Administrative Rules of the State of Montana

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 PUBLIC HEARING ON PROPOSED ADOPTION

TO: All Concerned Persons

1. On January 18, 2017, at 10:00 a.m., the Department of Justice will hold a public hearing in the Scott Hart Building Auditorium, 302 North Roberts Street, Helena, Montana, to consider the proposed adoption of the above-stated rules.

2. The Department of Justice will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact Department of Justice no later than 5:00 p.m. on January 9, 2017, to advise us of the nature of the accommodation that you need. Please contact John Paveo, Department of Administration, Human Resources Policy & Program Bureau, State Diversity Program Coordinator, P.O. Box 200127, Helena, Montana, 59620-0127; telephone (406) 444-3984; fax (406) 444-0703; or e-mail [email protected].

3. The rules as proposed to be adopted provide as follows:

NEW RULE I IGNITION INTERLOCK DEVICE CERTIFICATION (1) The Motor Vehicle Division Administrator or designee must issue a certification of an ignition interlock device (IID) before that device is authorized to be installed pursuant to Montana Code Annotated and the Administrative Rules of Montana.

AUTH: 61-8-441, MCA

IMP: 61-8-441, MCA

NEW RULE II 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, Montana Code Annotated, and ARM Title 23.

(2) Be installed in such a manner that it will not interfere with the normal operation of the vehicle after it has been started.

(3) Work accurately and reliably in an unsupervised environment and under extreme weather conditions.

(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 ml or 1.5 L of breath for an acceptable breath sample.

(5) Resist tampering and show evidence if tampering is attempted.

(6) Be difficult to tamper with or circumvent. This may be shown by:

(a) using special locks, seals, and installation procedures that prevent or record evidence of tampering and/or circumvention attempts;

(b) breath anti-circumvention features such as alternating breath flow, hum tone, breath temperature and any other Motor Vehicle Division-approved anti-circumvention features must be activated during all start up and random breath tests;

(c) changes in software and IID configuration, including anti-circumvention features and the State of Montana configuration profile must only be administered by the manufacturer.

(7) Minimize inconvenience of a sober driver.

(8) Operate reliably over the range of vehicle environments.

(9) The manufacturer must be adequately insured for product liability.

(10) Include a minimum supply of two disposable mouth pieces upon installation, designed to minimize the introduction of saliva into an IID, and an additional mouth piece with every calibration period.

(11) Automatically and completely purge residual alcohol before allowing subsequent tests.

(12) Be designed to permit a restart without testing within two minutes of a stall of 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. 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 a violation mode occurs 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;

(d) 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.

(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.

AUTH: 61-8-441, MCA

IMP: 61-8-441, MCA

NEW RULE III APPLICATION FOR CERTIFICATION FOR AN IGNITION IINTERLOCK 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) complete the application for certification for an IID;

(b) give the manufacturer name, physical, mailing, and e-mail addresses, and phone number;

(d) give the manufacturer and, if applicable, the vendor'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) give a detailed description of the IID, including the instruction, installation, and troubleshooting manuals;

(f) give written verification that the IID complies with all applicable standards set under the Model Specifications of the National Highway Traffic Safety Administration, Montana Code Annotated, and ARM Title 23, including [New Rule II];

(g) give a statement that:

(i) the applicant and their employees will cooperate with the Motor Vehicle Division at all times, including its inspection of the manufacturer or vendor's installation, service, repair, calibration, use, removal, or performance of IID;

(ii) the applicant agrees to give all downloaded IID data, reports, and information related to the IID to the Motor Vehicle Division in an approved electronic format;

(iii) the applicant or their employees agree to give testimony relating to any aspect of the installation, service, repair, calibration, use, removal, or performance of the ignition interlock at no cost on behalf of the State of Montana or any other political subdivision;

(h) give the IID configuration profile;

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

(i) the test results of the IID;

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

(iii) the manufacturing date of the IID test samples;

(iv) the serial numbers and firmware and software versions of the devices tested;

(v) all technical specifications describing the accuracy and reliability of the device;

(vi) the test results must verify that the proposed IID meets or exceeds the model specifications of the National Highway Traffic Safety Administration and any additional requirements established by the State of Montana;

(vii) authorizing signatures, and attestation by the corporate officers of the independent laboratory indicating the accuracy of the reported results;

(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) the applicant must bear all costs associated with the laboratory analysis and required reporting;

(l) if specifically requested by the Motor Vehicle Division, give two IIDs for field and laboratory testing;

(m) give the alcohol reference value and type of calibration device used to check the IID.

