WSR 10-20-130

PROPOSED RULES

WASHINGTON STATE PATROL


[ Filed October 5, 2010, 10:36 a.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 10-10-090.

     Title of Rule and Other Identifying Information: Chapter 204-50 WAC, Ignition interlock breath alcohol devices.

     Hearing Location(s): Washington State Patrol, Seattle Crime Laboratory, Large Conference Room, 2203 Airport Way South, Suite 250, Seattle, WA 98134-2028, on November 12, 2010, at 9:00 a.m.

     Date of Intended Adoption: November 12, 2010.

     Submit Written Comments to: Trooper Steve Luce, 811 East Roanoke Street, Seattle, WA 98100, e-mail steve.luce@wsp.wa.gov, fax (206) 720-3023, by November 10, 2010.

     Assistance for Persons with Disabilities: Contact Trooper Steve Luce by November 10, 2010, (206) 720-3018.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Updating chapter 204-50 WAC to include but not limited to certification of ignition interlock service centers, ignition interlock technicians, and updating calibration procedures of ignition interlock devices (IID).

     Changes will also provide clarifying language and clean up to existing language.

     Reasons Supporting Proposal: Provides updates and clarification to the language.    

     Statutory Authority for Adoption: RCW 43.43.395, 46.37.005, and 46.04.215.

     Statute Being Implemented: RCW 43.43.395.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: , governmental.

     Name of Agency Personnel Responsible for Drafting: Trooper Steve Luce, 811 East Roanoke Street, Seattle, WA 98100, (206) 720-3018; Implementation and Enforcement: Impaired Driving Section, 811 East Roanoke Street, Seattle, WA 98100, (206) 720-3018.

     A small business economic impact statement has been prepared under chapter 19.85 RCW.

Small Business Economic Impact Statement

     SUMMARY OF PROPOSED RULES: The Washington state patrol impaired driving section (IDS) is proposing amendments to chapter 204-50 WAC, Breath alcohol ignition interlock devices.

     The purpose of this chapter is to outline the rules pertaining to all aspects of breath alcohol IIDs under chapter 204-50 WAC. Below is a summary of some of the changes being proposed to this chapter:


•     WAC 204-50-030 - updates to definitions section which includes but is not limited to the removal of some definitions as well as adding new definitions for ignition interlock technician, letter of certification, and vendor.

•     WAC 204-50-040 - revising language pertaining to the certification process of IIDs which includes, but is not limited to, the following requirements:


     (a) Testimony provided by entities of the interlock community will be provided at no cost to the state of Washington.

     (b) Provides the alcohol reference value and type of calibration device used.

     (c) Provide the Washington state software IID configuration profile.

     (d) IID manufacturers will provide all information to the IDS in an electronic format acceptable to the IDS.


•     New section WAC 204-50-042 - adds a new section requiring all service centers to be certified by the IDS. The proposed language in this section includes but is not limited to the following requirements:


     (a) A designated waiting area must be provided.

     (b) Fixed site service centers must comply with all municipal and/or county zoning regulations for commercial business.

     (c) A facility which accommodates all functions of IID installation and service.


•     New section WAC 204-50-046 - adds new section requiring all ignition interlock technicians to be certified by IDS, to include but not [be] limited to the following:


     (a)     Knowledge and skill examination.

     (b)     Provide a criminal history - any alcohol related traffic offenses or felony convictions within the last five years will result in disqualification.


•     WAC 204-50-080 - makes changes to the requirements for calibration of the IID to include but not [be] limited to:


     (a) Alcohol reference value at calibration shall be between .030 and .050 g/210L.

     (b) Wet bath simulators must be found on the NHTSA conforming products list.

     (c) Alcohol solution reference value must be traceable to NIST.

     (d) Dry gas standards must be adjusted due to changes in elevation.

     Also includes changes to the mail-in program for interlock devices, which include but are not limited to:

     (a) The IID must be serviced at a fixed site service center every six months and during the last four months of a client's interlock requirement.

     (b) Disqualification from program if client shows a BrAC of .040 or more has a violation reset condition.


•     WAC 204-50-090 - changes include but are not limited to adding new language which outlines that changes in the IID software and anticircumvention configuration will only be administered by the manufacturer or vendor.

•     New section WAC 204-50-100 - adds new language to provide requirements of IID installation.

•     WAC 204-50-110 - provides updates [to] the mandatory IID operational features which include but are not limited to:


     (a) Restart not permitted during a violation reset condition.

     (b) Minimum of 1500 ml or 1.5 liters of breath for an acceptable breath sample.

     (c) Ample supply of mouth pieces defined as up to two mouth pieces every sixty days.

     (d) Enter into a violation reset after a client has three attempted starts over .025 BrAC.

     (e) Random retest must be conducted ranging from ten - forty-five minutes after previous test.

     (f) An IID in violation reset must [be] serviced at a mobile or fixed site service center.

     (g) A violation reset will be uniquely identified in the IID's data base and will not be the same indication as a malfunction of the IID.


•     WAC 204-50-120 - updates to other provisions section will include but are not limited to:


     (a) Mobile service centers may provide service to rural areas with approval from IDS.

     (b) No cost to the client for billing or invoicing.

     (c) Proof of insurance must be provided to IDS annually.


•     WAC 204-50-130 - updates include but are not limited to adding removal procedures to include a requirement that authorization for IID removal must be in compliance with RCW 46.61.5055(4) and is to be determined by the vendor.

•     New section WAC 204-50-140 - new language is added to outline requirements for lessee orientation and support.

•     New section WAC 204-50-150 - process of suspension, renewal, denial and revocation of certifications defined.

•     New section WAC 204-50-160 - hearing procedures are outlined.

•     New section WAC 204-50-170 - process of appeal is defined.

     SMALL BUSINESS ECONOMIC IMPACT STATEMENT -- DETERMINATION OF NEED: Chapter 19.85 RCW, the Regulatory Fairness Act, requires that the economic impact of proposed regulations be analyzed in relation to small businesses. The statute defines small businesses as those business entities that employ fifty or fewer people and are independently owned and operated.

     The IDS has analyzed the proposed rule amendments and has determined that small businesses may be impacted by these changes, with some costs that may [be] considered "more than minor" and disproportionate to some small businesses that provide certified IIDs.

     EVALUATION OF PROBABLE COSTS AND PROBABLE BENEFITS: Since the proposed amendments "make significant amendments to a policy or regulatory program" under RCW 34.05.328 (5)(c)(iii), IDS has determined the proposed rules to be "significant" as defined by the legislature.

     As required by RCW 34.05.328 (1)(d), IDS has analyzed the probable costs and probable benefits of the proposed amendments, taking into account both the qualitative and quantitative benefits and costs.

     INDUSTRY ANALYSIS: In accordance with SHB 2466 (chapter 268, Laws of 2010), the state patrol IDS is responsible for providing standards for the certification, installation, repair, maintenance, monitoring, inspection and removal of IIDs. As part of its monitoring, IDS keeps a current data base that identifies all certified IIDs. Since internal industry information can be obtained at a more accurate level than is required by chapter 19.85 RCW, it is unnecessary to conduct an industry analysis using the four-digit standard industrial classification (SIC) codes.

     IDS has determined that there are ten providers (public, private and for-profit) that meet the criteria for small businesses under RCW 19.85.020.

     INVOLVEMENT OF SMALL BUSINESSES: All ten ignition interlock providers have been provided with the proposed language and a small business impact survey so that they have an opportunity to be involved in writing the proposed rules and in ascertaining the costs associated with proposed rule changes. Of the ten ignition interlock providers, six responded to our inquiry (a sixty percent response rate). It is also of note that the responses included providers using four of the six certified IIDs used in Washington state. The responses to the survey are summarized below to showing [show] the impact according to these businesses.

     In addition, all six of the certified ignition interlock manufacturers were provided with a small business impact survey even though they did not qualify under RCW 19.85.020 as a small business. The intent was to gain input from [the] entire ignition interlock community on the proposed rule revisions. None of the six certified manufacturers responded to the survey.

     According to the survey provided to the ten interlock providers and six manufacturers, four of the six providers who responded indicated that they would be impacted by the proposed rule changes.

     COST OF COMPLIANCE:

     Cost of Outcomes Evaluations: According to the small business impact survey responses, companies provided a breakout of the portions of the proposal that would impact their business. A breakout of these issues and associated costs are outlined below:

     MANUFACTURER COSTS: Please note that no manufacturers responded with an impact to their business as of the date of this document. However, according to some of the responses received from the providers (service centers), there was indication that they may be impacted since they purchased their devices from the manufacturer and may need to pay for any upgrades to the equipment. Therefore, IDS has given a range of costs as outlined in the responses provided in the survey. There are no anticipated costs to the providers after they are brought into compliance; therefore the costs outlined are only for one year.


