Section 1340-01-13-.22 - THIRD PARTY TESTING(1) Third Party Commercial Driver License Companies - General Requirements (a) Companies desiring authorization to administer third party commercial driver license (C.D.L.) skills tests may be certified by the State providing they file an application in compliance with Department procedure and meet the requirements addressed in this section. Individuals desirous of forming companies, corporations, partnerships, businesses etc. for the purpose of administering third party testing may be certified upon meeting requirements as specified herein for companies.(b) Companies shall have an established business location, within the geographical boundaries of the State of Tennessee, at which third party skills testing can be administered. The established business location shall contain at least one permanent regularly occupied structure in which administrative and/or operational business is conducted. Companies shall be accessible by public telephone; shall have an established, permanent mailing address including a street address or route; and shall be operationally and environmentally safe, meeting all requirements of State Law and local ordinances.(c) Companies shall be operators or users of commercial vehicles.(d) Pursuant to 49 C.F.R. 383.75(a) (1993), the Department will not authorize companies with less than twenty five (25) full-time employees.(e) Companies shall designate an employee or employees who will serve as Third Party C.D.L. Examiner(s), who shall meet all requirements set forth in paragraphs (2) and (3) of this section.(f) Companies shall provide a safe and suitable testing area; shall designate an appropriate "on-road" driver testing route having a convenient access; and shall make available one or more vehicles which are representative of the type(s) of vehicle(s) to be used to conduct skills tests. The vehicle(s) will be utilized during training sessions conducted by the Department.(g) Companies shall have the means and agree to establish and maintain accurate driver test records; and shall make all required records available during normal working hours for inspection by an authorized representative of the Department or the Federal Highway Administration (F.H.W.A.).(h) Companies shall further agree to the following: 1. To sign a written, contractual agreement with the Department of Safety. This contract will remain in effect for a period of one (1) year from the date of signing and/or certification unless canceled, suspended, revoked, or terminated.2. To permit the F.H.W.A. and the Department to conduct random examinations, inspections and/or audits without prior notice.3. To notify the Department in writing and within ten (10) days of:(i) the termination, relocation, re-assignment, resignation, or change of address or employment of a Third Party C.D.L. Examiner.(ii) the cessation of operation or the change of address of Third Party C.D.L.Company. 4. To test individuals not employed by, or students of, the company only with the written approval of the Commissioner, or his or her designee. Test records for drivers tested under these arrangements shall include all items specified in subparagraphs (3)(c) and (3)(d), as well as records of any receipts and/or disbursements related to the third party testing of drivers.5. To charge a driver for the administration of skills tests no more than seventy-five dollars ($75.00).6. To maintain bodily injury and property damage liability insurance on motor vehicles used in driving tests, insuring the liability of the testing program, the examiner and any person taking tests in the amounts required by state law7. To file evidence of such insurance coverage annually with the Department.(2) Third Party C.D.L. Examiner - General Requirements For Applicants(a) Applicants for Third Party C.D.L. Examiner certification must be a payroll employee of the company or business they represent; must be at least twenty-one (21) years of age; and must be at least a graduate of an accredited secondary school, possess a high school general education equivalency degree (G.E.D.), or have qualifying substitute experience. A "payroll employee" does not include any person who contracts with the company solely to perform third party tests.(b) Applicants must possess a valid Tennessee commercial driver license with the classification and endorsements required for operation of any class or type of commercial motor vehicle used in the skills tests to be conducted by the C.D.L. Examiner.(c) Applicants must present a copy of current medical card or certificate, if required, or proof of medical fitness as ascertained by a physical examination conducted within the previous six (6) months by a physician licensed to practice in the State of Tennessee.(d) Applicants must provide to the Department all employment and driving records for the previous ten (10) years. Applicants must be willing to authorize a criminal background check to be conducted by the Department.(e) Within the past ten (10) years, applicants must have no record of driving under the influence of alcohol or controlled substances conviction(s); of conviction(s) involving the possession, sale or use of a controlled substance; or of a felony conviction(s).