BEFORE THE DEPARTMENT OF JUSTICE

OF THE STATE OF MONTANA

 

In the matter of the adoption of New Rules I through XIII pertaining to Ignition Interlock Devices

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NOTICE OF ADOPTION

 

TO: All Concerned Persons

 

1. On December 9, 2016, the Department of Justice published MAR Notice No. 23-3-245 pertaining to the public hearing on the proposed adoption of the above-stated rules at page 2305 of the 2016 Montana Administrative Register, Issue Number 23. On December 23, 2016, the Department of Justice published an amended notice of proposed adoption of the above-stated rules at page 2394 of the 2016 Montana Administrative Register, Issue Number 24.

 

2. The department has adopted the following rules as proposed: New Rule I (23.3.955), New Rule VI (23.3.970), New Rule VIII (23.3.976), and New Rule XIII (23.3.991). 

 

3. The department has decided not to adopt New Rule IV, as explained in the response to Comment 5.

 

4. The department has adopted the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:

 

NEW RULE II (23.3.957)  MANDATORY REQUIREMENTS FOR AN IGNITION INTERLOCK DEVICE An IID must meet the following requirements before it may be certified:

(1) Comply with all applicable standards set under the Model Specifications of the National Highway Traffic Safety Administration Model Specifications for Breath Alcohol Ignition Interlock Devices 78 FR 26849-26867 (2013), Montana Code Annotated, and ARM Title 23.

(2) and (3) remain as proposed.

(4) Require a deep lung breath sample or use an equally accurate measure of blood alcohol concentration equivalence. This requirement is met if the IID allows a minimum of 1500 1200 ml or 1.5 1.2 L of breath for an acceptable breath sample.

(5) through (11) remain as proposed.

(12) Be designed to permit a restart without testing within two minutes of a stall of or when the ignition has been turned off, except a restart will not be permitted during a violation reset.

(13) Once there is a failed start attempt, require an increasing wait period for subsequent attempts to initially start the vehicle. After a first failed start attempt the wait period is 5 minutes, after a second failed start attempt the wait period is 10 minutes, and for all subsequent failed start attempts within a 2-hour period the wait period is 30 minutes. The device must be capable of notifying the driver of this time period. Acceptable forms of notification are use of an indicator light, audible tone, voice modulation, and/or count down timer.

(14) Enter into Require a violation mode occurs reset when the driver has:

(a) failed an initial start attempt four times within any two-hour period;

(b) disconnected the control head after start up;

(c) (b) circumvented or tampered with the IID device;

(d) (c) failed to have the IID serviced within the time period described in this chapter.

(15) Within five days of a violation mode, the restricted driver must service the vehicle where it must be calibrated, downloaded, and fully inspected. If the driver fails to service the vehicle within 10 days of violation reset, the device must be put into lockout mode preventing the vehicle from starting.

(16) Uniquely identify and record each time the vehicle is attempted to be started and/or started, the results of all tests, retests, or failures as either being a malfunction of the device or from the driver not meeting the requirements, how long the vehicle was operated, any indication of bypassing or tampering with the IID, and whether the device entered into a violation mode reset.

(17)  To be certified, an ignition interlock device must be capable of being preset, by only the manufacturer, at any fail level from .02 through .09 g/210L BrAC (plus or minus .005 g/210L BrAC). The actual setting of each ignition interlock device, unless otherwise mandated by the originating court, must be .025 g/210L BrAC. The capability to change this setting must be made secure by the manufacturer.

 

NEW RULE III (23.3.960) APPLICATION FOR CERTIFICATION FOR AN IGNITION INTERLOCK DEVICE (1) A manufacturer must submit an application to the Motor Vehicle Division requesting a letter of certification for an IID.  On a case-by-case basis, the Motor Vehicle Division may accept an application submitted by a vendor.

(2) The manufacturer or vendor must:

(a) and (b) remain as proposed.

(c) if applicable, give the vendor's name, physical, mailing, and e-mail addresses, and phone number;

(d) (c) give the manufacturer and, if applicable, the vendor's manufacturer's representative's name, physical, mailing, and e-mail addresses, and phone number. The representative is the employee designated to act on behalf of and/or represent the applicant in all matters relating to the IID certification process, compliance, and reporting requirements with the State of Montana;

(e) (d) give a detailed description of the IID, including the instruction, installation, and troubleshooting manuals;

(f) (e) give written verification that the IID complies with all applicable standards set under the Model Specifications of the National Highway Traffic Safety Administration Model Specifications for Breath Alcohol Ignition Interlock Devices 78 FR 26849-26867 (2013), Montana Code Annotated, and ARM Title 23, including ARM 23.3.957 [New Rule II];

(g) (f) give a statement that:

(i) through (iii) remain as proposed.

