What does 49 CFR 383.75 (Third-party testing) require?

Short answer

49 CFR 383.75 requires a State to meet eight conditions to authorize a third-party tester to administer the skills tests, including using the same version of the skills tests and conducting on-site inspections of each third-party tester at least once every 2 years.

1. The skills tests given by the third party are the same as those that would otherwise be given by the State.

2. The State must conduct an on-site inspection of each third-party tester at least once every 2 years.

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.

5. The State must, at least once every 2 years, do one of the following for each third-party examiner.

6. The State must take prompt and appropriate remedial action against a third-party tester that fails to comply with State or Federal standards.

7. A skills test examiner who is also a skills instructor is prohibited from administering a skills test to an applicant who received skills training by that skills test examiner.

8. The State has an agreement with the third party containing provisions that allow the FMCSA to conduct random examinations, inspections, and audits.

The rule says

"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" (49 CFR 383.75(a)(1))

"The State must conduct an on-site inspection of each third-party tester at least once every 2 years, with a focus on examiners with irregular results such as unusually high or low pass/fail rates" (49 CFR 383.75(a)(2))

"The State must issue the third-party tester a CDL skills testing certificate upon the execution of a third-party skills testing agreement" (49 CFR 383.75(a)(3))

"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 384.228 of this chapter" (49 CFR 383.75(a)(4))

"The State must, at least once every 2 years, do one of the following for each third-party examiner: (i) Have State employees covertly take the 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" (49 CFR 383.75(a)(5))

"The State must take prompt and appropriate remedial action against a third-party 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" (49 CFR 383.75(a)(6))

"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" (49 CFR 383.75(a)(7))

"The State has an agreement with the third party containing, at a minimum, provisions that: (i) Allow the FMCSA, or its representative, and the State to conduct random examinations, inspections, and audits of its records, facilities, and operations without prior notice" (49 CFR 383.75(a)(8))

In plain English

49 CFR 383.75 sets out the conditions under which a State can authorize a third-party tester to give the skills tests for a commercial driver's license (CDL). The goal is to ensure that third-party testers are giving the same tests as the State would, using the same materials and scoring, and that they are held to the same standards. This includes regular on-site inspections and audits to check for compliance and to prevent fraud. The rule also prohibits a skills test examiner from giving a test to someone they have trained, to prevent conflicts of interest. In practice, this means that States need to carefully vet and monitor third-party testers to ensure they are meeting these conditions, and that they have procedures in place to take action if a tester is not complying.

What to do

• Ensure that third-party testers use the same version of the skills tests and materials as the State.
• Conduct on-site inspections of each third-party tester at least once every 2 years.
• Issue CDL skills testing certificates to third-party testers and their examiners.
• Establish an agreement with the third-party tester that allows for random examinations and audits.
• Take prompt action against third-party testers that fail to comply with State or Federal standards.