FMCSA now allows CDL instructors to give skills tests to their own students, despite fraud, bias concerns

On Thursday, the Federal Motor Carrier Safety Administration (FMCSA) published a new rule that they say will make it easier for drivers to obtain a CDL, but there are some who have concerns about possible fraud.

On December 17, the FMCSA published a new Final Rule to allow a third party skills test examiner to administer the CDL skills test to applicants whom the examiner has also provided skills training, a practice previously prohibited under FMCSA regulations.

The Final Rule will go into effect 60 days after the publication in the Federal Register.

“Federal rules previously prohibited a third-party CDL skills instructor who is also authorized by the state to administer the CDL skills test from performing both the instruction and the qualifying testing for the same CDL applicant. The final rule announced today eliminates that restriction and permits states, at their discretion, to allow qualified third-party skills trainers to also conduct the skills testing for the same individual. This new rule is designed to alleviate testing delays and eliminate needless inconvenience and expense to the CDL applicant—without compromising safety,” the FMCSA says.

The FMCSA says that the new rule is expected to reduce skills testing delays and help drivers to obtain gainful employment sooner. The agency also argues that the new rule will benefit third party testers and CDL applicants by reducing the time and cost spent to complete skills testing.

“FMCSA believes this change will not undermine the integrity or effectiveness of CDL skills testing,” the agency said in a news release.

The FMCSA issued a Notice of Proposed Rulemaking on the third party skills test proposal in June 2020.

After publishing the NPRM, the agency received 95 public comments and that “most commenters opposed the NPRM, citing concerns about fraud, conflict of interest, or examiner bias, should the restriction be lifted.”

From FMCSA:

“…most individual commenters opposed lifting the current restriction. The commenters expressed concern that allowing the same individual to train and test the applicant could undermine the integrity of the skills testing process, thereby negatively impacting safety. As one individual noted: “The proposed rule removes the necessary impartiality of the CDL examiner, allowing the instructor to fail or pass student drivers with whom they have developed a relationship. This is not a fair assessment of the candidates’ abilities.” A commenter identifying as a trainer with 22 years of experience expressed a similar concern, explaining that “the reason another trainer has to test my student is to prevent bias or just passing them along.” Another commenter said that, while some companies “will do due diligence to make sure drivers are trained properly,” lifting the restriction would remove necessary checks and balances from the skills testing process. Several commenters compared this to a fox guarding the hen house.“

In spite of these concerns, the FMCSA says that the agency does not expect that the new rule will diminish highway safety due to extensive requirements and resources are currently in place to help FMCSA and the states maintain the integrity of the process and identify irregularities in skills testing.