AUTH: 61-8-441, MCA

IMP: 61-8-441, MCA

NEW RULE IV RENEWAL OF AN IGNITION INTERLOCK CERTIFICATION

(1) A manufacturer must submit a written request to renew an IID certification to the Motor Vehicle Division no earlier than 90 days prior to and no later than 60 days prior to the expiration of the IID certification. On a case-by-case basis, the Motor Vehicle Division may accept an application for renewal submitted by a vendor.

(2) An applicant requesting a renewal for an IID certification must:

(a) submit the completed Motor Vehicle Division application for renewal of IID certification; and

(b) comply with all requirements detailed in [New Rule III].

AUTH: 61-8-441, MCA

IMP: 61-8-441, MCA

NEW RULE V MANUFACTURER OR VENDOR CERTIFICATION AND INSPECTION (1) A manufacturer or vendor must submit an application to the Motor Vehicle Division requesting a letter of manufacturer or vendor certification to repair, install, remove, or service a certified IID.

(2) The manufacturer or vendor must:

(a) complete the Motor Vehicle Division application form;

(b) give the manufacturer or vendor's name, physical, mailing, and e-mail addresses, and phone number;

(c) give the manufacturer or vendor's representative 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) give a written statement from the manufacturer that authorizes the vendor to install the manufacturer's certified IID;

(f) give a certificate of insurance showing that they have adequate liability insurance;

(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 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, any additional charges anticipated for routine calibration and service checks and what items, if any, are given without charge; and

(iv) gives the lessee written notice of any changes in the statement of charges regardless of what person or agency requested the change, prior to the implementation of such changes.

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

(i) give a written statement describing the calibration procedures and the interval the restricted driver must submit the IID for calibration and inspection;

(j) attach to the application a list of all service centers, including:

(i) the physical, mailing, and e-mail addresses, and phone numbers of each service center;

(ii) the service center's hours of operation;

(iii) the type of the certified IID serviced;

(iv) the type of calibration device used for the serviced IID;

(v) a copy of IID data reader download procedures; and

(vi) a list of all fees that may be charged to the lessee to install the manufacturer's certified IID.

AUTH: 61-8-441, MCA

IMP: 61-8-441, MCA

NEW RULE VI MANUFACTURER, VENDOR, AND SERVICE CENTER INSPECTION (1) A vendor or manufacturer must agree to allow access for Motor Vehicle Division employees or their designee to conduct an inspection of the manufacturer, vendor, or service center at any time during scheduled business hours to ensure compliance.

AUTH: 61-8-441, MCA

IMP: 61-8-441, MCA

NEW RULE VII 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.

(2) Upon receipt of an application for certification or renewal, the administrator or designee must review the application for completeness.

(a) If the application is incomplete, the administrator or designee with total discretion may either:

(i) contact the applicant to request missing information. The applicant has 20 days to give the requested information or the administrator or designee must deny the application; or

(ii) return to the applicant the incomplete application with notification to resubmit a completed application;

(b) If the application is complete, approve when all requirements are met and issue the IID, manufacturer, or vendor certification. The certification must be sent to the applicant by certified mail return receipt requested;

(c) Deny a completed application when all requirements are not met. If denied, send a written notification of denial to the applicant by certified mail return receipt requested;

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

(3) If an application is denied, the applicant must wait ninety days before submitting a new application.

(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.

(5) The Motor Vehicle Division has absolute discretion to review the certification at any time, including requesting sample devices to conduct IID field and laboratory tests.