Subject Costs per Year* First Year Subsequent Years
*Reprogramming devices $34,000 - $69,000 (companies indicated having between 115-230 units apiece at a cost of $300 each for repairs) Yes No

*     The burden of reprogramming devices was indicated by three of the six survey providers. These three providers own the same type of devices. There has been an estimate by all three of these providers of a $300 per device programming cost. It was stated in one survey that the $300 was a fee charged to the provider by the manufacturer for a repair. It was also indicated in one survey that this cost was undetermined at this time. The manufacturer of this device has not provided a cost evaluation for this programming change which would be required of the manufacturer to maintain certification of their device.


     Note: There was also an indication that there would be additional cost associated with the testing of the devices following the reprogramming at an ISO accredited lab. However, the cost associated with this was not included in this statement, as the requirement for testing at an ISO accredited laboratory is outlined in the Revised Code of Washington.

     ADDITIONAL EQUIPMENT COST:


Subject Costs per Year* First Year Subsequent Years
Additional mouth pieces $3,060 - $6,210 (twelve mouth pieces for each client at a cost of $3 each) (companies responding currently have 85-120 clients) Yes Yes
Replacement stock of dry gas $7,000 (twenty tanks at a cost of $350 each) Yes No
*Additional machines for calibration $1,200 each Yes     No

     Note: One company indicated that the cost associated with the additional mouth pieces would be passed on to their customers. If all companies pass the cost on to the customers, the associated impact would be $0.


*     There is an indication by one company that they would have to purchase additional machines for the calibration rule (WAC 204-50-110 (10)(b)). The proposal only requires the device already installed in a vehicle to be recalibrated and downloaded. The only time a machine needs to be replaced is when the machine is found to be defective. It is believed that rather than decreasing revenue, this change would potentially increase revenue for the companies as there would potentially be more violation reset conditions requiring the offender to have the device reset which the company could charge for.


     OTHER BUSINESS COSTS:

Subject Costs per Year* First Year Subsequent Years
Certified technician background check $10 each employee Yes Yes
Orientation and support for the lessee regarding use of the product $21,250 (training manual; client contracts, shop contracts, labels) Yes Yes
*Reprogramming systems $44,900 first year, and $35,000 for each subsequent year (sixty hours at $165/hour = 9,900 and 35,000 for full-time tech to administrate the program) Yes Yes

     *     One survey indicated that there would be additional costs associated with reprogramming systems to ensure they could communicate with the programming changes made by the manufacturer. In addition, they would have a need for a full-time technician to ensure that their system could process the data correctly and report it to the various jurisdictions.


     Note: Two surveys indicated that there will also be costs associated with employee training and certification. All technicians are currently required to be trained in all aspects relating to IIDs. The proposed language would require that anyone applying for ignition interlock certification pass a skills examination administered by the IDS. The IDS will not be charging to administer this examination.

     Disproportionate Economic Impact Analysis: When there are more than minor costs to small businesses as a result of proposed rule changes, the Regulatory Fairness Act requires an analysis to be done comparing these expenses between small businesses and ten percent of the largest businesses. The costs identified with outcomes evaluations for small businesses would be considered by IDS to be "more than minor."

     IDS looked at the possible disproportionate impact of this requirement on small businesses, as compared to ten percent of the largest businesses. However, these largest businesses are not impacted by the proposed changes according to the survey. Consequently, it is not possible to accurately delineate and compare costs between small businesses and ten percent of the largest businesses. In its desire to be fair to small businesses and to meet the intent of the law, however, IDS has outlined ways to mitigate expenses for small businesses in meeting the new requirement.

     Mitigating Expenses for Outcomes Evaluations: The initial proposed rule that companies reviewed and provided their small business impact survey based upon has been amended to mitigate some of the expenses which were originally outlined in the survey. These changes are as follows:


•     Revision to require that a fixed site service center to comply with all municipal and/or county zoning regulations for commercial businesses. Any commercial business should already be working under these zoning requirements, thus not be impacted by the requirement. Therefore the initial cost associated with relocation of a business based on the initial language that restricts the business from being located at a residence is not included in the above impact.

•     The WAC revision will not become effective until January 1, 2011, providing companies with six months from initial review to phase in new components. For example, this would allow for the replacement of existing stock of dry gas that may not use the new alcohol reference value change in the range proposed (.030 - .050).

•     WAC 204-50-110(8) will not become effective until January 1, 2012, to provide a year after adoption for the manufacturer to reprogram devices (if necessary) to enter into a violation reset condition if the operator attempts to start the vehicle three times within a fifteen minute period with BrAC higher than .025 or concentration prescribed by the originating court.

•     Verification of insurance will only need to be made once a year, prior to the expiration date listed on the current valid issuance on file with the IDS.


     Summary of Benefits: The proposed rule changes will bring credibility and integrity to the ignition interlock program. With no direct oversite of the ignition interlock program for over twenty years there was a lack of confidence in the program from judges, courts, department of licensing, probation departments, treatment centers and the citizens of Washington state. These revisions will restore confidence in the program and give a solid foundation to the best first offense ignition interlock laws in the nation. These revisions will increase the safety of the thousands of citizens that travel on the public roadways in the state of Washington every day.

     JOBS CREATED OR LOST: The proposed regulations require IIDs to be programmed with a new configuration profile, which controls how the device functions. Five of the six certified IIDs certified in Washington function on a Windows based program which is easily programmed. One device works on a DOS based program and is not easily programmed. The manufacturer is silent on whether reprogramming DOS based devices would be an issue.

     There are currently five small businesses that use the same DOS based device in the state. Three of those businesses have indicated that the device programming revisions would cause there [their] device to become decertified therefore putting them out of business. The following are the total jobs lost and revenue from those three surveys if in fact the manufacturer cannot reprogram those devices:


•     Seven employees.

•     Annual combined payroll - $120,400.

•     Annual combined revenue - $272,600.

•     Loss of equipment - $261,000.


     CONCLUSION: IDS has given careful consideration to the impact on small businesses of proposed rules in chapter 204-50 WAC, Breath alcohol ignition interlock devices. In accordance with the Regulatory Fairness Act, chapter 19.85 RCW, IDS has analyzed impacts on small businesses and outlined the reasons for the costs and ways that cost[s] are being mitigated.

     Please contact Trooper Steve Luce if you have any questions at (206) 720-3018.

     A copy of the statement may be obtained by contacting Melissa Van Gorkom, P.O. Box 42600, Olympia, WA 98504-2600, phone (360) 596-4017, fax (360) 596-4018, e-mail wsprules@wsp.wa.gov.

     A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Melissa Van Gorkom, P.O. Box 42600, Olympia, WA 98504-2600, phone (360) 596-4017, fax (360) 596-4018, e-mail wsprules@wsp.wa.gov.

September 16, 2010

John R. Bastiste

Chief

OTS-3642.1


AMENDATORY SECTION(Amending WSR 99-01-156, filed 12/23/98, effective 1/1/99)

WAC 204-50-010   Authority.   This chapter is promulgated pursuant to RCW 43.43.395, 46.37.005 and 46.04.215.

[Statutory Authority: RCW 46.04.215 and 46.37.005. 99-01-156, § 204-50-010, filed 12/23/98, effective 1/1/99. Statutory Authority: 1987 c 247. 88-01-020 (Order 87-05-ESR), § 204-50-010, filed 12/9/87.]


AMENDATORY SECTION(Amending WSR 99-01-156, filed 12/23/98, effective 1/1/99)

WAC 204-50-020   Purpose.   The purpose of this chapter is to establish guidelines for the certification, installation, repair, maintenance, monitoring, inspection, and removal of ignition interlock ((breath alcohol)) devices, as required by RCW 46.04.215 and 43.43.395.

[Statutory Authority: RCW 46.04.215 and 46.37.005. 99-01-156, § 204-50-020, filed 12/23/98, effective 1/1/99. Statutory Authority: 1987 c 247. 88-01-020 (Order 87-05-ESR), § 204-50-020, filed 12/9/87.]


AMENDATORY SECTION(Amending WSR 09-18-073, filed 8/31/09, effective 10/1/09)

WAC 204-50-030   Definitions.   The following definitions will apply throughout this chapter:

     Alcohol - Means the unique chemical compound ethyl alcohol. For the purpose of ignition interlock devices, all devices will be specific for ethyl alcohol.

     ((Authorized service provider (ASP) - The person or company meeting all qualifications outlined throughout this chapter and approved and trained by the manufacturer to service, install, monitor, calibrate, and provide information on manufacturer's devices currently certified for use in Washington state.))

     Bogus sample - Any air sample that is altered, diluted, stored, or filtered human breath, or which is obtained from an air compressor, hot air dryer, balloon, manual air pump, or other mechanical device, and is provided by an individual attempting to start or continue to operate a vehicle equipped with ((a)) an ignition interlock device.

     Breath ((or blood)) alcohol concentration (((BAC))) BrAC - Is the amount of alcohol in a person's ((blood or)) breath determined by chemical analysis, which shall be measured by grams of alcohol per((:

     (a) 100 milliliters of blood; or

     (b))) 210 liters of breath.

