COMMERCIAL DRIVER THIRD-PARTY TESTING REQUIREMENTS
Section
61:25:04:01 Definitions.
61:25:04:02 Employment of department employees prohibited.
61:25:04:03 Requirements for driver testing record.
61:25:04:04 Requirements for third-party examiner records.
61:25:04:05 Requirements for third-party testers.
61:25:04:06 Requirements for third-party examiners.
61:25:04:07 Specific requirements for certain third-party testers.
61:25:04:08 General requirements for certificates.
61:25:04:09 Applications for third-party examiner certificate.
61:25:04:10 Evaluation of applicants by the department.
61:25:04:11 Application for third-party tester certificate.
61:25:04:12 Third-party tester agreement.
61:25:04:13 On-site inspections and audits.
61:25:04:14 Professional conduct.
61:25:04:15 Advertising.
61:25:04:16 Insurance requirements.
61:25:04:17 Notification requirements.
61:25:04:18 Test administration.
61:25:04:19 Denial/termination of third-party testing program and certificates.
61:25:04:01. Definitions. Terms used in this chapter mean:
(1) "Department," South Dakota Department of Public Safety;
(2) "CDL," commercial driver license;
(3) "CLP," commercial learner's permit;
(4) "FMCSA," Federal Motor Carrier Safety Administration;
(5) "FMCSR," federal motor carrier safety regulations promulgated by the U. S. Department of Transportation in 49 C.F.R. 390, as of January 1, 2015;
(6) "Approved testing program," the skill tests for a CDL required by 49 C.F.R. 383 Subpart E, as of January 1, 2015;
(7) "Certificate," the document issued to a third-party tester authorizing the tester to administer the approved testing program on behalf of the department and to an examiner to conduct skills tests;
(8) "Third-party tester," an employer, a government entity, an association, or educational institution which is licensed by the department to administer the approved testing program for CDL applicants in accordance with this chapter;
(9) "Third-party examiner," an individual who is on the payroll of a third-party tester and who has been issued an examiner certificate by the department.
Source: 16 SDR 88, effective November 16, 1989; 33 SDR 108, effective December 27, 2006; 35 SDR 305, effective July 1, 2009; 40 SDR 39, effective September 9, 2013; SL 2015, ch 168, § 46, effective July 1, 2015.
General Authority: SDCL 32-12A-48(6).
Law Implemented: SDCL 32-12A-11, 32-12A-49.
61:25:04:02. Employment of department employees prohibited. No third-party tester certified under the provisions of this chapter may engage the service of an employee of the department as an examiner, agent, or employee without prior approval of the department secretary.
Source: 16 SDR 88, effective November 16, 1989; 33 SDR 108, effective December 27, 2006; 42 SDR 31, effective e September 9, 2015.
General Authority: SDCL 32-12A-48(6).
Law Implemented: SDCL 32-12A-11, 32-12A-49.
61:25:04:03. Requirements for driver testing record. Each driver testing record must include the following:
(1) The complete name of the driver;
(2) The driver's license number, and the name of the state or jurisdiction that issued the license held by the driver at the time of the test;
(3) The date the driver took the skills test;
(4) The test score sheets showing the results of the skills test;
(5) The name and identification number of the third-party examiner conducting the skills test and location the test was performed;
(6) The make, model, and license number of the commercial motor vehicle or vehicles used to conduct the testing;
(7) A copy of the written contract, if applicable, with any person or group of persons being tested, including the amount of payment; and
(8) The date the driver completed entry level driver training as required in SDCL 32-12A-11.
Source: 16 SDR 88, effective November 16, 1989; 25 SDR 34, effective September 15, 1998; 33 SDR 108, effective December 27, 2006; 42 SDR 31, effective September 9, 2015; 48 SDR 18, effective August 30, 2021.
General Authority: SDCL 32-12A-48(6).
Law Implemented: SDCL 32-12A-11, 32-12A-49.
61:25:04:04. Requirements for third-party examiner records. Each third-party examiner record must include the following:
(1) A valid examiner certificate issued by the department upon meeting the requirements as indicated in § 61:25:04:06, including name and residential address;
(2) A copy of the third-party examiner's current driving record, which must be updated annually; and
(3) Evidence that the third-party examiner is under the direction or control of the third-party tester who filed his or her third-party examiner application, either as an independent contractor or an employee.