AUTH: 61-8-441, MCA

IMP: 61-8-441, MCA

NEW RULE VIII REVOCATION OR SURRENDER OF A CERTIFICATION

(1) The holder of a certification must send immediate notice to the Motor Vehicle Division if it is no longer in business or if it wishes to voluntarily relinquish its certification.

(2) The Motor Vehicle Division administrator or designee must revoke a letter of certification if it receives notice that the holder of a letter of certification is no longer in business or that the holder wishes to voluntarily relinquish its certification.

(3) The administrator or designee may revoke a letter of IID certification for an IID for the holder's violation of any of the laws or regulations related to the installation, servicing, monitoring, removal and calibration of IIDs, including but not limited to additional requirements including Montana statutes or administrative rules.

(4) The administrator or designee must issue a written notice of revocation and send it to the holder of the letter of certification for ignition interlock.

(5) Upon revocation of a letter of IID certification:

(a) the Motor Vehicle Division must notify all vendors that all of the uncertified IIDs must be removed and replaced by a certified IID within sixty-five days of the revocation;

(b) the vendor must notify all affected lessees of the revocation and the requirement the uncertified IID must be removed and replaced with a certified device within the sixty-five days and submit proof to the Motor Vehicle Division;

(c) upon revocation of an IID certification, the manufacturer's IID(s) will be removed from the list of certified IIDs on the Motor Vehicle Division's web site.

(6) Upon revocation of a letter of manufacturer or vendor certification:

(a) the vendor must notify all affected lessees of the revocation and the requirement they must transfer to a certified manufacturer or vendor within the sixty-five days and submit proof to the Motor Vehicle Division;

(b) upon revocation of a certification, the manufacturer's IID(s) will be removed from the list of certified manufacturers or vendors on the Motor Vehicle Division's web site.

AUTH: 61-8-441, MCA

IMP: 61-8-441, MCA

NEW RULE IX MODIFICATION TO A CERTIFIED IID (1) A certification 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) A manufacturer must resubmit evidence of compliance as required by the Administrative Rules of Montana to the Motor Vehicle Division within thirty days of notifying the Motor Vehicle Division of a material modification.

(3) The Motor Vehicle Division will determine if the device must be submitted for recertification.

AUTH: 61-8-441, MCA

IMP: 61-8-441, MCA

NEW RULE X CERTIFIED IID INSTALLATION, MAINTENANCE, CALIBRATION, REMOVAL, AND REPORTS (1) Each restricted driver must:

(a) have a certified IID installed in any vehicle they drive prior to the Motor Vehicle Division issuing them a probationary or restricted driving permit;

(b) submit the vehicle and installed IID for calibration and inspection at intervals not to exceed sixty-five days;

(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 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) the restricted driver is thoroughly trained on the proper use and functionality of an IID; and

(c) that a user reference, operation, and problem-solving guide in English or Spanish is provided to the restricted driver when an IID is installed.

(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 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. The serial number of the device must be kept on record for three years. An IID removed from service for not passing calibration 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;

(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).

(5) The certification 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) determine a restricted driver's compliance with the referring agency's requirements;

(c) retain all information obtained as a result of each calibration or inspection. Information must be retained by the manufacturer, vendor, or service center for three years from the date the IID is removed from the vehicle;

(d) not authorize or assist with the disconnection of an IID, or enable the use of any "emergency bypass" mechanism or any other "bypass" procedure that allows a person restricted to use the vehicle equipped with a functioning IID, to start or operate a vehicle without providing all required breath samples. Doing so may subject the person to criminal prosecution and may cause the revocation of a certification; and

(e) report all known IID circumventions or tampering to the Motor Vehicle Division in a Motor Vehicle Division-approved electronic format within seven 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.

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

(7) 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 vehicle license registration number of the single vehicle in which the IID was installed;

(d) the toll free telephone number, and certification number of the manufacturer or vendor who prepared the report for the IID.

(8) Under no circumstances will a manufacturer, service center, or ignition interlock technician knowingly permit a restricted driver to drive a vehicle not equipped with a functioning IID.

(9) The sale or use of any type of remote code allowing a restricted driver to bypass a lockout condition or any user to not provide a breath sample on vehicle start up is prohibited.

