Part 1.
TEXAS DEPARTMENT OF PUBLIC SAFETY
Chapter 19.
BREATH ALCOHOL TESTING REGULATIONS
Subchapter B. TEXAS IGNITION INTERLOCK DEVICE REGULATIONS
37 TAC §§19.21 - 19.29
The Texas Department of Public Safety adopts amendments to §§19.21-19.23,
19.25, 19.26, 19.28, and 19.29, concerning Texas Ignition Interlock Device
Regulations, without changes to the proposed text as published in the April
19, 2002, issue of the
Texas Register
(27
TexReg 3311). §19.24 and §19.27 are adopted with changes and will
be republished.
Amendments to the sections are necessary in order to allow the department
to enforce shortcomings in interlock vendor actions and guide the interlock
vendor to more easily regain lost certification in the program.
Oral comments were received from Ms. Deborah Coffee and Mr. Jim Ballard
of Smart Start, Inc., concerning the proposed changes. The comments as well
as the department's response are summarized below.
COMMENT: Smart Start opposes the proposed change at 19.24(a)(4) that would
reduce requirements on IID Vendors concerning mandatory reporting of tampering
to the appropriate judicial authority. In fact, Smart Start believes that
there should be a 48 hour time limit for reporting such tampering. The proposed
change will reduce cost to the industry but Smart Start believes that this
is the wrong direction to be going with reporting of tampering and will lessen
the effectiveness of the IID program.
RESPONSE: The department does not believe that the proposed change at 19.24
will lessen the effect of IID usage. A survey of "appropriate judicial authorities"
in the April 2002 issue of the
Journal of the Texas
Probation Association
has drawn no response to date indicating what
they would or would not like to see in the way of required reports. Even though
the proposed change will still allow those authorities that want such a report
to require that report, we are not opposed to reinstating the old wording
with only changes from the words "judiciary" to "judicial" and "scientific
director" to "department."
CHANGE: Concerning subsection (a)(4), delete the proposed text that reads
as follows: "When evidence of tampering is discovered, these records shall
be made available to the appropriate judicial authority and upon request to
the department." Amend subsection (a)(4) to read as follows: When evidence
of tampering is discovered, the appropriate judicial authority shall be notified
in writing and these records shall be made available upon request to the department."
COMMENT; Smart Start also opposes the proposed change at 19.27(c)(4)(A)
that would reduce requirements on IID Vendors concerning mandatory reporting
of any violation of a court order (concerning the use of an IID) to the appropriate
judicial authority. Smart Start believes that the current 48 hour time limit
for reporting such tampering should remain in effect.
RESPONSE: Upon re-evaluation of this passage, the department realized that
the current wording at 19.27(c)(4)(A) is required by law (Texas Transportation
Code, §521.2476(b)(7)) and so we are reinstating the original wording
with only a change from the word "judiciary" to "judicial."
CHANGE: Concerning subsection (c)(4)(A), delete the proposed text that
reads as follows: "submitting violation(s) if any, of any court order to the
appropriate judicial authority when requested." Amend subsection (c)(4)(A)
to read as follows: submitting violation(s) if any, of any court order to
the appropriate judicial authority, not later than 48 hours after the vendor
discovers the violation."
The amendments are adopted pursuant to Texas Government Code, §411.004(3),
which authorizes the Public Safety Commission to adopt rules considered necessary
for carrying out the department's work and Texas Transportation Code, §521.2476,
which requires the department to create and maintain these rules.
§19.24.Miscellaneous Requirements.
(a)
Anticircumvention. The device shall be designed so that
anticircumvention features will be difficult to bypass.
(1)
Anticircumvention provisions shall include, but not be
limited to, prevention or preservation of evidence of cheating by attempting
to use bogus or filtered breath samples or bypassing the breath sampling requirements
of the device electronically.
(2)
The device may use special seals or other methods that
record attempts to bypass anticircumvention provisions.
(3)
The device shall be checked for evidence of tampering at
least once every sixty (60) days or more frequently if the need arises.