Source: 16 SDR 88, effective November 16, 1989; 25 SDR 34, effective September 15, 1998; 33 SDR 108, effective December 27, 2006; SL 2015, ch 168, § 47, effective July 1, 2015; 42 SDR 31, effective September 9, 2015.
General Authority: SDCL 32-12A-48(6).
Law Implemented: SDCL 32-12A-11, 32-12A-49.
61:25:04:05. Requirements for third-party testers. To be licensed, a third-party tester must:
(1) Apply to the department, as provided in § 61:25:04:08, and enter into an agreement with the department;
(2) Maintain a place of business with at least one permanent regularly occupied structure in this state;
(3) Direct or control at least one qualified third-party examiner approved by the department. A third-party tester may also be a third-party examiner;
(4) Allow the Federal Motor Carrier Safety Administration, its representatives, and the department to conduct random examinations, inspections, and audits without prior notice;
(5) Allow the department to conduct annual on-site inspections;
(6) Maintain for two years the completed commercial driver licensing skills test scoring sheet of each driver for whom the third-party tester conducts a skills test, whether or not the driver passes or fails the test at an approved location within the state;
(7) Maintain a record of each third-party examiner under the direction or control of the third-party tester at an approved location and retain the record for at least two years after the third-party examiner leaves the direction or control of the third-party tester;
(8) Ensure that the skill tests are conducted in accordance with the requirements of § 61:25:04:18;
(9) Enter each test score into the Commercial Skills Test Information Management System;
(10) Meet all requirements of state law, federal law, and local ordinances; and
(11) Send a copy of testing records to the department by the fifteenth day of each month.
Source: 16 SDR 88, effective November 16, 1989; 25 SDR 34, effective September 15, 1998; 33 SDR 108, effective December 27, 2006; 40 SDR 39, effective September 9, 2013; SL 2015, ch 168, § 48, effective July 1,2015; 50 SDR 47, effective October 16, 2023.
General Authority: SDCL 32-12A-48(6).
Law Implemented: SDCL 32-12A-11, 32-12A-49
61:25:04:06. Requirements for third-party examiners. Third-party examiners may conduct skill tests on behalf of only one third-party tester at any given time. If a third-party examiner leaves the direction or control of a third-party tester, the examiner shall reapply and be approved for a new examiner certificate in order to conduct tests on behalf of a new third-party tester.
To qualify as a third-party examiner, an individual shall meet the following requirements:
(1) Apply to the department as provided in § 61:25:04:09;
(2) Be under the direction or control of the third-party tester who filed the individual's third-party examiner application, either as an independent contractor or an employee;
(3) Have successfully completed a department-sanctioned commercial driver license examiner training course. At a minimum upon completion of the training the third-party examiner shall have acquired and demonstrated the following knowledge and skills;
(a) A comprehensive understanding of all information in the commercial driver license driver's manual;
(b) A working knowledge of the commercial driver license examiner's manual;
(c) Ability to administer and score correctly each of the commercial driver license skill tests; and
(d) Knowledge of testing site and route requirements;
(4) Make a commitment to take part in all training courses, workshops, and seminars offered upon request from the department;
(5) Within the three years prior to application, have had no conviction for driving while intoxicated, and have had no conviction for a violation, while in a motor vehicle, of the provisions of SDCL 22-42-5 to 22-42-11, inclusive, 22-42A-3 or 22-42A-4;
(6) Within the three years prior to application, have had no driver's license suspensions, revocations, cancellations, or disqualifications; and
(7) Conduct skill tests on behalf of the third-party tester in accordance with this chapter; and
(8) Hold a valid commercial driver license with the appropriate CDL group designation and all endorsements required for operation of the commercial motor vehicle used in the skills tests conducted by the examiner.
Source: 16 SDR 88, effective November 16, 1989; 25 SDR 34, effective September 15, 1998; 33 SDR 108, effective December 27, 2006; SL 2015, ch 168, § 49, effective July 1, 2015.
General Authority: SDCL 32-12A-48(6).
Law Implemented: SDCL 32-12A-11, 32-12A-49.
61:25:04:07. Specific requirements for certain third-party testers. In addition to the requirements listed in § 61:25:04:05, all third-party testers who are not governmental entities or an association shall meet the following requirements:
(1) Entities other than proprietary schools and other educational institutions:
(a) Employ a safety officer or designate an official who is responsible for the third-party testing operation;
(b) Have been in operation in South Dakota for a minimum of two years; and
(c) If subject to the FMCSR, maintain a safety rating of satisfactory as provided in 49 C.F.R. 385.11 as of January 1, 2015;
(2) Proprietary schools and other educational institutions:
(a) Have an established commercial motor vehicle training program; and
(b) Have been in operation in South Dakota for a minimum of two years.