(h) (g) give the IID configuration profile;

(i) (h) submit a report from an International Organization For Standardization certified testing laboratory documenting:

(i) remains as proposed.

(ii) the test results must be dated on or after May 8, 2014 2013;

(iii) through (v) remain as proposed.

(vi) the test results must verify that the proposed IID meets or exceeds the model specifications of the National Highway Traffic Safety Administration Model Specifications for Breath Alcohol Ignition Interlock Devices 78 FR 26849-26867 (2013) and any additional requirements established by the State of Montana;

(vii) remains as proposed.

(j) the applicant must give certification that the proposed IIDs are manufactured in a facility that is ISO 9001 and ISO 14001 Quality Management Systems accredited;

(k) through (m) remain as proposed but are renumbered (i) through (k).

 

NEW RULE V (23.3.965) MANUFACTURER OR VENDOR CERTIFICATION AND INSPECTION (1) through (2)(b) remain as proposed.

(c) give the manufacturer's or vendor's representative's name, physical, mailing, and e-mail addresses, and phone number.  The manufacturer representative is the manufacturer or vendor's employee designated to act on behalf of and/or represent the manufacturer in all matters relating to the interlock certification process with the State of Montana;

(d) give the manufacturer or vendor's liaison's name, physical, mailing, and e-mail addresses, and phone number.  The manufacturer's liaison is the manufacturer or vendor's employee designated to act on behalf of and/or represent the manufacturer in all matters relating to repair, installation, and removal of IIDs;

(e) and (f) remain as proposed.

(g) certify that each lease agreement for an IID:

(i) gives a warning that a person who knowingly tampers with, circumvents, or otherwise misuses the IID is subject to criminal prosecution;

(ii) states describes all fees and rates a lessee may be charged to install, remove, repair, or service an IID;

(iii) gives lessees a statement of charges clearly specifying warranty details, monthly lease amount, and any other fees charged by the manufacturer or vendor any additional charges anticipated for routine calibration and service checks and what items, if any, are given without charge; and

(iv) remains as proposed.

(h) give a certification that the manufacturer or vendor services the entire State of Montana with a service center within 100 150 miles of any individual who must have an IID installed.  If a manufacturer or vendor cannot give a fixed location for the 100 150-mile requirement, then a detailed statement on how the manufacturer or vendor gives service to all of the State of Montana, including mobile or mail programs.  A manufacturer or vendor may request a waiver of this requirement due to hardship;

(i) and (j) remain as proposed.

 

NEW RULE VII (23.3.974) MOTOR VEHICLE DIVISION ISSUANCE OR RENEWAL OF CERTIFICATION (1) The Motor Vehicle Division administrator or designee is authorized to issue or renew an IID, manufacturer, or vendor certification. The Motor Vehicle Division administrator or designee is authorized to renew a manufacturer or vendor certification.

(2) through (2)(c) remain as proposed.

(d) The Motor Vehicle Division may deny an application for certification for a manufacturer or vendor if the number of certification certificate holders exceeds the ability to economically sustain more than a limited number of vendors.

(3) remains as proposed.

(4) A certification is effective from the date stated on the letter and is valid for three years or until it is surrendered or revoked, except that a manufacturer is not required to renew a certified IID.

(5) remains as proposed.

 

NEW RULE IX (23.3.978) MODIFICATION TO A CERTIFIED IID (1) A certification certificate holder must immediately notify the Motor Vehicle Division, in writing, of any material modification to a certified IID.  A material modification is any addition or reduction in features, software version changes, configuration profile changes, or alteration in the components and/or the design of the certified IID.

(2) and (3) remain as proposed.

 

NEW RULE X (23.3.980) CERTIFIED IID INSTALLATION, MAINTENANCE, CALIBRATION, REMOVAL, AND REPORTS (1) remains as proposed.

(2) At the time of installation, the certificate holder must ensure:

(a) the installer follows the manufacturer's instructions for proper installation and affixes to the IID a label containing substantially complying with the following notation: "Warning - This IID has been installed under the laws of the State of Montana. Attempts to disconnect, tamper with, or circumvent this IID may subject you to criminal prosecution. For more information, call (insert manufacturer, vendor, or service center's toll free number).";

(b) and (c) remain as proposed.