(4)
When evidence of tampering is discovered, the appropriate
judicial authority shall be notified in writing and these records shall be
made available upon request to the department.
(b)
Operational features.
(1)
The device shall be designed to permit a free restart of
a motor vehicle's ignition within a reasonable time as approved by the department
after the ignition has been shut off, without requiring a further alcohol
analysis.
(2)
The device shall also automatically purge alcohol before
allowing subsequent analyses. In addition to the operational features of these
regulations, the department may impose additional requirements, as needed,
depending upon design and functional changes in device technology.
(3)
The device shall have a data storage system of sufficient
capacity to facilitate the recording and maintaining of all daily driving
activities for the period of time elapsed from one maintenance and calibration
check (as referred to in §19.25(a)(a)) of this title (relating to Maintenance
and Calibration Requirements) to the next.
(c)
Product liability. The manufacturer of the device shall
carry liability insurance covering product liability, including coverage in
Texas with a minimum policy limit of $1 million.
(d)
Service support. The manufacturer shall ensure responsibility
for service support within a maximum of 48 hours after notification of a reported
malfunction. This support shall be in effect during the period the device
is required to be installed in a motor vehicle.
(e)
Modifications. Once a device by model and/or class has
been approved, no modification in design or operational concept may be made
without prior written consent of the department. This does not include replacement
or substitution of repair parts to maintain the device nor software changes
that do not modify the operational concept of the device.
(f)
Warning label. A label warning against tampering, circumventing,
or misuse shall be affixed to each device.
(g)
Safety. The device shall be designed to comply with generally
recognized safety requirements.
(h)
Specification and operating instructions. Manufacturers
shall provide to the department with each device submitted for approval, a
precise set of specifications, which describe the features of the device concerned
in the evaluation of its performance. A set of detailed operating instructions
shall be supplied with each device.
(i)
Product indemnity. The manufacturer shall provide a signed
statement that the manufacturer shall indemnify and hold harmless the state
of Texas, the department and its officers, employees, and agents from all
claims, demands, and actions, as a result of damage or injury to persons or
property which may arise, directly or indirectly, out of any act or omission
by the manufacturer or their representative relating to the installation,
service, repair, use and/or removal of an IID.
(j)
General. Any other requirements as may be determined necessary
by the department to ensure that the device functions properly and reliably.
§19.27.Certification and Inspection of Service Centers.
(a)
All IID service centers conducting business in this state,
whether fixed site or mobile, must have the approval of and be certified by
the department.
(b)
To initiate certification for an IID service center, a
vendor or the IID manufacturer's representative shall submit an application
to the department for approval. The application, available from the department,
shall show the physical location of the service center, the brand and/or model
of the ignition interlock device(s) to be merchandised and the reference sample
device(s) to be used. The application shall also contain a statement acknowledging
permission from the IID manufacturer to vend the IID described by the application.
Only IIDs listed on the approved list referenced in §19.22(a) of this
title (relating to Procedure for Device Approval) may be merchandised. A
vendor applying for certification of an IID service center must agree to:
(1)
allow access for inspection under subsection (d) of this
section,
(2)
comply with subsection (g) of this section,
(3)
comply with subsection (c) of §19.24 of this title
(relating to Miscellaneous Requirements) concerning product liability and
liability insurance requirements, and
(4)
comply with subsection (d) of §19.24 of this title
(relating to Miscellaneous Requirements) concerning service support requirements.
(c)
All IID testing techniques, in order to be approved, shall
meet, but not be limited to, the following:
(1)
A certified IID service center shall be located in a facility
which properly and successfully accommodates installing, inspecting, downloading,
calibrating, repairing, monitoring, maintaining, servicing and/or removing
a specific IID device(s). The service center must incorporate the use of analysis
of a reference sample such as headspace gas from a mixture of water and a
known weight of alcohol at a known temperature, the results of which must
agree with the reference sample predicted value as in §19.25(b)(1)(A)
and (B) of this title (relating to Maintenance and Calibration Requirements),
or other methodologies that may be approved by the department. Preparatory
documentation (such as certificate of analysis) on the reference sample solution(s)
shall be available to the department. Only reference sample devices approved
by the department may be used in certified IID operations.
