New York Register, Volume 39, Issue 31, August 2, 2017

Document

Cited authorities 1

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Jurisdiction	New York
Library	New York Register
Published date	02 August 2017
Year	2017

RULE MAKING

ACTIVITIES

Each rule making is identiﬁed by an I.D. No., which consists

of 13 characters. For example, the I.D. No. AAM-01-96-

00001-E indicates the following:

AAM -the abbreviation to identify the adopting agency

01 -the State Register issue number

96 -the year

00001 -the Department of State number, assigned upon

receipt of notice.

E -Emergency Rule Making—permanent action

not intended (This character could also be: A

for Adoption; P for Proposed Rule Making; RP

for Revised Rule Making; EP for a combined

Emergency and Proposed Rule Making; EA for

an Emergency Rule Making that is permanent

and does not expire 90 days after ﬁling.)

Itali cs con tain ed in text denote new material. Brackets

indicate material to be deleted.

Division of Criminal Justice

Services

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

Handling of Ignition Interlock Cases Involving Certain Criminal

Offenders

I.D. No. CJS-31-17-00004-P

PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-

cedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action: Amendment of sections 358.1-358.3, 358.4(a) , (c), (d)

and 358.5-358.8; and addition of section 358.10 to Title 9 NYCRR.

Statutor y authorit y: L. 2009, c h. 486; spec iﬁcally Vehicle an d Trafﬁc

Law, sections 1193(1)(g) and 1198(5)(a)

Subject: Handling of Ignition Interlock Cases Involving Certain Criminal

Offenders.

Purpose: To promo te public/ trafﬁc saf ety, offender acc ountabil ity and

quality assurance through the establishment of minimum standards.

Substance of pr oposed rule (F ull text is post ed at the follow ing State

website :http: //www.cri minalj ustice. ny.gov/) : These pr oposed am end-

ments make substantive and technical changes to the Division of Criminal

Justic e Servic es rule , entitl ed “Han dling of I gniti on Inter lock Ca ses

Involving Certain Criminal Offenders”. Overall, it updates, clariﬁes, a nd

strengthens regulat ory provisions to bett er enhance public/tr afﬁc safety,

achieve greater offender accou ntability, and guarantee quality assur ance

with respect to Ignition Interlock Device (IID) program service delivery.

Rule Sections 35 8.1 and 358.2 are am ended to update th e objectives

and applicability regulatory language to reﬂect recent statutory changes.

Rule Section 358.3 governing deﬁnition s, is amended to reﬁne and/or

reinforce certain deﬁnitiona l terms. Two new deﬁnitions of “Emergency

Notiﬁcation Program” and “real time reporting” are also added to reﬂec t

new programmatic features which are now operational.

Several proposed amendments are made to Rule Section 358.4 govern-

ing Ignition Interlock Program Plans. Plan content is updated to incorpo-

rate rec ent stat utory c hanges a s to impos ition o f IIDs in ad vance of

sentencing and to better ensure that plans reﬂect handling of interim proba-

tion supervision cases. Additional proposed language will facilitate timely

notiﬁcation procedures to monitors where a court approves reduction in a

breath sample in accordance with new regulatory provisions.

Rule Section 358.5, governing the Approval Process and Responsibili-

ties of Qualiﬁed Ma nufacturers, is a mended with resp ect to applicatio n

procedures, including but not limited to, updating outdated language, and

esta bli shin g par amet ers s urr ound ing o pen ap pli cati on pr oce ss and

contractu al term to pro mote consi stency. Other p roposed ch anges are

sought to achieve greater offender and service delivery accountability. For

example, new reporting language is proposed with respect to test results to

better guarantee serious failed tests by operators are timely reported. Other

changes strengthen provisions to establish timely DCJS notiﬁcation of sig-

niﬁcant operational service delivery problems. Signiﬁcantly, a new regula-

tory provision establishes a mechanism consistent with National Highway

Trafﬁc Safety Administration standards which will permit court authoriza-

tion of a reduced breath sample for certain operators with certain health is-

sues which prevent them from regular operational usage of the IID.