(3) At the time of calibration, the service center must:

(a) download data contained in an IID's memory or data logger. The manufacturer or vendor certification certificate holder must make an electronic copy of the client data and the results of each examination; and

(b) remove from service any IID not passing calibration no longer meeting the certification standards. The serial number of the device must be kept on record for three years. An IID removed from service for not passing calibration no longer meeting the certification standards may be placed back in service only if it is repaired to meet the standards and all repairs are documented. These records must be kept for three years.

(4) At the time of removal, the certification holder must:

(a) remove the IID at the direction of the referring agencies at the end of the probationary period;

(b) remove the IID if the Motor Vehicle Division notifies the holder that the device is no longer certified. The holder must ensure the immediate replacement with a certified IID;

(c) return the vehicle in normal operating condition after removal;

(d) remove the IID, if the account becomes sixty days past due. If the restricted driver does not appear for a removal appointment and makes no attempt to appear to remove the IID, the replacement cost of the IID may be added to the lessee's account. The holder must immediately notify the referring agency and the Motor Vehicle Division of the removal of the IID; and

(e) provide any final report requested by the referring agency or the Motor Vehicle Division to the requestor once the IID has been removed from a restricted driver's vehicle(s).

(4) At the time of removal, the certificate holder must:

(a) remove the IID at the direction of the referring agencies at the end of the probationary period;

(b) remove the IID if the Motor Vehicle Division notifies the holder that the device is no longer certified. The holder must ensure the immediate replacement with a certified IID;

(c) remove the IID, if the account becomes sixty days past due for nonpayment of fees;

(d)  remove the IID, upon written authorization from the Motor Vehicle Division;

(e) return the vehicle in normal operating condition after removal;

(f)  notify the referring agency and the Motor Vehicle Division of the removal of the IID within 24 hours of the removal; and

(g) provide any final report requested by the referring agency or the Motor Vehicle Division to the requestor once the IID has been removed from a restricted driver's vehicle(s).

(5)  If the restricted driver does not appear for a removal appointment and makes no attempt to appear to remove the IID, the replacement cost of the IID may be added to the lessee's account. 

(5) (6) The certification certificate holder must:

(a) ensure all downloaded data is reviewed. Any evidence of noncompliance, violations, or signs of tampering and/or circumvention must be reported as requested by, and in a format acceptable to the referring agency and the Motor Vehicle Division;

(b) through (d) remain as proposed.

(e) report all known IID circumventions or tampering to the Motor Vehicle Division in a Motor Vehicle Division-approved electronic format within seven ten days of determining that an IID was circumvented or tampered with and if requested, must report to the referring agency in a similar time line.

(7)  The certificate holder may permit:

(a)  the use of remote codes for vehicle repair by a mechanic other than the restricted driver; and

(b) the use of remote codes to override a vehicle lockout mode to facilitate the servicing of a device.

(6) (8) The manufacturer or vendor must notify the referring agency of any violation resets within five ten days of the vehicle being serviced following a violation reset in a format acceptable to the referring agency.

(9)  The manufacturer or vendor must notify the referring agency of any device being placed in lockout mode preventing the vehicle from being started within ten days of the vehicle being serviced following a violation reset in a format acceptable to the referring agency.

(7) (10) In addition to any other information required by the Motor Vehicle Division or by a referring agency, all reports to the Motor Vehicle Division and the referring agency must include:

(a) the full name, address, and driver's license number of the restricted driver, lessee, and registered owner;

(b)  the full name and address of the lessee and registered owner of the vehicle the device is installed in;

(b) through (d) remain as proposed but are renumbered (c) through (e).

(8) through (10) remain as proposed but are renumbered (11) through (13).

(11) (14) Retention of the record of installation, calibrations, downloads, service and associated invoices must be maintained by the certification certificate holder for a minimum of three years.

 

NEW RULE XI (23.3.984) ADDITIONAL REQUIREMENTS 

(1) Notwithstanding other provisions of this chapter, each manufacturer of a certified IID, either on its own or through a vendor approved to do so by the manufacturer must:

(a) remains as proposed.

(b) demonstrate to the satisfaction of Motor Vehicle Division, a service delivery plan under which any restricted driver may obtain installation and routine service of that manufacturer's IID within a one hundred fifty-mile radius of his or her place of residence or to request a waiver of this requirement due to hardship;

(c) remains as proposed.

(d) maintain a twenty-four hour, three hundred sixty-five days a year toll-free telephone number for lessees and/or restricted drivers to call if they have problems with a leased IID.  Calls must either be answered by an ignition interlock technician qualified to service the manufacturer's IIDs, or the call must be returned by a qualified technician within thirty minutes of the original call. an individual who is able to make an initial identification of the problem, or the call must be returned within one hour of the original call. If the problem cannot be immediately resolved, the original call must be forwarded to an ignition interlock technician qualified to service the manufacturer's IIDs within 12 hours of the original call.