(f) Applicants must successfully complete the Department of Safety Commercial Driver Examiner Training Course, and must successfully complete all knowledge and skills test necessary for the examiner classification sought.(3) Third Party C.D.L. Examiner - Administrative Requirements(a) Examiners shall conduct skills tests only for individuals having in their possession a valid driver license. Skills tests shall be conducted as required by 49 C.F.R. § 383.113 (1992), the laws of the State of Tennessee, and policies and procedures of the Department.(b) Examiners shall not administer their own skills tests, but shall be tested by a certified C.D.L. Examiner of the Department or by another Third Party C.D.L. Examiner approved by the Department for this purpose.(c) Examiners shall be responsible for their company's record keeping, correspondence and other transactions related to the third party testing operation; shall submit completed certification forms listing the name of the Driver, skills tests scores, date of certification, driver license number, and certification number; and by the 10th day of each month shall report to the Department, the number of drivers tested during the preceding month as well as any other statistical data as may be required. 1. A report shall be submitted even if no tests were administered during the preceding month.(d) Examiners shall maintain a record of each driver for whom they conduct a skills test, whether or not the driver passes or fails, for a minimum of three (3) years. Each record shall include the following:1. Complete name and address of the driver.2. Driver's social security number, driver license number and name of the State or jurisdiction that issued the license held by the driver at the time of the test.3. Date driver completed the skills test.4. Test score sheets (copies) showing the results of the test.5. Name and certification (I.D.) number of Third Party C.D.L. Examiner conducting the skills test.6. Abstract of the driver's record at the time the skills test was administered or proper documentation that the Department has verified his or her driving record.7. Copy of the driver's medical certificate, if one was required, which was in effect at the time of examination.8. The make, model, and registration number of the commercial motor vehicle(s) used to conduct the, testing.(e) Examiners must attend retraining sessions conducted by the Department or as often as new laws and/or procedures require, or as deemed necessary by the Department.(f) Examiners shall comply with all laws and procedural requirements of the State of Tennessee as well as other policies and procedures, all of which regulate the administration of the Third Party C.D.L. Tester Program.(g) Examiners, by submission of the certification forms as required in this section, certify that each driver has successfully completed each phase of the C.D.L. skills test as required by the federal regulations, laws of the State of Tennessee, and policies and procedures of the Department.(4) Third Party C.D.L. Testing - Certifications and Inspections(a) Whether or not a company or Third Pam, C.D.L. Examiner is accepted for certification as a Third Party C.D.L. Tester shall be at the discretion of the Department.(b) Certification extended to companies or examiners will be initially valid for a period of one (1) year from the date of issuance or until cancellation, suspension, or revocation by the Department.(c) The Department will devise and assign a special certification (identification) number or code unique to each company who qualifies for certification as a Third Party C.D.L. Company, and for each individual who qualifies for certification as a Third Party C.D.L. Examiner.(d) The Department and/or F.H.W.A. will conduct periodic, on-site inspections of C.D.L. Third Party Testing Programs and facilities.1. Third party testers can reasonably expect a thorough initial inspection and a minimum of one (1) inspection per year thereafter.2. Prompt action including but not limited to cancellation, suspension, revocation, or termination of contract will be taken against any third party C.D.L. tester who is found to be in a condition of noncompliance with State or Federal standards or other terms of the third party agreement.(e) As a part of the inspection and regulatory process the Department may select drivers at random and require them to re-demonstrate their skills and proficiency in driving commercial vehicles for which they are licensed.1. The number of drivers re-tested annually may range from ten (10) to twenty (20 ) percent of drivers tested by the C.D.L. Third Party Examiner during the audit period.(5) Third Party C.D.L. Testing - Cancellation/Suspension/Revocation/Denial/RehiW to Renew(a) The Department reserves the right to cancel the Third Party C.D.L. Tester Program, in whole or in part.