     Certification - The testing and approval process required by RCW 46.04.215, 43.43.395 and chapter 204-50 WAC.

     Chief - The chief of the Washington state patrol or his or her designee.

     Circumvention - Means the attempted or successful bypass of the proper functioning of an ignition interlock device including, but not limited to, the operation of a vehicle without a properly functioning ignition interlock device, the push start of a vehicle with the ignition interlock device, disconnection or alteration of the ignition interlock device, the introduction of a bogus sample other than a deep-lung sample from the driver of the vehicle, introduction of an intentionally contaminated or altered breath sample, continued operation of the interlock vehicle after the ignition interlock device detects excess breath alcohol.

     Court (or originating court) - The particular Washington state court, if any, that has required the use of an ignition interlock device by a particular individual or has responsibility for the preconviction or postconviction supervision of an individual required to use or using the ignition interlock device.

     ((Device - An ignition interlock breath alcohol device (IID).))

     DOL - The department of licensing of the state of Washington.

     Fail level - The ((BAC)) BrAC of .025 g/210L or a level set by the originating court, if lower, at which the ignition interlock device will prevent the operator from starting the vehicle, and/or once the vehicle is started, the level at which the operator must record a test below, or must shut off the vehicle, to avoid registering a violation reset.

     Ignition interlock device (((IID))) - An electronic device that is installed in a vehicle which requires submitting to a ((BAC)) BrAC test prior to the starting of the vehicle and at periodic intervals after the engine has been started. If the unit detects a ((BAC)) BrAC test result below the alcohol setpoint, the unit will allow the vehicle's ignition switch to start the engine. If the unit detects a ((BAC)) BrAC test result above the alcohol setpoint, the vehicle will be prohibited from starting.

     Ignition interlock technician - A person employed by the ignition interlock device manufacturer or vendor and certified by the impaired driving section to install, service, calibrate, remove and monitor certified ignition interlock devices in Washington state.

     Impaired driving section (((IDS))) - The ((impaired driving)) section of the Washington state patrol that has been designated by the chief of the Washington state patrol to coordinate and regulate ignition interlock devices.

     Lessee - A person who has entered into an agreement with a manufacturer, vendor, or ((authorized)) service ((provider)) center to lease ((a)) an ignition interlock device.

     Letter of certification - Means a letter issued by the Washington state patrol that authorizes a manufacturer's ignition interlock device to be used as an ignition interlock device under this chapter; or an ignition interlock technician to install, service, calibrate, remove and monitor certified ignition interlock devices in Washington state; or a service center location to service, install, monitor, and calibrate ignition interlock devices currently certified for use in Washington state.

     Lockout - A period of time where the ignition interlock device will not allow a breath sample to be delivered or a vehicle's engine to be started.

     Manufacturer - The person, company, or corporation who produces the ignition interlock device, and certifies to ((IDS)) the impaired driving section that a service ((provider)) center, vendor, or ignition interlock technician is qualified to service, install, monitor, calibrate, remove, and provide information on the manufacturer's ignition interlock device((s)).

     OAC - Office of the administrator of the court.

     Patrol - The Washington state patrol as defined in RCW 43.43.010.

     Restricted operator - A person whose driving privileges are restricted by court order or the department of licensing to operating only motor vehicles equipped with an approved, functioning ((IID)) ignition interlock device.

     ((Simulator - A device which when filled with a certified simulator solution, maintained at a known temperature, provides a vapor sample of a known alcohol concentration.)) Service center - A location certified by the impaired driving section to service, install, monitor, remove and calibrate certified ignition interlock devices in Washington state.

     Tampering - Any act or attempt to disable or circumvent the legal operation of an ((IID)) ignition interlock device.

     Vendor - An impaired driving section approved company, business, or distributor who is contracted to manage service centers and/or technicians.

     Violation reset - ((The condition caused by the failure of the operator of a vehicle to perform a test or retest as required, or by the operator's inability to achieve such test or retest results at the lower of the maximum allowable alcohol concentration as set by the originating court or .025 BAC, the device and the vehicle in which it is installed must be returned to the manufacturer or authorized service provider to be reset)) An unscheduled service of the ignition interlock device and required download of the ignition interlock device's data storage system by a service center because the restricted operator has recorded a fail level or a restricted operator failed to have the ignition interlock device serviced within the time period described in this chapter.

     Wet bath simulator - A device which when filled with a certified simulator solution, maintained at a known temperature, provides a vapor sample of a known alcohol concentration.

[Statutory Authority: RCW 46.37.005 and 46.04.215. 09-18-073, § 204-50-030, filed 8/31/09, effective 10/1/09. Statutory Authority: RCW 46.61.688(2). 05-17-065, § 204-50-030, filed 8/11/05, effective 9/11/05. Statutory Authority: RCW 46.04.215 and 46.37.005. 99-01-156, § 204-50-030, filed 12/23/98, effective 1/1/99. Statutory Authority: 1987 c 247. 88-01-020 (Order 87-05-ESR), § 204-50-030, filed 12/9/87.]


AMENDATORY SECTION(Amending WSR 09-18-073, filed 8/31/09, effective 10/1/09)

WAC 204-50-040   ((Testing certification, revocation or surrender of certification and recertification.)) Ignition interlock device certification.   (1) ((Testing and certification.

     (a) To be certified, a device must:

     (i) Meet all standards set under chapter 204-50 WAC;

     (ii) Meet or exceed the minimum test standards in sections one and two of the model specifications for breath alcohol ignition interlock devices (BAIID) as published in the Federal Register, Volume 57, Number 67, Tuesday, April 7, 1992, on pages 11774 - 11787, or as rules are adopted. Only a notarized statement, from a laboratory capable of performing the tests specified, will be accepted as proof of meeting or exceeding the standards. The notarized statement must include the name and signature of the person in charge of the tests under the following sentence:


Two samples of (model name) , manufactured by (manufacturer) were tested by (laboratory) . They do meet or exceed all specifications listed in the Federal Register, Volume 57, Number 67, pages 11774 - 11787.


                              Signed                   


     (iii) Submit two devices to the IDS for testing and review.

     (b) Upon receipt of a statement from a testing laboratory that two samples of a device have successfully passed the test procedures listed in this chapter, and confirmation that all other requirements of this chapter have been met, the chief or designee may issue a letter of certification for the device.

     (2) Revocation or surrender of certification.

     (a) The letter of certification will be subject to review by the IDS on an annual basis. It will be valid for three years or until voluntarily surrendered by the manufacturer or until revoked by the chief or designee for cause. Reasons for revocation include but are not limited to:

     (i) Evidence of repeated device failures due to gross defects in design, materials, and/or workmanship during manufacture, installation, monitoring, or calibration of the device such that the standards for accuracy and reliability of the devices for which the devices were tested are not being met (as determined by IDS);

     (ii) Evidence that the features and functionality of a manufacturer's devices are not being programmed properly by ASP(s) or are being circumvented by lessees such that the standards for anticircumvention for which the devices were tested are not being met;

     (iii) Any violation on the part of the manufacturer(s) or ASP(s) of any of the laws or regulations related to the installation, servicing, monitoring, and calibration of devices, including, but not limited to, "other provisions" listed in WAC 204-50-120;

     (iv) Notice of cancellation of manufacturer's and/or ASP's required liability insurance is received;

     (v) Notification that the manufacturer is no longer in business. This notification must be made immediately to the IDS;

     (vi) Notification that material modification or alteration in the components and/or the design of the certified device is not provided or the recertification process is not completed as outlined in WAC 204-50-050.

     (b) Unless necessary for the immediate good and welfare of the public, revocation will be effective thirty days from the date of the letter sent to the manufacturer via certified mail, return receipt requested. A copy of each notice of revocation will be provided to the director of the DOL and to the OAC for the state of Washington. The manufacturer's device(s) will be removed from the list of certified devices on the WSP web site.

     (c) Upon voluntary surrender, or revocation of a letter of certification for a manufacturer's device, all like devices must be removed and replaced by a certified device, within sixty-five days of the effective date of such surrender or revocation. The ASP must notify all affected lessees of decertification and the requirements for a new device to be installed by an existing ASP.

     (d) The IDS will maintain a file of all current, revoked, and voluntarily surrendered letters of certification for the period of time as outlined in the WSP records retention schedule.

     (3) Review for recertification.

     A manufacturer whose letter of certification has been revoked may request a review of revocation by submitting the request in writing to the chief or designee within thirty days from the date on the revocation letter. The request must be made in writing and mailed to WSP Impaired Driving Section, 811 East Roanoke St., Seattle, WA 98102.)) An application must be approved and letter of certification issued by the chief or designee before a manufacturer's ignition interlock device is authorized for installation pursuant to this chapter.

     (2) Application for letter of certification for an ignition interlock device.

     (a) A manufacturer must submit an application to the impaired driving section for a letter of certification for its ignition interlock device.