(10) Upon request, the manufacturer or vendor must provide additional reports in a format acceptable to and at no cost to the Motor Vehicle Division and the referring agency.

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

AUTH: 61-8-441, MCA

IMP: 61-8-441, MCA

NEW RULE XI 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) guarantee repair or replacement of a defective IID within the state of Montana within a maximum of forty-eight hours of receipt of a complaint or known failure of an IID;

(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 mile radius of his or her place of residence or to request a waiver of this requirement due to hardship;

(c) provide written notification of any changes to a manufacturer's service center network to the Motor Vehicle Division within seven days of such change;

(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.

(2) The manufacturer must provide to the Motor Vehicle Division proof on or before the expiration date listed on the current valid 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) Liability coverage must include, but not be limited to: Defects in product design, materials, and workmanship during manufacture, calibration, installation, removal, and all completed operations. Such insurance must be provided by a company authorized to offer such coverage in the state, and such company must include the State of Montana as an additional insured, and must agree to notify the Motor Vehicle Division not less than thirty days before the expiration or termination of such coverage. Insurance coverage required in this section must be in addition to, and not considered a replacement for other coverage required by the Administrative Rules of Montana.

AUTH: 61-8-441, MCA

IMP: 61-8-441, MCA

NEW RULE XII 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 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) the administrator or designee will give the applicant or certificate holder notice of the action and an opportunity to be heard prior to denial, suspension, or revocation of the letter of certification, except as provided in (2);

(b) upon receiving notice of the action, the applicant or certificate holder may request an administrative hearing to contest the decision. A request for an administrative hearing must:

(i) be made in writing and mailed to the Motor Vehicle Division; and

(ii) be received by the patrol's Motor Vehicle Division within twenty business days after the date of the notice of action.

(2) The administrator or designee may, without prior notification, suspend a letter of certification for a device, service center, or ignition interlock technician if the administrator or designee finds that there is danger to the public health, safety, or welfare that requires immediate action.

(3) Failure to request a hearing or failure to appear at a hearing, a prehearing conference, or any other stage of an adjudicative proceeding may constitute default and result in the entry of a final order.

(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 holder.

(5) Unless the administrator or designee finds that immediate revocation is necessary or unless the certificate holder timely requests a hearing as provided under this section, a decision to revoke or suspend will be effective thirty days from the date of the notice of action decision unless the administrator or designee finds that immediate revocation is necessary.

AUTH: 61-8-441, MCA

IMP: 61-8-441, MCA

NEW RULE XIII HEARING AND APPEAL (1) Hearings under this chapter will be held pursuant to the Montana Administrative Procedure Act.

AUTH: 61-8-441, MCA

IMP: 61-8-441, MCA

REASON: The 1997 Montana Legislature passed Senate Bill 303. Section 3 of that bill was codified as 61-8-441, MCA. That section of law directed the Montana Department of Justice to adopt rules providing for the approval of ignition interlock devices and the installation, calibration, repair, and removal of approved devices. These rules are proposed to fulfill that legislative mandate.

4. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Michele Snowberger, Department of Justice, Motor Vehicle Division, P.O. Box 201430, Helena, Montana, 59620-1430; telephone (406) 444-1776; fax (406) 444-2086; or e-mail [email protected], and must be received no later than 5:00 p.m., February 3, 2017.

5. Peter Funk, Assistant Attorney General, Department of Justice, has been designated to preside over and conduct this hearing.

6. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 4 above or may be made by completing a request form at any rules hearing held by the department.

7. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register. The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

8. The bill sponsor contact requirements of 2-4-302, MCA, do not apply. Neither the Montana Secretary of State's office nor the Legislative Services Division has any valid contact or address information on the primary bill sponsor of Senate Bill 303 from the 1997 Montana Legislature.

9. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption of the above-referenced rules will not significantly and directly impact small businesses.

/s/ J. Stuart Segrest /s/ Timothy C. Fox

J. Stuart Segrest Timothy C. Fox

Rule Reviewer Attorney General

Department of Justice

Certified to the Secretary of State November 28, 2016.