(b) The Department may cancel, suspend, revoke, refuse to issue or refuse to renew the certification of Third Party C.D.L. Company or a Third Party C.D.L. Examiner if: 1. The applicant or holder of any certification fails to comply with the provisions of the rules and regulations of the Department, Department instructions, Third Party C.D.L. Tester agreement or any associated federal or state statutes;2. The applicant or holder of any certification has made any false or misleading statements or concealed a material fact in connection with the application, required records or reports, or other required information relating to the Third Party C.D.L. Testing Program;3. A Third Party C.D.L. Examiner leaves the company, fails to administer a skills test with in a six (6) month period, or fails to attend an updated training session required by the Department,(i) After leaving a Third Party C.D.L. Company, a Third Party C.D.L. Examiner may be recertified if employed by another Third Party C.D.L. Company by submitting proper application to the Department.(ii) After failing to administer a skills test within a six (6) month period or after failing to attend an updated training session required by the Department, an Examiner may be recertified by demonstrating skills and knowledge required to gain the original or updated certification.4. A Third Party C.D.L. Examiner fails to submit or maintain required reports;5. A Third Party C.D.L. Examiner fails to conduct C.D.L. skills test as required by 49 C.F.R. § 383 (1992), by the laws of the State of Tennessee, or by policies and procedures of the Department.6. A company fails to maintain appropriate insurance coverage;7. A Third Party C.D.L. Examiner's driving privilege is canceled, suspended or revoked in this or any other state; (i) If driving privilege is reinstated, certification may also be reinstated at the discretion of the Department.8. The holder of any certification commits any act which compromises the integrity of the Third Party Program, including but not limited to advertising which implies, suggests or gives the impression that the Company or Third Party C.D.L. Examiner is an employee of, or endorsed by, the Department. or that a C.D.L. is guaranteed to those utilizing their services-,9. Alcoholic beverages or controlled substances are consumed or stored on premises or in company vehicles unless such items are included in the manifest,10. A Third Party C.D.L. Examiner must adhere to the same standards as a state-employed examiner, pursuant to 49 C.F.R. 383.75(a)(2)(iii) (1993).(c) The Department shall notify the certification holder, by registered mail, return receipt requested, of the proposed cancellation, suspension, revocation, denial, or refusal to renew, and of the grounds for such proposed action. 1. Third Party Testers who receive notice of the proposed cancellation, suspension, revocation, denial or refusal to renew shall have ten (10) working days to send a written petition to the Department showing why the proposed action should not occur. Upon receipt of this petition, the Department shall afford the certification holder a hearing before a hearing officer. Before setting such a hearing, the Department may request additional information if needed.2. The Department may exercise its option to postpone cancellation, suspension, revocation, or refusal to renew certification providing the company can present satisfactory assurance that existing deficiencies can be corrected within a reasonable amount of time. The Department may also reinstate certification of a Third Party C.D.L. Company or Examiner pending satisfactory resolution of concerns.(d) Return of certification(s) which have been canceled, suspended, revoked, or denied renewal. 1. The holder of any certification which has been canceled, suspended, revoked, or denied renewal must return said certificates and related controlled documents to the Department within five (5) days of the date of notification of the action.(e) The revocation of any certification shall be for a period of time to be determined by the Commissioner or his or -her designee, but in no event shall the period be less than one (1) year.(f) The suspension of any certification shall be for a period of time to be determined by the Commissioner or his or her designee, but in no event shall the period be less than ninety (90) days or greater than one (1) year.(g) Any Third Party C.D.L. Company or Examiner whose certification is canceled, suspended, revoked, or denied issuance or renewal may appeal the decision of the hearing officer in writing to the Commissioner within ten (10) working days of receipt of the notice of the action. The Commissioner shall consider such an appeal pursuant to the Uniform Administrative Procedures Act, T.C.A. § 4-5-101et seq.(6) Cooperative Driver Testing Program - Class D Third Party Testing (a) The "Cooperative Driver Testing Program" (C.D.T.P.) is a program offered to the following entities with driver education and training courses for Class D vehicles: public school systems, public institutions of higher learning, non-public schools in categories 1, 2, or 3 as recognized by the state board of education, and commercial driver training schools operating under 1340-1-6. Collectively, these entities are referred to here as eligible or authorized agencies.