Source: 16 SDR 88, effective November 16, 1989; 25 SDR 34, effective September 15, 1998; 33 SDR 108, effective December 27, 2006; 35 SDR 305, effective July 1, 2009; 40 SDR 39, effective September 9, 2013; SL 2015, ch 168, § 50, effective July 1, 2015.
General Authority: SDCL 32-12A-48(6).
Law Implemented: SDCL 32-12A-11, 32-12A-49.
61:25:04:08. General requirements for certificates. The department shall issue a certificate to a third-party tester who meets the requirements of § 61:25:04:05 that allows the tester to operate an approved testing program for the classes and types of vehicles listed. The department shall also issue certificates to employees of the third-party tester qualified under § 61:25:04:06.
A copy of the examiner's certificate must be displayed in the office of the third-party tester. The certificate issued by the department to operate a third-party testing program must be prominently displayed in the place of business of the third-party tester.
An examiner shall surrender his or her certificate to the department if that examiner becomes inactive or if the certificate has been revoked by the department. A certificate to operate a third-party testing program and examiners' certificates are not transferable.
Each third-party tester and examiner certificate is effective on the date of issuance and expires at the end of one year. All renewal application forms must be submitted to the department at least 30 days before the previous certificate expires.
Source: 16 SDR 88, effective November 16, 1989; 33 SDR 108, effective December 27, 2006; SL 2015, ch 168, § 51, effective July 1, 2015.
General Authority: SDCL 32-12A-48(6).
Law Implemented: SDCL 32-12A-11, 32-12A-49.
61:25:04:09. Application for third-party examiner certificate. Application for an examiner certificate must be made on a form supplied by the department. The form must include at least the following information:
(1) The full name, home and business addresses, and telephone numbers of the applicant;
(2) The applicant's driving history, including the class of the applicant's current license and any endorsements and restrictions;
(3) The name, address, and telephone number of the third-party tester under whose direction or control the applicant will operate; and
(4) The third-party tester's recommendation of the applicant for an examiner identification card and certification that the applicant is under the direction or control of the third-party tester, either as an independent contractor or as an employee.
An applicant shall submit with the application a completed and signed third-party examiner's qualification questionnaire.
Source: 16 SDR 88, effective November 16, 1989; 25 SDR 34, effective September 15, 1998; 33 SDR 108, effective December 27, 2006; 42 SDR 31, effective September 9, 2015.
General Authority: SDCL 32-12A-48(6).
Law Implemented: SDCL 32-12A-11, 32-12A-49.
61:25:04:10. Evaluation of applicants by the department.
The department shall evaluate the materials submitted by the third-party tester
applicant and the need for CDL skills testing in the area where the third-party
tester proposes to operate. If the application materials meet requirements in
this chapter, the department shall schedule an on-site inspection and audit of
the applicant's third-party testing program to complete the evaluation.
The department shall evaluate the
materials submitted by the third-party examiner applicant, including the
applicant's driving record and qualification questionnaire. If the application
materials, driving record, and qualification questionnaire meet requirements in
this chapter, the department shall schedule the applicant for the third-party
examiner training. Training may be waived if the applicant is seeking a new
identification card only because the applicant has changed employers.
Source:
16 SDR 88, effective November 16, 1989; 25 SDR 34, effective September 15,
1998; 33 SDR 108, effective December 27, 2006.
General
Authority: SDCL 32-12A-48(6).
Law
Implemented: SDCL 32-12A-11, 32-12A-49.
61:25:04:11. Application for third-party tester certificate. Before a third-party tester certificate is issued, the tester shall apply for a certificate in writing to the department on a form furnished by the department. The application must include the following:
(1) The official name, address, and telephone number of the principal office or headquarters;
(2) The name, title, address, and telephone number of the individual who is the applicant's contact person with the department;
(3) A description of the type of organization that is applying, such as governmental entity, an association, motor carrier, proprietary training school, or educational institution, and the length of time the applicant has been in business in South Dakota;
(4) If applicable, a description of the vehicle fleet owned or leased by the applicant, including the number of commercial motor vehicles by class and type;
(5) The class of testing which the applicant is applying for;
(6) If applicable, the total number of South Dakota licensed drivers employed to operate commercial motor vehicles and the number of such drivers who are full-time, part-time, and seasonal;
(7) The name, driver's license number, and home address of any third-party examiners or third-party examiner applicants who would be under the direction or control of the third-party tester; and
(8) The address of a South Dakota location where the applicant intends to conduct the skills tests, including a description of the off-road facilities and a map, drawing, or written description of the test route that will be used for the on-road portion of the skills test. If other locations are selected for the skill testing, the third-party examiner shall display knowledge necessary on the examiner's ability to select a test route for compliance on the skills testing in accordance with the requirements of § 61:25:04:18.