     (b) In order to have an ignition interlock device certified, the applicant(s) must:

     (i) Complete the application form provided by the impaired driving section.

     (ii) Provide written verification that the ignition interlock device complies with all applicable standards set under RCW 43.43.395 and chapter 204-50 WAC, including written documentation from an International Organization of Standardization (ISO) certified testing laboratory that two samples of the manufacturer's ignition interlock device meets or exceeds the minimum test standards in sections one and two of the model specifications for breath alcohol ignition interlock devices (BAIID) as published in the Federal Register, Volume 57, Number 67, Tuesday, April 7, 1992, on pages 11774 - 11787, or as rules are adopted. Only a notarized statement as outlined in RCW 43.43.395 (3)(b)(i), from a laboratory that is certified by the International Organization of Standardization and is capable of performing the tests specified will be accepted as proof of meeting or exceeding the standards.

     (iii) Provide two ignition interlock devices for testing and review.

     (iv) Attach to the application a declaration on the form provided by the impaired driving section that:

     (A) The manufacturer, and its employees will cooperate with the impaired driving section at all times, including its inspection of the manufacturer's installation, service, repair, calibration, use, removal, or performance of ignition interlock device.

     (B) The manufacturer agrees to provide all downloaded ignition interlock device data, reports and information related to the ignition interlock device to the impaired driving section in an impaired driving section approved electronic format.

     (C) The manufacturer, vendor, and/or ignition interlock technician agrees to provide 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 Washington or any other political subdivision.

     (v) Provide the alcohol reference value and type of calibration device used to check the ignition interlock device.

     (vi) Provide the Washington state software ignition interlock device configuration profile.

     (vii) Provide the impaired driving section, a map of the state of Washington showing the area covered by each certified fixed site and/or mobile service center, areas and the name, address, certification number and telephone number of each service center.

     (3) Issuance of a letter of certification for an ignition interlock device or renewal of letter of certification for an ignition interlock device.

     (a) The chief or designee shall have the authority to issue a letter of certification for a device if all the requirements have been met by the applicant.

     (b) Upon receipt of an application for letter of certification, the chief or designee shall:

     (i) Approve an application under this section if all requirements of this section have been met; or

     (ii) Deny the application if all requirements of this chapter have not been met by the applicant. If an applicant is denied, the applicant must wait ninety days before the applicant may resubmit its application for letter of certification for an ignition interlock device.

     (c) The chief or designee will notify the applicant in writing if an application for a letter of certification has been denied. The notice of denial will be sent to the applicant via certified mail, return receipt requested.

     (d) A letter of certification for an ignition interlock device will be effective the date stated on the letter.

     (e) A letter of certification for an ignition interlock device will be valid for three years or until it is surrendered, suspended, or revoked.

     (f) A letter of certification for an ignition interlock device will be subject to review by the impaired driving section at its discretion during the course of the certification period.

     (4) Renewal of a letter of certification for an ignition interlock device.

     (a) A manufacturer must submit an application to the impaired driving section requesting a renewal of a letter of certification for an ignition interlock device. The renewal request may be submitted ninety days prior to the expiration of a letter of certification, but a renewal request must be submitted within thirty days prior to the expiration of a letter of certification.

     (b) For a manufacturer to have its letter of certification for an ignition interlock device renewed, it must submit:

     (i) A written request for renewal of a letter of certification for an ignition interlock device.

     (ii) Written verification that the ignition interlock device complies with all applicable standards set in RCW 43.43.395 and chapter 204-50 WAC, including a current report from an ISO certified testing laboratory that two samples of the manufacturer's ignition interlock device meets or exceeds the minimum test standards in sections one and two of the model specifications for breath alcohol ignition interlock devices (BAIID) as published in the Federal Register, Volume 57, Number 67, Tuesday, April 7, 1992, on pages 11774 - 11787, or as rules are adopted. Only a notarized statement as outlined in RCW 43.43.395 (3)(b)(i), from a laboratory that is certified by the International Organization of Standardization and is capable of performing the tests specified will be accepted as proof of meeting or exceeding the standards.

     (c) The chief or designee will notify the manufacturer in writing if renewal of a letter of certification has been denied. The notice of nonrenewal will be sent to the certified holder via certified mail, return receipt requested.

     (5) Revocation of a letter of certification for an ignition interlock device.

     (a) The chief or designee may revoke a letter of certification for an ignition interlock device for a manufacturer's, vendor's, service center's or ignition interlock technician's violation of any of the laws or regulations related to the installation, servicing, monitoring, removal and calibration of ignition interlock devices, including but not limited to, "additional requirements" listed in WAC 204-50-120.

     (b) A copy of a notice of revocation for a certification for an ignition interlock device will be provided to the DOL and to the OAC for the state of Washington.

     (c) Upon revocation of a letter of certification for an ignition interlock device, the manufacturer's ignition interlock device(s) will be removed from the list of certified ignition interlock devices on the patrol's web site.

     (d) If a manufacturer holding a letter of certification for an ignition interlock device is no longer in business, it shall immediately send written notification to the impaired driving section informing it that the manufacturer is no longer in business, and the impaired driving section will revoke its letter of certification.

     (e) If a manufacturer holding a letter of certification wishes to voluntarily relinquish its letter of certification, the manufacturer shall send written notice to the impaired driving section advising it that the manufacturer is relinquishing its letter of certification for an ignition interlock device.

     (f) Upon voluntary surrender or revocation of a letter of certification for a manufacturer's ignition interlock device, the impaired driving section shall notify all vendors and/or service centers that all of a manufacturer's uncertified ignition interlock devices must be removed and replaced by a certified ignition interlock device within sixty-five days of the effective date of such surrender or revocation. The service center shall notify all affected lessees of the revocation of the manufacturer's certification and requirement that a certified service center install and/or replace the ignition interlock device.

     (g) The impaired driving section will maintain a file of all current, revoked, and voluntarily surrendered letters of certification for the time period required by the patrol records retention schedule.

     (h) The chief or designee will notify the manufacturer in writing if a letter of certification has been revoked. The notice of revocation will be sent to the certificate holder via certified mail, return receipt requested.

     (6) All ignition interlock devices must employ fuel cell technology on or before June 10, 2015. An ignition interlock device that does not employ fuel cell technology after June 10, 2015, will not be an approved device in Washington state and will have its letter of certification denied or revoked.

[Statutory Authority: RCW 46.37.005 and 46.04.215. 09-18-073, § 204-50-040, filed 8/31/09, effective 10/1/09. Statutory Authority: RCW 46.61.688(2). 05-17-065, § 204-50-040, filed 8/11/05, effective 9/11/05. Statutory Authority: RCW 46.04.215 and 46.37.005. 99-01-156, § 204-50-040, filed 12/23/98, effective 1/1/99. Statutory Authority: RCW 46.20.730. 88-15-050 (Order 88-04-ESR), § 204-50-040, filed 7/18/88. Statutory Authority: 1987 c 247. 88-01-020 (Order 87-05-ESR), § 204-50-040, filed 12/9/87.]


NEW SECTION
WAC 204-50-042   Service center certification and inspection.   (1) An application must be approved and letter of certification issued by the chief or designee before a fixed or mobile service center may repair, install, remove, or service a certified ignition interlock device pursuant to this chapter.

     (2) Application for certification for a fixed site service center.

     (a) A manufacturer or vendor must submit an application to the impaired driving section for a letter of certification for a fixed service center.

     (b) In order to have a fixed service center certified, the applicant(s) must:

     (i) Complete the application form provided by the impaired driving section. In the application form the applicant shall disclose:

     (A) The physical address of the service center;

     (B) The days and hours of operation for the service center;

     (C) The type of the certified ignition interlock device it will service;

     (D) The type of calibration device it will use for the ignition interlock device(s) it will service.

     (ii) Submit a copy of the ignition interlock device data reader download procedures.

     (iii) Submit a written statement from a manufacturer that authorizes the service center to install the manufacturer's certified ignition interlock device.

     (iv) Submit a list of all fees that may be charged to the lessee to install the manufacturer's certified ignition interlock device.

     (3) Application for certification for a mobile site service center.

     (a) A manufacturer or vendor must submit an application to the impaired driving section for a letter of certification for a mobile service center.

     (b) In order to have a mobile service center certified, the applicant(s) must:

     (i) Submit the information required in subsection (1)(b)(i) through (iii) of this section.

     (ii) Submit a copy of liability insurance for the vehicle to be used as the mobile service center.

     (iii) Submit certification number(s) of the fixed site service center(s) overseeing the mobile service center and the technician(s) that will work from the mobile service center(s).

     (iv) Submit a list of all fees or rates that may be charged to a lessee to install, remove, repair, or service an ignition interlock device by a mobile service center.

     (4) Inspection of fixed and/or mobile service center. A vendor or manufacturer must agree to allow access for a representative from the impaired driving section to conduct an inspection at any time during scheduled business hours to ensure compliance as required in chapter 204-50 WAC.