Rule Section 358.6 governing cancellation, suspension, and revocation

of qualiﬁed manufacturers, installation and service providers and IIDs, is

modiﬁed to clarify that verbal and/or written notiﬁcation or communi ca-

tion of disapproval, suspension in whole or in part, of revocation or cancel-

lation of a manufacturer’s device, services, and/or oper ations by another

state or jurisdiction, may result in revocation of a certiﬁed IID or suspen-

sion or removal of a qualiﬁed manufacturer or installation/service provider

in New York State.

Proposed changes to Rule Section 358.7 governing monitoring and Rule

Section 358.8 governing installation and costs, would update these regula-

tory provisions to reﬂ ect recent statutory c hanges and reference i nterim

probation supervision. Additionally, Rule Section 358.7 sets forth revised

intrastate and interstate monitoring procedures to establish tha t for intra-

state cond itiona l discharg e cases, th e sentenc ing count y monitor s hall

contact the monitor in t he county of residence t o determine the class of

IID available an d the sentencing c ounty monitor sh all perform moni tor

services. Further where there is an Emergency Notiﬁcation Pro gram, the

monitor sh all notif y the IID Manu facture r so that the de signate d law

enforcement agency w ithin the county of resi dence shall receive al l ap-

plicable c ommunica tions/no tiﬁcati ons. Furth er, where an IID i s to be

imposed in advance of sentencing, the monitor in the county of residence

is to be similarly contacted by the monitor in the county where the court

orders installation to determine the speci ﬁc class and features of the IID

availab le and an id entical p rocedu re will be r equired f or Emerge ncy

Notiﬁcation Programming in the county of residence. With respect to in-

terstate transfer, regulatory language is streamlined.

Among proposed regulatory changes are the following:

DReﬂects the imposition and monitoring of IIDs installed in conjunc-

tion with interim proba tion supervision and i n cases prior to sentenci ng

pursuant to a court order.

DClariﬁes that the p eriod of IID restri ction will comme nce from the

earlier of the date of sentencing, or the date of installation in advance o f

sentencing and that a court may not authorize the operation of a motor ve-

hicle by any individual whose license or privilege to operate a motor vehi-

cle has been revoked.

DEstablishes that monitors select the class and feat ures of IIDs avail-

able from an a vailabl e manufac turer in th e region wh ere an oper ator

resides.

DRequires that the applicable monitor coordinate monitoring with the

NYS Department of Corrections and Comm unity Supervision (DOCCS)

where the opera tor is under DOCC S supervision a nd promptly pro vide

such agency with reports of any failed tasks or failed reports.

DRequires a court authorization for a reduction in breath sample to be

consistent with NHTSA requirements and that every county plan estab-

lishes a procedure whereby the probation department and any other moni-

tor be notiﬁed no l ater than ﬁve (5 ) business days f rom any such cou rt

approval.

DRequires all jurisdictions to submit an IID plan reﬂective of all opera-

tors who may be subject to IID installation and maintenance with monitor-

ing ordered by a court in advance of sen tencing or at sentencing, and to

make modiﬁcations or updates, as required by DCJS. DCJS has required

since 2014 that plans have procedures in this area and to amend plans to

be consistent with law and regulatory provisions.

DClariﬁes recent statutory changes to better ensure that youth adjudi-

cated as YouthfulOffenders of DWI and/or other alcohol related offenses

are subject to IID installation and related compliance provisions.

DClariﬁes recent statutory change that affected operators provide proof

of installation complianc e with the IID requirement to th e court and the

applicable monitor wh ere such person is under p robation or condition al

discharge supervision.