Educational institutions and proprietary schools shall also submit with their application a description of their facilities, equipment, and training curriculum and the number of student applications for the previous year and the percentage of graduates.
Source: 16 SDR 88, effective November 16, 1989; 25 SDR 34, effective September 15, 1998; 33 SDR 108, effective December 27, 2006; 42 SDR 31, effective September 9, 2015.
General Authority: SDCL 32-12A-48(6).
Law Implemented: SDCL 32-12A-11, 32-12A-49.
61:25:04:12. Third-party tester agreement. An applicant for a third-party tester or third-party examiner certificate shall execute an agreement form provided by the department in which the applicant agrees, at a minimum, to comply with the requirements of this chapter for third-party testers, including the audit procedures in § 61:25:04:13, and agrees to hold the department harmless from liability resulting from the third-party tester's administration of the commercial driver licensing skills test program.
Source: 16 SDR 88, effective November 16, 1989; 25 SDR 34, effective September 15, 1998; 33 SDR 108, effective December 27, 2006; 42 SDR 31, effective September 9, 2015.
General Authority: SDCL 32-12A-48(6).
Law Implemented: SDCL 32-12A-11, 32-12A-49.
61:25:04:13. On-site inspections and audits. Each applicant for a third-party tester certificate shall permit the FMCSA or the department to inspect and audit its operations, facilities, and records that relate to its third-party testing program for the purpose of determining whether the applicant is qualified to be certified.
Any third-party tester who has been certified shall permit the department or FMCSA to inspect and audit its third-party testing program at least annually to determine whether it remains in compliance with the certification requirements.
The department and FMCSA may perform their inspections and audits with or without prior notice to the third-party tester. The department shall conduct on-site inspections at least annually.
Each inspection and audit must include, at a minimum, an examination of the following:
(1) Records relating to the third-party testing program;
(2) Evidence of compliance with the FMCSRs;
(3) Skills testing procedures, practices, and operations;
(4) Vehicles used for testing;
(5) Qualifications of third-party examiners;
(6) Effectiveness of the skills test program by either testing a sample of drivers who have been issued skill test certificates by the third-party tester or having department employees take the skill tests from the third-party examiner; and
(7) Any other aspect of the third-party tester's operation that the department determines is necessary to verify that the third-party tester meets the requirements for the certificate.
The department shall prepare a written report of the results of each inspection and audit and provide a copy of the report of the third-party tester.
Source: 16 SDR 88, effective November 16, 1989; 33 SDR 108, effective December 27, 2006; 42 SDR 31, effective September 9, 2015.
General Authority: SDCL 32-12A-48(6).
Law Implemented: SDCL 32-12A-11, 32-12A-49.
61:25:04:14. Professional conduct. No examiner, employee,
or agent of the third-party licensee may accompany a commercial driver license
applicant into an examining office rented, leased, or owned by the department
for the purpose of taking a written or skill test driver examination given by
the department.
No examiner, employee, or agent of the
third-party licensee may personally solicit an individual on the premises
rented, leased, or owned by the department for the purpose of enrolling that
individual in a third-party testing program.
Source:
16 SDR 88, effective November 16, 1989; 33 SDR 108, effective December 27,
2006.
General
Authority: SDCL 32-12A-48(6).
Law
Implemented: SDCL 32-12A-11, 32-12A-49.
61:25:04:15. Advertising. No advertisement may indicate
in any way that a program can issue or guarantee the issuance of a commercial
driver's license, imply that the program can in any way influence the
department in the issuance of a commercial driver's license, or imply that
preferential or advantageous treatment from the department can be obtained.
Programs that are in fact licensed by
the department may in their advertising state they are licensed but may not
indicate that a program is approved, sanctioned, or in any other way endorsed
by the department over another program.
Source:
16 SDR 88, effective November 16, 1989; 33 SDR 108, effective December 27,
2006.
