Or. Admin. Code § 735-060-0145

Current through Register Vol. 63, No. 12, December 1, 2024

Section 735-060-0145 - CDL Third Party Tester and CDL Third Party Examiner Sanctions

(1) DMV may impose a sanction on a Tester or Examiner if DMV determines a Tester or Examiner has violated any provision related to CDL third party testing described in the Oregon Vehicle Code or these Division 60 rules.

(2) DMV will impose a sanction determined by DMV to be appropriate for the particular violation. DMV may consider one or more of the following criteria, as it deems appropriate, to determine what sanction or sanctions, if any, may be imposed upon concluding that a violation has occurred:

(a) The severity of the violation;

(b) The possible impact of the violation on public safety;

(c) The possible impact of the violation on the integrity of the CDL Third Party Testing program;

(d) The possible impact of the violation on the security of a CDL applicant's personal information;

(e) The total number of violations by the Tester or Examiner;

(f) Whether the violation is an isolated occurrence, part of a continuing pattern, or one of a series of violations;

(g) Whether the violation was willful or committed negligently by a Tester or Examiner who, when considering the Tester's or Examiner's training and experience, should have known the action to be in violation of the provisions of the CDL Third Party Testing program;

(h) The history of the Tester's or Examiner's prior violations;

(i) The Tester's or Examiner's past performance;

(j) Any extenuating circumstances or other factors bearing on the appropriate nature of a sanction; and

(k) The history of prior sanctions imposed by DMV on other Testers or Examiners for a similar violation.

(3) DMV may cancel a CDL Third Party Tester's Certificate if DMV learns that the Tester does not continue to meet all qualifications required in OAR 735-060-0030. DMV may cancel a CDL Third Party Examiner's Certificate if DMV learns that the CDL Third Party Examiner does not continue to meet all qualifications required in OAR 735-060-0090.

(4) DMV may suspend a CDL Third Party Tester Certificate or a CDL Third Party Examiner for a period of no less than 30 calendar days and no more than one year. The following are examples of violations that may result in suspension:

(a) Public Safety - A public safety violation includes, but is not limited to:

(A) Failing to follow the methods and procedures set forth in the Oregon CDL Examiner's Manual;

(B) Failing to test only at approved sites and on approved routes as described in these Division 060 rules;

(C) Failing to test in a vehicle that corresponds to the license for which the CDL applicant applied;

(D) Allowing a CDL applicant to test in an unsafe vehicle;

(E) Administering a test to an applicant who does not possess an Oregon CLP that was issued no less than 14 days prior to the date of the test, in the appropriate class, and with all endorsements required to operate the vehicle being used for testing; and

(F) Administering a test to an applicant who has not completed ELDT as required by OAR 735-063-0262.

(b) Integrity of the CDL Third Party program - An integrity violation includes, but is not limited to:

(A) Conducting business in a manner that reasonably makes a CDL applicant feel intimidated;

(B) Conducting business in a manner that causes a CDL applicant to pay additional fees or fees that are not required for the services requested;

(C) Entering inaccurate or false information into CSTIMS; or

(D) Failing to ensure the CDL applicant tested is the same individual applying for a CDL.

(c) Security of personal information - A security violation includes, but is not limited to, failing to maintain proper security of records that must be retained as part of the CDL Third Party Testing program.

(d) Multiple minor violations observed in a single inspection.

(e) Failing to correct the conduct or circumstances underlying a violation communicated to the Tester or Examiner in a written warning, including those communicated on correction notices or inspection reports, resulting in the continued occurrence of the same or a similar violation.

(5) DMV may impose an immediate suspension of the CDL Third Party Tester Certificate or the CDL Third Party Examiner Certificate in accordance with the provisions of ORS 183.430.

(6) DMV may impose a revocation of the CDL Third Party Tester Certificate or of the CDL Third Party Examiner Certificate for no less than one year and no more than five years. DMV may impose a revocation upon review of the criteria described in this rule if the Tester or Examiner:

(a) Fails to correct violations that have led to previous suspensions;

(b) Commits multiple violations, that individually would otherwise result in a suspension, that are observed during one or more inspections; or

(c) The violation is severe or has a significant negative impact on public safety.

(7) DMV may impose a permanent revocation of the CDL Third Party Tester Certificate or the CDL Third Party Examiner Certificate if DMV determines the Tester or the Examiner participated in fraudulent or criminal activity or has violated any provision of the Code of Ethics and Rules of Conduct set forth in OAR 735-060-0115(2).

(8) A Tester or Examiner whose certificate has been suspended, canceled or revoked is entitled to a contested case hearing as provided in the Oregon Administrative Procedures Act under ORS 183.413 to 183.500.

(9) When DMV proposes to sanction a CDL Third Party Tester Certificate or CDL Third Party Examiner Certificate, DMV will send a written notice that the sanction begins 30 calendar days from the date the notice is issued, with the exception of an immediate suspension described in subsection (5) of this rule. The notice will be served by certified mail sent to the Tester's or Examiner's most recent address on record with DMV.

(10) Except as provided for in section (11) of this rule, a request for a hearing must be submitted in writing to, and received by, DMV within 20 calendar days of the date DMV issues the notice. If a hearing request is received in a timely manner the sanction will not go into effect pending the outcome of the hearing.

(11) If the certificate is immediately suspended as set forth in subsections (5) of this rule, the request for hearing must be submitted in writing to, and received by, DMV within 90 calendar days of the date of the notice of suspension. The suspension will remain in effect pending the outcome of the hearing.

(12) Except as provided in OAR 137-003-0528, when no request for a hearing is timely received, the Tester or Examiner has waived the right to a hearing and the notice becomes the final order by default.

(13) If a CDL Third Party Tester Certificate or CDL Third Party Examiner Certificate has been revoked, the Tester or Examiner must reapply for an original certificate after the period of revocation and must meet all the qualifications set forth in OAR Chapter 735, Division 60 rules.

(14) At the end of the suspension period of a CDL Third Party Tester Certificate, the CDL Third Party Tester Certificate is valid unless the certificate has expired. If the certificate has expired, the Tester must reapply for an original certificate and must meet all the qualifications set forth in OAR 735-060-0030.

Or. Admin. Code § 735-060-0145

DMV 5-2016, f. 9-22-16, cert. ef. 9/26/2016; DMV 1-2019, minor correction filed 01/07/2019, effective1/7/2019; DMV 13-2019, temporary amend filed 05/20/2019, effective 05/20/2019 through 11/15/2019; DMV 23-2019, amend filed 12/17/2019, effective 12/17/2019; DMV 2-2022, amend filed 01/25/2022, effective 1/25/2022

Statutory/Other Authority: ORS 184.619 & 807.080

Statutes/Other Implemented: ORS 807.040 & 807.070