 
inspections of third-party knowledge testers' and examiners' records;
    (2) At least once every 2 years, conduct covert and overt 
monitoring of examinations performed by third-party CDL knowledge test 
examiners;
    (3) Establish and maintain a database to track pass/fail rates of 
applicants tested by each third-party CDL knowledge test examiner, in 
order to focus covert and overt monitoring on examiners who have 
unusually high pass or failure rates;
    (4) Establish and maintain a database of all third-party knowledge 
testers and examiners, which at a minimum tracks the dates and results 
of audits and monitoring actions by the State, the dates third-party 
knowledge testers were certified by the State, and name and 
identification number of each third-party CDL knowledge test examiner; 
and
    (5) Establish and maintain a database that tracks knowledge tests 
administered by each State and the name and identification number of 
each third-party CDL knowledge test examiner.

    Issued under authority delegated in 49 CFR 1.87.
Robin Hutcheson,
Administrator.
[FR Doc. 2024-01710 Filed 2-1-24; 8:45 am]
BILLING CODE 4910-EX-P