STATEMENT OF SCOPE
Department of Transportation
Rule No.: | Chapter Trans 313 |
Relating to: | Breath Alcohol Ignition Interlock Devices |
1. Finding/nature of emergency (Emergency Rule only):
N/A
2. Detailed description of the objective of the proposed rule: The purpose of this rulemaking is to propose modifications to the regulations related to breath alcohol ignition interlock devices (“IIDs”).
Chapter Trans 313 was created in 1993, following the passage of 1991 Wis. Act 277. That legislation required one of various sanctions be applied to vehicles owned by a repeat drunk driver. For example, the act allowed judges to impose a requirement that driver’s operate only IID equipped vehicles as a condition of occupational licensing, and allowed a sentencing court to order an IID be installed in a vehicle owned by a repeat offender. That enactment also created Wis. Stat. s. 347.413(2), which required the State of Wisconsin Department of Transportation (“WisDOT”) to promulgate administrative rules establishing specifications and requirements for approved types of ignition interlock devices and their calibration, installation and maintenance. This rulemaking authority was subsequently rewritten into Wis. Stat. s. 110.10 by 1999 Wis. Act 109, but Ch. Trans 313 was not amended following that change. The rule has remained static since 1993. Since 1993, however, there have been many improvements in the design, performance and programming capability of ignition interlock devices. In this rulemaking, WisDOT proposes to update Ch. Trans 313 consistent with current ignition interlock programs, and to revise existing requirements for device operation, performance, programming and data reporting. WisDOT will also review its processes and procedures related to application for manufacturers to seek and maintain approval for sale, lease, installation and repair in this state, financial responsibility requirements, and manufacturer, service provider and vendor responsibilities. WisDOT may also update and revise administrative provisions related to IID warning labels, court and DMV processes and procedures, IID device removal and audit authority and procedures. WisDOT will examine the requirement that courts make the list of authorized service providers that the State Patrol currently maintains available to IID users. The list is currently published on the internet and there is no need for courts to distribute the list, as may have been the case in 1993.
The current regulation requires that IIDs used in Wisconsin “meet or exceed the standards established by the U.S. Department of Transportation, National Highway Traffic Safety Administration, identified as ‘Model Specifications for Breath Alcohol Ignition Interlock Devices’ 57 Fed. Reg. 67, pp. 11772-11787 (April 7, 1992).,” s. Trans 313.04(5)(a). This proposed rulemaking will examine and potentially adopt updated model specifications promulgated by the National Highway Traffic Safety Administration on and published May 8, 2013, at 78 Fed. Reg. 89, pp. 26849 – 26867. This rulemaking will also consider changes made to Wisconsin law by 2015 Wisconsin Acts 55 and 389, and changed federal laws related to ignition interlock programs in 23 U.S.C. s. 164 and 405 and in 23 C.F.R. part 1275. The rulemaking will consider interpreting the provisions of s. 343.301(3)(b), which provide that if a court finds that the person who is subject to an IID order has a household income that is at or below 150 percent of the nonfarm federal poverty line, “the court shall limit the person's liability… to one-half of the cost of equipping each motor vehicle with an ignition interlock device and one-half of the cost per day per vehicle of maintaining the ignition interlock device.” WisDOT will consider requiring vendors to accept payment at the rate of one-half their ordinary and usual installation and service rates from persons who qualify for the exemption. Finally, WisDOT will consider whether Wisconsin’s ignition interlock program is consistent with federal Constitutional requirements that generally require equal treatment under the law of Wisconsin residents and residents of other jurisdictions. The interpretation would be consistent with federal constitutional decisions involving the right of citizens to travel between states without discriminatory treatment.
3. Description of the existing policies relevant to the rule, new policies proposed to be included in the rule, and an analysis of policy alternatives:
The existing regulation establishes procedures to be used for the approval of IIDs for use in Wisconsin. WisDOT intends to examine these procedures, retain procedures that are beneficial, remove any that are no longer needed, and add requirements consistent with the evolution of IID programs. For example, in 1993, IIDs were primarily installed by device manufacturers; today they are often installed and serviced by third parties, such as mechanics. WisDOT expects to evaluate the usefulness of evaluating a manufacturer’s system of installation and service, statewide, as part of its authorization process for IIDs. WisDOT also expects to update evaluation criteria for devices, including criteria related to anti-circumvention devices and systems, alcohol concentration testing and computation, system security and anti-tampering mechanisms, customer data security, and other IID functions.