     (5) Service center requirements. To receive and maintain a letter of certification, a fixed site service center must:

     (a) Be located in a facility which properly accommodates installing, inspecting, downloading, calibrating, repairing, monitoring, maintaining, servicing, and/or removing of ignition interlock devices.

     (b) Have posted a current copy of all fees and rates a lessee may be charged to install, remove, repair or service an ignition interlock device by a fixed or mobile service center. The fees and rates must be plainly visible and capable of being read at all times by the public.

     (c) Provide 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 provided without charge.

     (d) Provide 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.

     (e) Comply with all municipal and/or county zoning regulations for commercial businesses.

     (f) Have and maintain a designated waiting area that is separate from the installation area for the lessee. The designated waiting area must be shielded from the installation area so a lessee or any other unauthorized person cannot witness the installation or service of the ignition interlock device.

     (6) Issuance of letter of certification for a fixed and/or mobile service center.

     (a) The chief or designee will have the authority to issue a letter of certification to a fixed and/or mobile service center if all qualifications outlined in this chapter have been met by the applicant.

     (b) A letter of certification or a service center must be posted and visible to the public.

     (c) The chief or designee will notify an applicant in writing if a letter of certification has been denied. The notice of denial will be sent to the applicant via certified mail, return receipt requested.

[]


NEW SECTION
WAC 204-50-046   Ignition interlock technician certification.   (1) The chief or designee will have the authority to issue a letter of certification for an ignition interlock technician. An application must be approved and letter of certification issued by the impaired driving section before an ignition interlock technician may repair, install, remove, or service a certified ignition interlock device pursuant to this chapter.

     (2) Application for letter of certification for an ignition interlock technician.

     (a) A manufacturer, vendor, or service center must submit an application to the impaired driving section for a letter of certification for each ignition interlock technician employed at a fixed or mobile service center.

     (b) In order to receive a letter of certification for an ignition interlock technician, the applicant(s) shall:

     (i) Complete the application form provided by the impaired driving section.

     (ii) Have its employee complete the knowledge and skills examination administered by the impaired driving section. An applicant's employee must score eighty percent or higher on the knowledge and skills examination to be eligible for a letter of certification.

     (iii) Submit, at the expense of the manufacturer, service center, vendor or applicant, a criminal history report conducted within the preceding thirty days of the date on the application. The criminal history report shall be attained from either the patrol's identification and criminal history section if the employee has lived in Washington for five years immediately preceding the date of the application or, a criminal background check from the agency responsible for keeping criminal history in the state or states of the previous residence of an employee who has not lived in Washington for the five years immediately preceding the date of application.

     (c) The chief or designee will refuse to issue or may revoke a letter of certification for the ignition interlock technician if the ignition interlock technician:

     (i) Has been convicted of:

     (A) Any alcohol related traffic offense;

     (B) Any offense classified as a felony within the five years prior to the date of the applicant filing an application for certification as an ignition interlock technician.

     (ii) Has been granted a deferred prosecution under chapter 10.05 RCW.

     (iii) Is not at least eighteen years of age.

     (iv) Possesses a valid Washington driver's license if:

     (A) The service center is providing a mobile service center; or

     (B) The ignition interlock technician must operate a lessee's vehicle to provide services in accordance with this chapter.

     (d) The term "conviction" as used in this section will have the same meaning as used in RCW 9.94A.030.

     (3) Issuance of letter of certification for an ignition interlock technician.

     (a) The impaired driving section shall have the authority to issue a letter of certification for an ignition interlock technician if an application has been approved and all qualifications set out in this chapter have been met by the applicant.

     (b) A letter of certification for an ignition interlock technician will be effective the date stated in the letter and contain a certification number specific to the ignition interlock technician.

     (c) A letter of certification for an ignition interlock technician will be valid for one year or until suspended, superseded, or revoked by the impaired driving section.

     (d) A letter of certification for an ignition interlock technician will be subject to review by the impaired driving section at its discretion during the course of the certification period.

     (e) The impaired driving section will deny an application for a letter of certification for an ignition interlock technician if all qualifications are not met by the applicant, and it will notify the applicant and service provider or vendor or both within ten days of such determination.

     (f) The chief or designee will notify the applicant in writing if an application for letter of certification has been denied. The notice of denial will be sent to the applicant via certified mail, return receipt requested.

     (4) Renewal of a letter of certification for an ignition interlock technician.

     (a) A letter of certification for an ignition interlock technician certification must be renewed on an annual basis.

     (b) An application to renew a letter of certification for an ignition interlock technician must be submitted at least thirty days prior to the expiration of the certification.

     (c) An incomplete or untimely application may result in the expiration of a letter of certification for an ignition interlock technician. If a letter of certification for an ignition interlock technician expires, the ignition interlock technician identified in the expired letter of certification must immediately stop working as an ignition interlock technician until a new letter of certification is issued.

     (d) Renewal of a letter of certification for an ignition interlock technician will be the same as the process outlined in this section, except the submission of a criminal history report may be submitted by the ignition interlock technician.

     (e) If there is pending action against an ignition interlock technician for any violation of the rules outlined in this chapter, an application for the renewal of a letter of certification will not be processed until the pending action has reached a final resolution.

     (f) The chief or designee will notify the service center in writing if renewal of a letter of certification has been denied. The notice of nonrenewal will be sent to the certificate holder via certified mail, return receipt requested.

     (5) Surrender of a letter of certification for an ignition interlock technician.

     (a) An ignition interlock technician letter of certification may be surrendered upon written request from the vendor, service center, or an ignition interlock technician or if the impaired driving section receives written notification that the ignition interlock technician is no longer employed by a certified service center representing the same manufacturer under which the current ignition interlock technician certification was issued.

     (b) The original letter of certification must be returned to the impaired driving section. If the original certification is not provided with the written notification the impaired driving section will instruct an inspector to obtain the original certification.

     (6) Suspension or revocation of a letter of certification for an ignition interlock technician.

     (a) The chief or designee may suspend or revoke certification of an ignition interlock technician who no longer meets all of the requirements outlined under the Revised Code of Washington or this chapter.

     (b) The chief or designee will notify the ignition interlock technician in writing if a letter of certification has been suspended or revoked. The notice of suspension or revocation will be sent to the certificate holder via certified mail, return receipt requested.

     (c) During a period of suspension of a letter of certification for an ignition interlock technician, the suspended ignition interlock technician must cease any and all activities related to the repair, installation, removal, or service of a certified ignition interlock device in the state of Washington.

     (d) If a letter of certification for an ignition interlock technician is suspended or revoked the ignition interlock technician must, on demand, surrender the certification and return it to the impaired driving section.

[]


AMENDATORY SECTION(Amending WSR 09-18-073, filed 8/31/09, effective 10/1/09)

WAC 204-50-050   Modifications to a certified ignition interlock device.   ((The)) (1) A manufacturer, vendor or service center must immediately notify ((IDS)) the impaired driving section, in writing, of any material modification. A material modification is any additional features, software configuration changes or alteration in the components and/or the design of the certified ignition interlock device. ((Within ninety)) Written notification of a material modification may be submitted in an impaired driving section approved electronic format.

     (2) A manufacturer must resubmit evidence of compliance as required in WAC 204-50-040 to the impaired driving section within thirty days of notifying the ((IDS)) impaired driving section of ((the)) a material modification ((or alteration to a certified device, the manufacturer must resubmit to IDS the evidence of compliance as required in WAC 204-50-040)).

[Statutory Authority: RCW 46.37.005 and 46.04.215. 09-18-073, § 204-50-050, filed 8/31/09, effective 10/1/09. Statutory Authority: RCW 46.61.688(2). 05-17-065, § 204-50-050, filed 8/11/05, effective 9/11/05. Statutory Authority: RCW 46.04.215 and 46.37.005. 99-01-156, § 204-50-050, filed 12/23/98, effective 1/1/99. Statutory Authority: RCW 46.20.730. 88-15-050 (Order 88-04-ESR), § 204-50-050, filed 7/18/88. Statutory Authority: 1987 c 247. 88-01-020 (Order 87-05-ESR), § 204-50-050, filed 12/9/87.]


AMENDATORY SECTION(Amending WSR 09-18-073, filed 8/31/09, effective 10/1/09)

WAC 204-50-070   Variable calibration of an ignition interlock device.   To be certified, ((a)) an ignition interlock device must be capable of being preset, by the manufacturer, vendor, service center or by an ((ASP)) ignition interlock technician, at any fail level from .02 through ((.09% BAC)) .09 g/210L BrAC (plus or minus ((.005% BAC)) .005 g/210L BrAC). The actual setting of each ignition interlock device, unless otherwise mandated by the originating court, must be ((.025 BAC)) .025 g/210L BrAC. The capability to change this setting must be made secure, by the manufacturer, vendor, service center or by an ((ASP)) ignition interlock technician.