(2) The manufacturer or vendor must provide to the Motor Vehicle Division proof a certificate of insurance on or before the expiration date listed on the current valid certificate of insurance on file with the Motor Vehicle Division that the manufacturer has products liability insurance coverage with minimum liability limits of one million dollars per occurrence and three million dollars aggregate.

(3) The manufacturer or vendor certification holder must provide to the Motor Vehicle Division proof on or before the expiration date listed on the current valid insurance on file that the certification holder has liability insurance with minimum liability limits of one million dollars per occurrence and three million dollars aggregate.

(4) remains as proposed but is renumbered (3).

 

NEW RULE XII (23.3.990)  REVIEW OF DENIAL, SUSPENSION, OR REVOCATION OF CERTIFICATION (1) The administrator or designee may deny, suspend, or revoke a letter of certification for an IID, manufacturer, or vendor certification receiving evidence that any letter of certification certificate holder has failed to comply or no longer complies with any requirement or provision of law or this chapter.  The following process will be used:

(a) through (3) remain as proposed.

(4) Administrative proceedings for revocation or other action will be promptly instituted and determined.  The administrator or designee must give notice as practicable to the letter of certification certificate holder.

(5) remains as proposed.

 

5. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:

 

Comment 1:  Numerous commenters requested definitions for various terms, as well as clarification on the difference between certificate holder and certification holder.

 

Response 1: The department agrees with the request to consistently refer to terms throughout the proposed rules. The department has amended New Rules II, VII, IX, X, XI, and XII to use a specific term consistently throughout the rules. The department also agrees that a definition rule is necessary. Based on these comments, the department will initiate a separate rulemaking to include a definition rule.

 

Comment 2: Commenters objected to certain requirements, including an IID must meet the current NHTSA specifications without having to revise these rules; and listed breath volume standard is not the correct NHTSA specification.

 

Response 2: The department agrees. The department has amended New Rules II and III so that all references require adherence to the 2013 NHTSA standards and the breath volume standard correctly states the 2013 NHTSA breath volume standard.

 

Comment 3:  Commenters objected to the proposed mandatory requirements for an ignition interlock device rule, including: restarts during a violation reset; the lack of language to specify the increased wait period for failed start attempts; the conditions of a device being placed in a violation reset; not all violations requiring a violation reset were specified in this rule; the length of time a vehicle must be serviced after being placed in violation mode; the lack of consistency between this rule and the certified IID installation, maintenance, calibration, removal, and reports rule; no requirement to disable a device in violation reset that was not serviced as required; lack of alcohol concentration fail level; failure to include nonpayment of fees as a violation reportable to the courts.

 

Response 3:  The department agrees in part and disagrees in part. The department agrees and has amended New Rule II as follows: a restart without testing may be performed within 2 minutes of a stall or when the ignition has been turned off; requires specific wait periods for failed start attempts; specifies every violation requiring a device to be placed in a violation reset, excluding a control head disconnection; requires all devices to be serviced within 10 days of the violation reset; requires the IID to be disabled if the device is not serviced as required; standardizes the reporting requirements in the rules; establishes the alcohol concentration fail level.

 

The department disagrees and has not amended New Rule II about classifying a violation as any nonpayment of fees.

 

Comment 4:  Commenters objected to various items in the application for certification for an ignition interlock device rule. These objections included, permitting a vendor to apply for an IID certification; lack of clarity because the rule referred to a manufacturer and a vendor representative in the same subsection; the requirement for when a IID must be tested and certified; to permit a device to be tested under the 1992 standards so long as the 2013 requirements were met; the requirement that the manufacturer plant be ISO certified plant; the ability for current vendors to be grandfathered into these rules.

 

Response 4: The department agrees in part and disagrees in part. The department agrees and has amended New Rule III to only allow a manufacturer to apply for an interlock device certification; corrects the consistency of terms; requires all test dates must be dated on or after May 8, 2013; strikes the requirement for all manufacturers' plants be ISO certified; and establishes an effective date for these regulations under a new rule. Based on the comments, the department rewrote (4) to move subsections, add requirements, and improve clarity.

 

The department disagrees and has not amended New Rule III about allowing a pre-2013 test date to be acceptable.

 

Comment 5:  A commenter objected to the annual renewal of an ignition interlock certification and requested New Rule IV be struck.

 

Response 5: The department agrees and strikes New Rule IV and any reference in any other rule.