(b) The driver education and training course shall include both a classroom and a behind-the-wheel component, and shall satisfy the minimum standards set forth in 0520-1-3-.05(6)(e) and in the Driver Traffic Safety Education curriculum framework approved by Tennessee's State Board of Education.(c) Students actively enrolled in these classes who meet the testing standards defined below shall be exempted from the knowledge and/or driving tests required for a Class D license and from the knowledge test required for a Class PD learner permit.(d) Eligible agencies desiring authorization to participate in the C.D.T.P. may be approved by the Department providing they meet the requirements set forth in paragraph (8) of this section. Individual driver education instructors need to apply through their eligible or authorized agency.(7) C.D.T.P. Testing Standards and Administration(a) Students shall be exempt from the Class D knowledge test administered by the Department if they answer correctly eighty percent (80%) of the questions contained in a standard knowledge test developed by the Department and administered through the C.D.T.P. in a supervised setting, with the instructor present. Oral versions of the test are prohibited. The knowledge test must contain one fourth (1/4) of the questions concerning drugs and alcohol and may only be administered after the student has completed the classroom component of the course.(b) Students shall be exempt from the Class D driving test administered by the Department if they demonstrate an ability to drive safely at a level considered by the instructor as acceptable for licensing. The basis for determining acceptable driving ability shall include, but not be limited to, an assessment of the student's driving competence with respect to skills, judgment, and perception. The driving test must meet minimum standards set forth by the Department in related C.D.T.P. policies and procedures issued to participating agencies and may be given only at the conclusion of the course, after the student has completed both the classroom and driving portions of the course.(c) Test scores shall be valid for ninety (90) days from the date of the Third Party Driver Examiner test certification form.(d) Tests administered through the C.D.T.P. shall be given only to students actively enrolled in the Driver Education courses described in the agency's application to participate. Public school systems, public institutions of higher learning, and non-public schools in categories 1, 2, or 3 as recognized by the state board of education who participate in Driver Education courses are authorized to administer skills tests to students who have completed the Driver Education course described in the agency's application to participate if the student is still enrolled in the school as a student, and has not transferred to any other school after completing the Driver Education course.(8) C.D.T.P. Requirements for Eligible Agencies.(a) To participate, an eligible agency must submit an application to the Driver License Issuance Division, Tennessee Department of Safety. The application shall describe the driver education courses offered, and include a compliance affidavit for each participating driver education instructor. The application shall be submitted once per school year.(b) In the event a participating driver education instructor resigns or transfers employment, the authorized agency must notify the Department within thirty (30) days of such change.(c) Authorized agencies must permit the Department to conduct random examinations, inspections and/or audits without prior notice.(9) C.D.T.P. Requirements for Individual Driver Education Instructors.(a) Participating driver education instructors shall submit to the Department a signed affidavit which shows that the instructor: 1. is currently employed by the agency;2. is certified and registered by the Department of Education or licensed by the Department as a driver instructor;3. holds a valid driver license; and4. agrees to follow procedures for the C.D.T.P. Program established by the Department pursuant to these rules.(b) Individual driver education instructors must maintain accurate driver test records for all students who have been administered a test, whether or not they meet the waiver standards. Each record shall be maintained for one (1) calendar year, and shall include: 1. complete name, address and social security number of each student; and2. the results of each test, along with the name and certification identification number of the instructor conducting the tests.(c) The instructor shall periodically submit to the Department a summary of results for all students tested on a form provided by the Department.(10) Requirements for Participating C.D.T.P. Students.(a) To obtain exemption from Class D knowledge and/or driving tests administered by the Department, students enrolled in C.D.T.P. shall present a properly executed Third Party Driver Examiner Testing Certification form to the Department at any Driver License Testing Station within ninety (90) days of completing the driver education and training course.(b) The Department shall spot check a random sample of the exempted driver population, and may administer either the knowledge or the driving test to any student so selected.