[Statutory Authority: RCW 46.37.005 and 46.04.215. 09-18-073, § 204-50-070, filed 8/31/09, effective 10/1/09. Statutory Authority: RCW 46.61.688(2). 05-17-065, § 204-50-070, filed 8/11/05, effective 9/11/05. Statutory Authority: RCW 46.04.215 and 46.37.005. 99-01-156, § 204-50-070, filed 12/23/98, effective 1/1/99. Statutory Authority: 1987 c 247. 88-01-020 (Order 87-05-ESR), § 204-50-070, filed 12/9/87.]


AMENDATORY SECTION(Amending WSR 09-18-073, filed 8/31/09, effective 10/1/09)

WAC 204-50-080   Certified ignition interlock device maintenance, calibration and reports.   (1) Each ((lessee must)) restricted operator shall have the ignition interlock device installed in the restricted operator's vehicle(s) examined by the manufacturer, vendor, service center or ((by an ASP)) ignition interlock technician for correct calibration and evidence of tampering at intervals not to exceed sixty-five days, or more often as may be ordered by the originating court.

     (2) ((The)) An ignition interlock device must be calibrated for accuracy ((according to the manufacturer's and the IDS's procedures,)) by using a wet bath simulator or dry gas alcohol standard with an alcohol reference value between .030 and .050 g/210L. The result must be within plus or minus 0.01 g/210L of the reference value introduced into the ignition interlock device.

     (a) Wet bath simulators must:

     (i) Use a mercury in glass or digital thermometer ((with a scale graduated in tenths of a degree measuring a range between 33.5 and 34.5 degrees centigrade)). These thermometers must read 34 plus or minus .2 degrees Centigrade during analysis and be certified annually using a National Institute of Standards and Technology (NIST) ((certified)) traceable digital reference thermometer.

     (ii) Be found on the current National Highway Traffic Safety Administration confirming products list of calibrating units for breath alcohol testers.

     (iii) Use alcohol reference solutions prepared and tested in a laboratory such that their reference value is shown to be traceable to the National Institute of Standards and Technology. The 500 ml bottles containing simulator solution must be tamper proof and labeled with the following: Lot or batch number, value of the reference sample in g/210L, and date of preparation and/or the expiration which must not be longer than one year from the date of preparation.

     (b) Dry gas alcohol standards must be certified to a known reference value and traceable to National Institute of Standards and Technology - NIST Traceable Reference Material (NIST-NTRM) ethanol standards. ((This known)) The reference value will ((also)) be adjusted for pressure changes due to elevation to which the dry gas is being used.

     (((3) All data)) (i) Dry gas alcohol standard tanks must:

     (A) Be stored in an environment where the temperature range remains between 50-104 degrees Fahrenheit.

     (B) Have a label which will contain the following: Components and concentration of the reference value of the gas, expiration date which must not be longer than three years from the date of preparation, and the lot or batch number.

     (ii) Each service center using a dry gas alcohol standard will have:

     (A) An elevation chart which will be used to determine the proper reference value for the elevation for which the gas standard is being used.

     (B) The certificate of analysis from the dry gas standard manufacturer.

     (3) The results of each calibration including the reference value, calibration check, and any adjustments made for elevation pressure must be recorded on the ignition interlock device data reader and/or data base.

     (4) Data contained in ((the)) an ignition interlock device's memory or data reader must be downloaded and the manufacturer, vendor and/or ((the ASP)) service center must make ((a hard copy or)) an electronic ((equivalent)) copy of the client data and the results of each examination.

     (5) Data downloaded by a manufacturer, vendor and/or service center from an ignition interlock device must be:

     (a) Reviewed by the manufacturer, vendor, ignition interlock technician, and/or service center. 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 originating court, ((IDS)) impaired driving section and/or DOL.

     (b) All information obtained as a result of each calibration or inspection must be retained by the manufacturer, vendor or ((approved)) service ((provider)) center for ((two)) three years from the date the ignition interlock device is removed from the vehicle.

     (((4))) (6) Any ((ASP)) service center proposing to offer a mail-in calibration and examination program to their lessees must obtain written approval from ((IDS)) the impaired driving section prior to implementing the mail-in program.

     (a) To obtain approval ((the ASP)) for a mail-in calibration and examination program, a service center must submit a copy of written procedures outlining how the mail-in program will ((work)) comply with the requirements of this chapter.

     (b) Written procedures for a mail-in calibration and examination program must include:

     (i) A requirement that all restricted operators enrolled in the mail-in program have the ignition interlock device calibrated, downloaded, the ignition interlock device's wiring harness physically inspected in the vehicle in which it was installed at a fixed site service center of the manufacturer every one hundred ninety-five days for the period of installation.

     (ii) A restriction prohibiting restricted operators from using the program during the last four months of a restricted operator's DOL or court mandated ignition interlock device period.

     (iii) A disqualification for a restricted operator from the mail-in program if their data reader or data base shows a breath alcohol sample equal to or greater than .040 g/210L, or if a restricted operator and/or lessee has a violation reset condition.

     ((ASP)) (c) The manufacturer, vendor, ignition interlock technician or service center must ((also)) provide ((the customer)) a restricted operator with written instructions on how to utilize the mail-in program.

     (d) A mail-in program does not eliminate or take the place of any requirements outlined in WAC 204-50-120.

     (((5))) (7) The manufacturer, vendor and/or ((ASP)) service center must provide, upon request, additional reports in a format acceptable to and at no cost to DOL, ((IDS)) impaired driving section and/or the originating court.

     (((6) The ASP)) (8) A service center must maintain records documenting all calibrations, downloads and any other services performed on an ignition interlock device, ((to include)) including service of a violation reset ((service)). Charges for installations, calibrations, downloads and service must be made using a numbered billing invoice. The billing invoice must contain the date of service and all fees for service must be itemized.

     (((7))) (9) Retention of the record of installation, calibrations, downloads, service and associated invoices must be maintained on site for a minimum of ((two)) three years.

[Statutory Authority: RCW 46.37.005 and 46.04.215. 09-18-073, § 204-50-080, filed 8/31/09, effective 10/1/09. Statutory Authority: RCW 46.61.688(2). 05-17-065, § 204-50-080, filed 8/11/05, effective 9/11/05. Statutory Authority: RCW 46.04.215 and 46.37.005. 99-01-156, § 204-50-080, filed 12/23/98, effective 1/1/99. Statutory Authority: 1987 c 247. 88-01-020 (Order 87-05-ESR), § 204-50-080, filed 12/9/87.]


AMENDATORY SECTION(Amending WSR 09-18-073, filed 8/31/09, effective 10/1/09)

WAC 204-50-090   Ignition interlock device security.   ((The)) (1) A manufacturer and its ((approved)) vendors, service ((provider(s))) center(s), and ignition interlock technicians must take all reasonable steps necessary to prevent tampering or physical circumvention of ((the)) an ignition interlock device. These steps must include:

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

     (b) Installation and/or use of all anticircumvention features required under this chapter;

     (c) Changes in software and ignition interlock device configuration, including anticircumvention features and the Washington state configuration profile will only be administered by the manufacturer, and/or vendor.

     (2) In addition, ((the approved)) a service ((provider)) center or ignition interlock technician will affix to the ignition interlock device a label containing the following notation: "Warning - This ignition interlock device has been installed under the laws of the state of Washington. Attempts to disconnect, tamper with, or circumvent this ignition interlock device may subject you to criminal prosecution. For more information, call (insert ((manufacturer's)) manufacturer, vendor or ((approved)) service ((provider's)) center's toll free number)."

     (3) No owner or employee of a manufacturer ((of ASP)), vendor or service center may authorize or assist with the disconnection of ((a)) an ignition interlock device, 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 ignition interlock device, to start or operate a vehicle without providing all required breath samples. Doing so may subject the person to criminal prosecution under RCW 46.20.750 and may cause the revocation of a manufacturer's certification under WAC 204-50-040.

     (4) All known ignition interlock device circumventions or tampering must be reported to the ((IDS upon request)) impaired driving section in an impaired driving section approved electronic format within seven days of determining that an ignition interlock device was circumvented or tampered with.

[Statutory Authority: RCW 46.37.005 and 46.04.215. 09-18-073, § 204-50-090, filed 8/31/09, effective 10/1/09. Statutory Authority: RCW 46.61.688(2). 05-17-065, § 204-50-090, filed 8/11/05, effective 9/11/05. Statutory Authority: RCW 46.04.215 and 46.37.005. 99-01-156, § 204-50-090, filed 12/23/98, effective 1/1/99. Statutory Authority: 1987 c 247. 88-01-020 (Order 87-05-ESR), § 204-50-090, filed 12/9/87.]


NEW SECTION
WAC 204-50-100   Installation of ignition interlock devices.   (1) An ignition interlock device can only be installed by a certified ignition interlock technician.

