Or. Admin. Code § 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.
Notes
Statutory/Other Authority: ORS 184.619 & 807.080
Statutes/Other Implemented: ORS 807.040 & 807.070
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