(c) All other standard driver qualifications must be satisfied before the license may be issued, including age, parental affidavits of financial responsibility, driving history, vision, compulsory school attendance, and other such requirements as set forth by law.(11) C.D.T.P. Inspections, Cancellations/ Suspensions/Revocations/Denials/Refusals to Renew(a) The Department reserves the right to cancel the C.D.T.P., in whole or in part.(b) Certification of participation in the C.D.T.P. shall be valid for one (1) school year. C.D.T.P. certification of individual driver education instructors shall be valid for the period of time authorized for the participating agency.(c) The Department will devise and assign a special C.D.T.P. certification identification number or code unique to each individual driver education instructor who qualifies to participate.(d) The Department may conduct periodic, on-site inspections of C.D.T.P. facilities and instructors. As part of the inspection and regulatory process the Department may select drivers at random and require them to redemonstrate their skills and/or knowledge proficiency in driving Class D vehicles.(e) The Department may cancel, suspend, revoke, refuse to issue, or refuse to renew the certification of a C.D.T.P. agency or instructor on grounds including but not limited to the following:1. instructor's resigning from employment with the authorized agency2. failure to submit or maintain required reports;3. failure to comply with or satisfy any of the Provisions of these requirements or Department of Safety instructions;4. cancellation, suspension or revocation of the driving privilege for a C.D.T.P. instructor in this or any other state.(i) If driving privilege is reinstated the Department, C.D.T.P. certification may also be reinstated at the discretion of the Department.5. falsification of any records or other required information relating to the C.D.T.P., and6. commission of any act which compromises the integrity of the C.D.T.P., including but not limited to advertising which implies, suggests or gives the impression that the agency or driver education instructor is an employee of, or endorsed by, the Department, or that a license is guaranteed to those utilizing their services.(f) The Department shall notify the certification holder, by registered mail, return receipt requested, of the proposed cancellation, suspension, revocation, denial, or refusal to renew, and of the grounds for such proposed action.1. D.T.P. agencies or instructors who receive notice of the proposed cancellation, suspension, revocation, denial, or refusal to renew shall have ten (10) working days to send a written petition to the Department showing why the proposed action should not occur. Upon receipt of this petition, the Department shall afford the certification holder a hearing before a hearing officer. Before setting such a hearing, the Department may request additional information if needed.2. The Department may exercise its option to postpone cancellation, suspension, revocation, or refusal to renew certification providing the agency or instructor presents satisfactory assurance that existing deficiencies can be corrected within a reasonable amount of time. The Department may also reinstate certification of a C.D.T.P. agency or instructor pending satisfactory resolution of concerns.(g) Return of certification(s) which have been canceled, suspended, revoked or refused renewal.1. The holder of any certification which has been canceled, suspended revoked or refused renewal must return said certificates and related controlled documents to the Department within five (5) days of the date of notification of the action.(h) The revocation of any certification shall be for a period of time to be determined by the Commissioner or his or her designee, but in no event shall the period be less than one (1) year. (i) The suspension of any certification shall be for a period of time to be determined by the Commissioner or his or her designee, but in no event shall the period be less than ninety (90) days or greater than one (1) year. (j) Any C.D.T.P. agency or instructor whose certification is canceled, suspended, revoked , denied, or refused renewal may appeal the decision of the hearing officer in writing to the Commissioner within ten (10) working days of receipt of the notice of the action. The Commissioner shall consider such an appeal pursuant to the Uniform Administrative Procedures Act, T.C.A. § 4-5-101 et seq.Tenn. Comp. R. & Regs. 1340-01-13-.22
Original rule filed April 8, 1996; effective August 28, 1996. Public necessity rule filed September 24, 2007, effective through March 7, 2008. Public necessity rule filed September 24, 2007, expired March 8, 2008. Public necessity rule filed March 11, 2008, effective through August 23, 2008. Amendment filed December 3, 2007; effective April 29, 2008. Amendment filed January 29, 2016; effective 4/28/2016.Authority: T.C.A. §§ 4-5-101 et seq., 55-50-202, 55-50-321, 55-50-322, 55-50-323, 55-50-331, 55-50-405, 55-50-502, Public Chapter No. 194, 2007 and 49 C.F.R. § 383 (1992).