     (2) An ignition interlock technician shall not install an ignition interlock device on a vehicle unless the restricted operator is:

     (a) Present at the service center;

     (b) The registered owner of the vehicle or has a signed letter of authorization from the registered owner approving the ignition interlock device installation; and

     (c) Provided ignition interlock device training by the manufacturer, vendor, service center, and/or certified technician. If the impaired driving section and/or DOL provides educational materials to the manufacturer, vendor, service center and/or technician, those training materials will be provided to the restricted operator and/or lessee in addition to the training required under this section.

     (3) An ignition interlock technician shall:

     (a) Record the following information before installing an ignition interlock device:

     (i) The full name, current address, phone number, driver's license number of the lessee and/or restricted operator.

     (ii) The vehicle license registration number for the vehicle in which the ignition interlock device is to be installed.

     (iii) The unique serial number of the ignition interlock device installed and corresponding vehicle license registration number of the single vehicle in which it was installed.

     (b) Ensure that no restricted operator, lessee or other unauthorized person witnesses the installation, service or removal of an ignition interlock device.

     (c) Inspect all vehicles prior to installation of an ignition interlock device to determine if parts of a vehicle affected by an ignition interlock device are in acceptable condition and an ignition interlock device shall not be installed until the vehicle is in acceptable condition.

     (d) Follow the manufacturer's instructions and regulations outlined in this chapter for the installation, servicing and removal of ignition interlock devices.

     (e) Install the following physical anti-tampering measures:

     (i) Place all connections and associated wiring between an ignition interlock device and a vehicle in an area of the vehicle not immediately accessible or visible to the lessee or restricted operator.

     (ii) Cover with a unique and easily identifiable seal, epoxy, resin, shrink wrap, sheathing, or tamper proof tape:

     (A) Any portion of an ignition interlock device that can be disconnected;

     (B) Any wires used to install the ignition interlock device that are not inside a secured enclosure; and

     (C) Mark points likely to be accessed when attempting to tamper with the ignition interlock device with other material unless the ignition interlock device is capable of recording such attempts to tamper with it.

     (4) A service center or ignition interlock technician will:

     (a) Thoroughly train a restricted operator on the proper use and functionality of an ignition interlock device; and

     (b) Provide a user reference, operation, and problem-solving guide in English or Spanish to the restricted operator when an ignition interlock device is installed.

     (5) A service center or ignition interlock technician will be available during all posted hours of operation to answer all questions and handle any problems related to a restricted operator's ignition interlock device, including repair or replacement of an inoperable or malfunctioning ignition interlock device.

[]


AMENDATORY SECTION(Amending WSR 09-18-073, filed 8/31/09, effective 10/1/09)

WAC 204-50-110   Mandatory ((operational features)) requirements for an ignition interlock device.   (1) Notwithstanding other provisions of this chapter, a certified ignition interlock device must:

     (((1))) (a) Be designed to permit a "restart" within two minutes of a stall or when the ignition has been turned off, except a "restart" will not be permitted during a violation reset condition.

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

     (c) Allow a minimum of 1500 ml or 1.5 L of breath for an acceptable breath sample.

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

     (((4) Be provided with an ample)) (e) Include a supply of twelve disposable mouth pieces designed to minimize the introduction of saliva into ((the)) an ignition interlock device.

     (((5))) (f) Be uniquely serial numbered. ((Along with any other information required by DOL or by an originating court, all reports to DOL or to an originating court concerning a particular device must include the name, address, and driver's license number of the lessee, and the unique number of the device. The name, address, telephone number (toll free), and contact person of the manufacturer or approved service provider furnishing such report must also be included as part of the report.

     (6))) (g) Uniquely identify and record each time the vehicle is attempted to be started and/or started, the results of ((the test)) all tests, retests or failures as being a malfunction of the device or from the operator not meeting the requirements, how long the vehicle was operated, and any indication of bypassing or tampering with the ignition interlock device, or tests.

     (((7))) (h) On or before January 1, 2012, enter into a violation reset condition if the operator attempts to start the vehicle three times within a fifteen minute time period with a BrAC higher than .025 g/210L or the alcohol concentration as prescribed by the originating court.

     (i) Require the operator of the vehicle to submit to a retest within ten minutes of starting the vehicle. ((Retesting)) A rolling retest must continue at randomly variable intervals ((not to exceed sixty minutes after the first retest)) ranging from ten to forty-five minutes after the previous retest for the duration of the travel. ((The device must:

     (a))) (j) Be equipped with a method of immediately notifying ((peace)) law enforcement officers if ((the required retest(s) above is not performed,)) a violation reset occurs from a rolling retest or ((if)) the result of the retest exceeds the lower of ((.025 BAC)) .025 g/210L BrAC or the alcohol concentration as prescribed by the originating court. ((Examples of acceptable)) Acceptable forms of notification are repeated honking of the vehicle's horn, repeated flashing of the vehicle's headlamps, or the ((wailing)) use of ((a small siren)) an audible signaling device. Such notification may be disabled only by switching the engine off, or by the achievement of a retest at a level the lower of ((.025 BAC)) .025 g/210L BrAC or the maximum allowable alcohol concentration as set by the originating court.

     (((b) Automatically enter a violation reset condition. A device which enters a violation reset condition and the vehicle in which it is installed, must be returned to the manufacturer or ASP to be serviced)) (k) Enter into a lockout if a violation reset occurs unless the vehicle is serviced at a mobile or fixed site service center by a certified technician where it will be calibrated, downloaded and the wiring harness physically inspected within five days ((or the device must render the vehicle inoperable)) of when the violation reset occurred.

     (2) The manufacturer, vendor, ignition interlock technician or ((approved)) service ((provider)) center must notify the originating court (if any) of such violation reset conditions within five days of servicing the ignition interlock device in a format acceptable to the originating court ((within five days of servicing the device)). The manufacturer, vendor or ((ASP)) service center must provide notification to DOL and ((IDS)) impaired driving section in ((a format)) an acceptable electronic format should DOL or ((IDS)) impaired driving section promulgate rules requiring such notification of a violation reset condition.

     (3) In addition to any other information required by DOL, the impaired driving section, or by an originating court, all reports to DOL, the impaired driving section or to an originating court concerning a particular ignition interlock device must include:

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

     (b) The vehicle license registration number of the single vehicle in which the ignition interlock device was installed;

     (c) The unique serial number of the ignition interlock device; and

     (d) The toll free telephone number, and certification number of the installing service center and ignition interlock technician who installed the ignition interlock device.

[Statutory Authority: RCW 46.37.005 and 46.04.215. 09-18-073, § 204-50-110, filed 8/31/09, effective 10/1/09. Statutory Authority: RCW 46.61.688(2). 05-17-065, § 204-50-110, filed 8/11/05, effective 9/11/05. Statutory Authority: RCW 46.04.215 and 46.37.005. 99-01-156, § 204-50-110, filed 12/23/98, effective 1/1/99. Statutory Authority: 1987 c 247. 88-01-020 (Order 87-05-ESR), § 204-50-110, filed 12/9/87.]


AMENDATORY SECTION(Amending WSR 09-18-073, filed 8/31/09, effective 10/1/09)

WAC 204-50-120   ((Other provisions.)) Additional requirements.   (1) Notwithstanding other provisions of this chapter, each manufacturer of a certified ignition interlock device, either on its own or through ((its approved)) a vendor or service ((provider(s) must)) center shall:

     (((1))) (a) Guarantee repair or replacement of a defective ignition interlock device within the state of Washington within a maximum of forty-eight hours of receipt of a complaint or known failure of an ignition interlock device.

     (((2))) (b) Demonstrate to the satisfaction of ((IDS)) impaired driving section, a service delivery plan under which any restricted operator may obtain installation and routine service of that manufacturer's ignition interlock device within a seventy-five mile radius of his or her place of residence.

     (((3) Provide IDS, a map of the state of Washington showing the area covered by each approved service provider, and the name, address, and telephone number of each approved service provider.

     (a))) (c) Receive written approval from impaired driving section and require lessees and restricted operators to sign an agreement to abide by all aspects of WAC 204-50-080 before mobile service centers may work outside of the umbrella of their overseeing fixed site service center(s) to provide service in rural areas of the state.

     (d) Provide any written notification of any changes to ((its authorized)) a manufacturer's service ((provider)) center network to the impaired driving section within ((ten)) seven days of such change.

     (((b) Any additions to the approved service provider network, provide evidence to IDS that any added ASPs have the insurance coverage as required by subsection (7) of this section.

     (4))) (e) Maintain a twenty-four hour, three hundred sixty-five days a year toll-free telephone number for lessees and/or restricted operators to call if they have problems with the ignition interlock device they have leased from the manufacturer, vendor or ((approved)) service ((provider)) center. Calls must either be answered by ((a)) an ignition interlock technician qualified to service the manufacturer's ignition interlock devices, or the call must be returned by a qualified technician within thirty minutes of the original call.

     (((5) Provide the lessee 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 provided without charge. To ensure equal accessibility of the benefits of this technology to all citizens of the state of Washington, such pricing must be uniform statewide.