General
Authority: SDCL 32-12A-48(6).
Law
Implemented: SDCL 32-12A-11, 32-12A-49.
61:25:04:16. Insurance requirements. Each third-party
tester shall 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 a test.
Evidence of such insurance coverage,
in the form of a certificate from the insurance carrier, must be filed by the
licensee with the department. The certificate must stipulate that the insurance
contract carried by the licensee provides for cancellation only upon 30 days
prior written notice to the department.
Source:
16 SDR 88, effective November 16, 1989; 33 SDR 108, effective December 27,
2006.
General
Authority: SDCL 32-12A-48(6).
Law
Implemented: SDCL 32-12A-11, 32-12A-49.
61:25:04:17. Notification requirements. Each third-party
tester shall advise the department as follows:
(1) Notify the department
in writing 30 days prior to a change in the third-party tester's name or
address;
(2) Notify the department
in writing within 10 days of any change in the third-party examiners who are
employed by the third-party tester and the third-party examiners' driving
status;
(3) Notify the department
in writing within 10 days of any of the following occurrences:
(a) The third-party
tester ceases business operations in South Dakota;
(b) The third-party
tester fails to comply with any of the requirements in this chapter;
(c) Third-party
examiners receive notice from the department of suspension, revocation,
disqualification, or cancellation or a driving while intoxicated conviction; or
(d) Third-party
examiner fails to comply with any of the requirements in this chapter; and
(4) Request and obtain
approval from the department of any proposed changes in the skills test route,
test content, or examiner/administrative procedures.
A third-party examiner shall notify
the department within 10 days after leaving the employ of the third-party
tester.
Source:
16 SDR 88, effective November 16, 1989; 33 SDR 108, effective December 27,
2006.
General
Authority: SDCL 32-12A-48(6).
Law
Implemented: SDCL 32-12A-11, 32-12A-49.
61:25:04:18. Test administration. Each skill test shall be conducted in accordance with the provisions in 49 C.F.R. 383, Subparts G and H as of September 30, 2019.
Each skill test shall be conducted as follows:
(1) On a test route approved by the department as indicated in § 61:25:04:11;
(2) In a vehicle that is representative of the class and type of vehicle for which the commercial driver license applicant seeks to be licensed and for which the third-party examiner is qualified to test; and
(3) With approved content, forms, and scoring procedures provided by the department.
A person who trains a commercial driver license applicant to drive a commercial motor vehicle may not also act as the third-party tester or third-party examiner for that applicant. The department reserves the right to test or re-examine any applicant certified by a third-party examiner.
Source: 16 SDR 88, effective November 16, 1989; 25 SDR 34, effective September 15, 1998; 33 SDR 108, effective December 27, 2006; 35 SDR 305, effective July 1, 2009; 40 SDR 39, effective September 9, 2013; SL 2015, ch 168, §§ 34 and 52, effective July 1, 2015; 48 SDR 18, effective August 30, 2021.
General Authority: SDCL 32-12A-48(6).
Law Implemented: SDCL 32-12A-11, 32-12A-49.
61:25:04:19. Denial/termination of third-party testing program and certificates. The department may deny an application for a third-party tester or examiner's certificate if the applicant does not qualify for the certificate under this chapter. Misstatements or misrepresentation are grounds for denying a certificate.
A third-party tester or examiner may relinquish his or her certificate on 30 days notice to the department.
The department may cancel in its entirety the third-party testing program provided for in this chapter.
The department may revoke the certificate of a third-party tester or examiner on the following grounds:
(1) Failure to comply with or satisfy any of the provisions of this chapter or the third-party tester agreement;
(2) Falsification of records or information relating to the third-party testing program;
(3) For third-party examiner, driver license suspension, revocation, recall, or disqualifications; and
(4) Commission of any act or omission which, in the judgment of the department, compromises the integrity of the third-party program.
If the department determines that grounds for cancellation exist for failure to comply with or satisfy any of the requirements in this chapter or in the third-party tester agreement, the department may postpone cancellation and allow the third-party tester or examiner 30 days to correct the deficiency.
Source: 16 SDR 88, effective November 16, 1989; 25 SDR 34, effective September 15, 1998; 33 SDR 108, effective December 27, 2006; SDCL 2015, ch 168, § 53, effective July 1, 2015.
General Authority: SDCL 32-12A-48(6).
Law Implemented: SDCL 32-12A-11, 32-12A-49.