 

Comment 6: Various commenters objected to provisions of the manufacturer or vendor certification and inspection rule. These objections included, the requirement to list service center fees in the lease and as part of the certification application; the requirement to list the data reader download procedures in the certification application; the requirement a vendor provide a service center within specific geographic ranges; the absence of a statement that mobile or mail-in process is an acceptable method of servicing IIDs.

 

Response 6:  The department agrees in part and disagrees in part. The department agrees and has amended New Rule V as follows: strikes the requirement to list all service center fees in the lease as part of the certification application; increases the radius to the nearest service center; adds a provision to permit mobile or mail-in processes to service IIDs.

 

The department disagrees and has not amended New Rule V to remove the IID data reader download procedures included in the certification application.

 

Comment 7:  Commenters objected to various provisions of the certified IID installation, maintenance, removal, and reports rule. These objections included, more flexible language to warn about the penalties for tampering; the process for determining when a device failed calibration; clarification for past-due accounts; the strict requirements for when an IID may be removed from a vehicle and the notification of removal; lack of clarity of reporting requirements and inconsistency in these requirements between rules; the prohibition of using remote codes; the requirements of recording certain information for the registered owner; the timing of calibration and inspection; the lack of the rule to make it a crime to fail to return an IID.

 

Response 7:  The department agrees in part and disagrees in part. The department agrees and has amended New Rule X as follows: allows for substantial compliance with the tampering warning label; clarifies the requirement to remove any IID that no longer meets the certification standards; specifies that an IID may be removed for nonpayment of fees; specifies the conditions that an IID may be removed—to include, the end of the probationary period, or at the request of the restricted driver; overall clarifies the various reporting requirements amongst all the rules; permits remote access codes to bypass a lockout to be used under certain circumstances; and strikes certain requirements for personal information on registered owners.

 

The department disagrees and has not amended New Rule X about the requirement for devices to be calibrated every 65 days. The department disagrees and has not amended New Rule X to make it a crime for a driver not to return an IID as requested. This request is beyond the scope of the department's rulemaking authority.

 

Comment 8:  Commenters objected to various provisions of the additional requirement rule, including the requirement to have a service technician available to answer service calls; the required call back period for a service call; the limitation of liability insurance to only product liability; and the requirement of insurance limits.

 

Response 8: The department agrees in part and disagrees in part. The department agrees and has amended New Rule XI as follows: increases the length of time to return a service call; alters the requirement of the service technician to respond to the original call; requires the manufacturer to file a certificate of insurance and strikes the reference to product liability.

 

The department disagrees in part and has not amended the insurance limits. The department believes it is crucial that a manufacturer or vendor has the financial ability to resolve a claim against it.

 

Comment 9:  Commenters requested the ability to allow for a lower breath sample volume for a restricted driver that provides medical proof that they are unable to provide the standard breath volume sample.

 

Response 9:  The department agrees it is necessary to create an exemption to the minimum breath volume sample for diminished breath capacity. Based on these comments, the department will initiate a separate rulemaking to include this exemption.

 

Comment 10:  A commenter objected because it was not clear the department intended to regulate service centers and to clarify the manufacturer's role of providing customer service.

 

Response 10:  The department disagrees with this comment. New Rule X imposes various requirements on manufacturers, vendors, and service centers in the installation, calibration, maintenance, removal, and reports of ignition interlock devices.

 

Comment 11:  A commenter requested the department specify the requirements for running retests.

 

Response 11:  The department disagrees. The department determined that the safety concern of requiring a rolling retest outweighs the benefits of ensuring a restricted driver does not consume alcohol after a successful start.  There is nothing in New Rule II that would prevent the appropriate judicial authority from requiring a rolling retest for a specific driver.

 

Comment 12: Commenters requested the department address the ability of a restricted driver to simply use another vehicle that does not have an interlock device installed, the ability for individuals to pay for the interlock and the creation of an indigency program, the ability for interlock providers to be reimbursed for losses, and the ability for an IID manufacturer or vendor to go offsite and retrieve the IID.

 

Response 12: These comments do not address the proposed rules and go outside of the scope of the department's rulemaking authority.  The department cannot control an individual's decision to drive a vehicle without an IID.  The department notes that if a driver is found to be in violation of their driver license restriction, they may be charged and prosecuted with violating the terms of their restricted driver license.

 

            6. The effective date for the adoption of the above-stated rules, with the exception of New Rule IV, which is not being adopted, is January 1, 2018.

 

/s/ Matthew T. Cochenour                         /s/ Timothy C. Fox                          

Matthew T. Cochenour                              Timothy C. Fox

Rule Reviewer                                           Attorney General

                                                                   Department of Justice

           

Certified to the Secretary of State June 12, 2017.