(2)
Services rendered by the IID service center must be performed
by a properly trained and certified service representative. IID service centers
shall maintain sufficient staff to ensure an acceptable level of service.
Monitor checks shall be scheduled in a manner such as not to deprive the client
of an acceptable level of service. The IID service center must at all times
be staffed with at least one certified service representative. Potential service
representative candidates may train in the certified IID service center only
under the direct supervision of a currently certified service representative.
The potential service representative candidate will be given a reasonable
time as determined by the department to train before being required to take
and pass the IID service representative examination.
(3)
All analytical results shall be expressed in grams of alcohol
per 210 liters of breath (g/210L).
(4)
The applicant must agree to maintain any specified records
designated by the department, including but not limited to:
(A)
submitting violation(s) if any, of any court order to the
appropriate judicial authority, not later than 48 hours after the vendor discovers
the violation,
(B)
maintaining complete records of each device installation
for five years from the date of the removal,
(C)
making IID records available, either by inspection or via
copy to any appropriate judicial authority and upon request to the department.
(5)
All anticircumvention features must be activated on any
installed IID.
(6)
The device must be installed and inspected in accordance
with any applicable court order. Furthermore, the service center, through
the certified IID representative(s), shall perform a visual inspection of
the vehicle, the device, and the device's wiring to ensure no tampering or
circumvention has occurred during the monitoring period. In the case wherein
the client returns to the service center as in §19.25(a) of this title
(relating to Maintenance and Calibration Requirements) absent their vehicle,
such fact shall be made available to the appropriate judicial authority.
(d)
An IID inspector or a designated representative of the
department may at any time make an inspection of the certified IID service
center to ensure compliance with these regulations.
(e)
A designated custodian of records, when required, shall
be provided by the vendor to testify in court and provide testimony concerning
the interpretation of any data storage system records, as required by these
courts and to answer questions concerning certification of the IID program.
(f)
Upon proof of compliance with subsections (a)-(c) of this
section, certification will be issued by the department. Issuance of a certificate
to the service center shall be evidence that the service center meets all
necessary criteria for approval and certification. Prior to issuance of the
certification, an on- site evaluation may be required by the department to
ensure compliance with the provisions of this section.
(g)
Certification of the IID service center is contingent upon
the applicant's agreement to conform and abide by any directives, orders,
or policies issued or to be issued by the department regarding any aspect
of the IID service center; this shall include, but not be limited to, the
following:
(1)
program administration;
(2)
reports;
(3)
records and forms;
(4)
inspections;
(5)
methods of operations and testing techniques;
(6)
personnel training and qualifications;
(7)
criminal history considerations for service representatives;
and
(8)
records custodian.
(h)
Certification of an IID service center may be denied, withdrawn,
inactivated, suspended, or revoked by the department if a vendor, service
center, service representative, or IID equipment fails to meet all criteria
stated in this section, or if the vendor violates any law of this state that
applies to the vendor. An IID service center whose pending application for
certification has been denied, or an IID service center whose certification
has been withdrawn, inactivated, suspended or revoked may appeal such action
in writing to the director, who will decide whether the action of the department
will be affirmed or set aside. The director may allow the pending application
for certification of the IID service center, or the director may reinstate
certification of the IID service center appealing the withdrawal, inactivation,
suspension or revocation of certification under such conditions deemed necessary.
(i)
Recertification of a service center whose certification
has been withdrawn, inactivated, suspended or revoked will require a written
request from the applicant to the department and successful completion of
the original requirements for certification as outlined in subsection (b)
of this section and/or other requirements as determined by the department.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 20, 2002.
TRD-200203865
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Effective date: July 10, 2002
Proposal publication date: April 19, 2002
For further information, please call: (512) 424-2135
Subchapter A. VEHICLE INSPECTION STATION LICENSING
Chapter 23.
VEHICLE INSPECTION