     (6) Provide 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.

     (7))) (2) The manufacturer shall provide to ((IDS)) the impaired driving section proof on or before the expiration date listed on the current valid insurance on file with the impaired driving section that the manufacturer has products liability insurance coverage with minimum liability limits of one million dollars per occurrence, and three million dollar aggregate. Liability covered must include, but not 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 Washington as an additional insured, and must agree to notify ((IDS)) the impaired driving section not less than thirty days before the expiration or termination of such coverage. Insurance coverage required in this subsection must be in addition to, and not considered a replacement for coverage required in subsection (((8))) (3) of this section.

     (((8))) (3) A vendor or service center shall provide ((IDS)) the impaired driving section proof on or before the expiration date listed on the current valid insurance on file with the impaired driving section that each and every ((ASP)) service center has:

     (a) Garage keepers liability insurance coverage with minimum liability limits of fifty thousand dollars. Liability covered must include, but not be limited to, damage to lessee's vehicle and personal property while in the care and/or custody of the ((ASP)) service center. ((Further must provide IDS proof that each and every ASP has completed))

     (b) Operations insurance coverage with minimum liability limits of one million dollars per occurrence, and two million dollars aggregate. Liability covered must include, but not be limited to, defects in materials and workmanship during installation, removal, service, calibration, and monitoring.

     ((All such)) (c) Insurance ((must be)) provided by a company authorized to offer such coverage in the state, and such company must include the state of Washington as an additional insured, and must agree to notify ((IDS)) the impaired driving section not less than thirty days before expiration or termination of such coverage.

     (d) Insurance coverage required in this subsection must be in addition to and not considered a replacement for other coverage required in ((subsection (6) of)) this section.

     (((9))) (4) A vendor or service center shall notify the DOL in an acceptable format and if so requested by the originating court, notify the originating court, if any, of the removal of ((a)) an ignition interlock device under any circumstances other than:

     (a) Immediate ignition interlock device repair needs.

     (b) Removal of the ignition interlock device in order to switch it to a replacement vehicle to be operated by the restricted operator. Report of such a vehicle switch including the license of the vehicle must be transmitted to the DOL, and the originating court within two business days of such a switch, if so requested by the originating court at the time of initial installation of the ignition interlock device. Report of such a vehicle switch must be transmitted to the DOL within two business days of such a switch, if so requested by the DOL. NOTE: Whenever ((a)) an ignition interlock device is removed for repair, and cannot be immediately reinstalled, a substitute ignition interlock device must be utilized. Under no circumstances will a manufacturer ((or ASP)), service center or ignition interlock technician knowingly permit a restricted operator to drive a vehicle not equipped with a functioning ignition interlock device.

[Statutory Authority: RCW 46.37.005 and 46.04.215. 09-18-073, § 204-50-120, filed 8/31/09, effective 10/1/09. Statutory Authority: RCW 46.61.688(2). 05-17-065, § 204-50-120, filed 8/11/05, effective 9/11/05. Statutory Authority: RCW 46.04.215 and 46.37.005. 99-01-156, § 204-50-120, filed 12/23/98, effective 1/1/99. Statutory Authority: 1987 c 247. 88-01-020 (Order 87-05-ESR), § 204-50-120, filed 12/9/87.]


AMENDATORY SECTION(Amending WSR 09-18-073, filed 8/31/09, effective 10/1/09)

WAC 204-50-130   ((Removal procedures.)) Requirements for removing an ignition interlock device.   ((The manufacturer or its approved service provider must remove the device and return the vehicle in normal operating condition. The manufacturer or its ASP must provide any final report requested by the originating court, IDS and/or requested by DOL.)) (1) An ignition interlock device shall not be removed from a restricted operator's vehicle(s) unless the restricted operator has met all of the requirements of RCW 46.20.720(4) during the last four months of a restricted operator's mandated ignition interlock device period. A vendor will determine a restricted operator's compliance of this section in accordance with RCW 46.20.720.

     (2) The manufacturer or its service center must remove the ignition interlock device after authorization has been obtained under subsection (1) of this section and return the vehicle in normal operating condition.

     (3) An ignition interlock technician or service center can only remove an ignition interlock device for which they have been certified to service, unless an ignition interlock technician or service center has received written approval from the impaired driving section allowing it to remove an ignition interlock device that it has not been certified to remove.

     (4) A manufacturer or its service center shall provide any final report requested by the originating court, impaired driving section and/or requested by DOL to the requestor once the ignition interlock device has been removed from a restricted operator's vehicle(s).

[Statutory Authority: RCW 46.37.005 and 46.04.215. 09-18-073, § 204-50-130, filed 8/31/09, effective 10/1/09. Statutory Authority: RCW 46.61.688(2). 05-17-065, § 204-50-130, filed 8/11/05, effective 9/11/05. Statutory Authority: RCW 46.04.215 and 46.37.005. 99-01-156, § 204-50-130, filed 12/23/98, effective 1/1/99. Statutory Authority: 1987 c 247. 88-01-020 (Order 87-05-ESR), § 204-50-130, filed 12/9/87.]


NEW SECTION
WAC 204-50-140   Review of denial, suspension or revocation of certification.   (1) The chief or designee may deny, suspend, or revoke a letter of certification for an ignition interlock device, service center, or ignition interlock technician upon 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 chief or designee will give the applicant or certificate holder notice of the action and an opportunity to be heard as prescribed in chapter 34.05 RCW, prior to denial, suspension, or revocation of the letter of certification, except as provided in subsection (2) of this section.

     (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 Washington State Patrol Impaired Driving Section, 811 East Roanoke St., Seattle, WA 98102; and

     (ii) Be received by the patrol's impaired driving section within twenty business days after the date of the notice of action.

     (2) The chief or designee may, without prior notification, suspend a letter of certification for a device, service center, or ignition interlock technician if the chief or designee finds that there is danger to the public health, safety, or welfare that requires immediate action. For every summary suspension of a letter of certification, an order signed by the chief or designee must be entered in accordance with the provisions of RCW 34.05.479.

     (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 under RCW 34.05.440.

     (4) Administrative proceedings consistent with chapter 34.05 RCW for revocation or other action will be promptly instituted and determined. The chief or designee must give notice as practicable to the letter of certification holder.

     (5) Unless the chief or designee finds the 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 chief or designee finds that immediate revocations is necessary.

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NEW SECTION
WAC 204-50-150   Hearing procedure.   (1) Hearings under this chapter will be pursuant to chapters 34.05 RCW and 10.08 WAC as supplemented by this section.

     (2) A presiding officer will conduct a hearing and any prehearing conference(s).

     (3) The burden of proof in any hearing will be on the applicant seeking the letter of certification, or on the person or agency seeking the suspension or revocation of a letter of certification or other action by the chief or designee.

     (4) Oral proceedings must be recorded by the method chosen by the chief or designee and such recording will become part of the hearing record.

     (5) The following process applies to administrative hearings under this chapter:

     (a) The patrol will notify the assistant attorney general of the petitioner's request for an administrative hearing.

     (b) The assistant attorney general will draft an administrative complaint and send it to the petitioner and to the office of administrative hearings.

     (c) The office of administrative hearings will schedule a hearing date, and will notify the petitioner, assistant attorney general, and patrol in writing of the hearing date, time, and location.

     (d) The hearing will be conducted by an administrative law judge assigned by the office of administrative hearings.

     (e) At the hearing, the assistant attorney general will present witnesses and other evidence on behalf of the patrol.

     (f) At the hearing, the petitioner may be represented by an attorney or may choose to represent himself or herself. The petitioner or his/her attorney will be allowed to present witnesses and other evidence.

     (g) Nothing in this section will prevent the parties from resolving the administrative matter by settlement agreement prior to conclusion of the administrative hearing.

     (6) Initial and final order. At the conclusion of the hearing, the administrative law judge will prepare an initial order and send it to the petitioner and the assistant attorney general.

     (a) Either the petitioner or the assistant attorney general, or both, may file a petition for review of the initial order with the patrol within twenty days of the date of service of the initial order. A petition for review must:

     (i) Specify the portions of the initial order to which exception is taken;

     (ii) Refer to the evidence of record which is relied upon to support the petition; and

     (iii) Be filed with the patrol within twenty days of the date of service of the initial order.

     (b) A party on whom a petition for review has been served may, within ten days of the date of service, file a reply to the petition. Copies of the reply must be mailed to all other parties or their representatives at the time the reply is filed.

     (c) The administrative record, the initial order, and any exceptions filed by the parties will be submitted to the chief or his/her designee for review. Following this review, the chief or his/her designee will enter a final order that is appealable under the provisions of chapter 34.05 RCW.

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     Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 204-50-160   Appeal.   Any person aggrieved by the decision of the chief or designee denying, suspending, or revoking a certification may appeal such decision to the superior court under the provisions of chapter 34.05 RCW.

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