Current Ch. Trans 313 requires manufacturers to make limited representations as to a device’s capabilities as part of the application process, such as whether the device will prevent persons with prohibited alcohol concentration levels from operating a vehicle, that it does not impede safe operation of the vehicle, and that it minimizes inconvenience to vehicle operators, s. Trans 313.04(2)(a). WisDOT will examine whether to expand the certification requirement to include other relevant information, such as: - Identifying the manufacturer, manufacturing facility, and device.
- Identifying states where the device has been evaluated, and whether the device was approved or not approved for use in each state.
- Describing the manufacturer’s procedures for device installation, calibration, data collection, and data handling.
- Providing data and results produced by any independent laboratory evaluating whether a device meets or exceeds the U.S. Department of Transportation, National Highway Traffic Safety - Administration’s model specifications for IIDs published May 8, 2013, at 78 Fed. Reg. 89, pp. 26862–26867.
- Explaining service provider procedures for device installation, calibration, inspection and tamper detection, customer training, and data collection, downloading, inspection, and removal.
- Providing WisDOT with copies of customer forms, customer training materials, and all materials provided to customers at the time of installation.
- Providing WisDOT with copies of all manuals and materials related to quality, installation and repair of the device.
- Providing the fee schedule(s) used in this state by manufacturer’s service providers.
- Describing anti-circumvention features employed by the device.
- Describing any pre-warming process that may be utilized to ensure the device is operational in extreme cold weather conditions.
- Setting forth the manufacturer’s plans for providing service of the device in all areas of the state together with a list of all Wisconsin service provider locations.
- Providing complete data logs for evaluation of whether device programming meets all state and federal standards and requirements.
- Consumer contract provisions.
- Obtaining periodic or relevant updates of the above information.
WisDOT also proposes to evaluate whether specific devices or systems should be installed on IIDs used in this state, such as:
- Whether approved devices must utilize an alcohol-specific detector to determine alcohol concentration, such as an electrochemical fuel cell or other pre-approved advanced technology.
- Whether devices must utilize a pre-warming feature to reduce start times in cold temperatures.
- Whether device anti-circumvention features are sufficient to ensure only human breath is accepted as a valid sample.
- The minimum sample volume that should be required for testing.
- Whether security features in the devices adequately detect and prevent tampering and circumvention.
- Whether electronic anti-tampering features must be included on devices such as recording power disruptions, disconnections and reconnections of the device, detecting tampering and retaining data when disconnected from the vehicle power supply.
- Whether IIDs should include a camera that is capable of producing a digital image in all lighting conditions, so that it will be possible to capture an image of the individual using the device, any passenger assistance being provided, and to determine whether a circumvention device is being used. - If image capture is required, to establish storage requirements for the images captured, and provisions permitting the sharing of said data with law enforcement, treatment officials, parole or probation officers, courts, hearing officers, and the department.
- Whether to require devices to incorporate an automatic adjustment for daylight savings time or to report time in some standardized fashion.
- Whether to restrict emergency access codes so that they may only be used within a certain period after being provided and limited to short term or single use.
- Whether any device accommodations may be required by customers under the Americans with Disabilities Act and if so, the nature of those accommodations and procedures related to implementing accommodations.
- Whether to permit or require GPS and immediate data transfer via cellular telephone technology.
- Whether to incorporate standardized reporting language to simplify data interpretation by the courts, law enforcement, parole and probation officers, treatment officials and WisDOT.
The federal specifications require that all devices be ready for sampling within three minutes of activation at -40°C (-40°F). A pre-warming feature will help to reduce this time, which may be important in the northern areas of the state. Some ignition interlock programs require pre-warming or a warning that the vehicle could be inoperable below certain temperatures.