DRequires that manufacturers:

o Provide documentat ion and veriﬁcation o f their respective St andby

Letter of Credit (SLOC) as speciﬁed in the manufactur er’s contract with

New York State;

o The SLOC was previously incorporated in DCJS 2013 contracts with

manufacturers.

o Adhere to any county plan real time reporting and emergency notiﬁca-

tion program requirements.

o Provide immediate w ritten notice to DCJ S and the DOH whenever

their IID devices , services, and/o r operations has be en compromised or

does not function as intended in NYS or any other state or jurisdiction or

disapp roved or s uspend ed in who le or in par t, revok ed or othe rwise

cancelled by another state or juri sdiction or has received notice o r com-

munication from anot her state or jur isdiction t hat any such ac tions are

imminent.

Additionally, as existing DOH regulations require prior approval with

respect to any operational modiﬁcation of IIDs, new regulatory language

reiterates this requirement and for any manufacturer to provide necessary

documentation to DO H and that any such manuf acturer notify DCJS o f

any intent to do so and provide a written summary of any requested or ap-

proved modiﬁcation.

Lastly, a new Section 358.10 is added which incorporates by reference

the National Highway Trafﬁc Safety Administration’s Standards govern-

ing Model Speciﬁca tions for Breath Alcohol I gnition Interloc k Devices

and cites where these may be found.

Text of proposed rule and any required statements and analyses may be

obtained from: Linda J. Valenti, DCJSAssistant Counsel, NYS DI vision

of Criminal Justice Services,Alfred E. Smith Ofﬁce Building, Room 832,

80 South Sw an Street , Albany, NY 12210, (5 18) 457-8 413, emai l:

linda.valenti@dcjs.ny.gov

Data, views or arguments may be submitted to: Same as above.

Public comment will be received until: 45 days a fter publication of this

notice.

Regulatory Impact Statement

1. Statutory authority:

Chapter 496 of the Laws of 2009, commonly refe rred to as Leandra’s

Law was a groun dbreaking m easure whi ch strength ened variou s laws

speciﬁcally relative to driving while intoxicated (DWI) or while impaired

by drugs. The purpose of the law was to achieve greater offender account-

ability, promote public safety, combat and deter drunk driving, and better

safeguar d the welfa re of child p assenge rs. Among its p rovisio ns were

requirements of rulemaking to the former Division of Probation and Cor-

rectional Altern atives, whic h was merged in 201 0 with the Divi sion of

Criminal Justice S ervices (DCJS). S peciﬁcally, pursuant to Vehicle and

Trafﬁc Law (VTL) § 1193(1) (g) DCJS is res ponsible fo r promulgati ng

regulations governing the monitoring of compliance by persons ordered to

install and ma intain igni tion interlo ck devices to p rovide stan dards for

monitor ing by pro bation d epartm ents, an d option s for moni toring o f

compliance by such persons, that counties may adopt as an alternative to

moni tor ing by a p rob ati on dep art ment . Fur the r, VTL § 1198(5 )(a)

establishes that in t he event of a court waiv ing the cost of any oper ator

subject to the Leandra’s Law requirement of installation and maintenance

of an ignition interlock device (IID), “the cost of the device shall be borne

in accordance wit h regulations iss ued [by DCJS] …or purs uant to such

other agreement as may be entered into for provision of the device.”

2. Legislative objectives:

The proposed ru le amendment s serves both th e Governor ’s and the

Legislature’s underlying objective of “Leandra’s Law” and its subsequent

amendment, Chapter 169 of the Laws of 2013, to further strengthen DWI

laws and penalties through statewide implementation of IID conditions so

as to better enhance public/trafﬁc safety, achieve greater offender account-

ability, and guarantee quality assurance through the establishment of min-

imum standards for the usage and monitoring of IIDs following a convic-

tion of or adjudication as a Youthful Offender arising from a violation of

VTL § 1192(2), (2-a), (3) or any crime deﬁned by the VTLor Penal Law

of which an alcohol-related violation of any provision of § 1192 is an es-

sential element, or where ordered by a co urt in advance of sentence fol-

lowing an individual’s arrest for one of the speciﬁed offenses.

3. Needs and beneﬁts:

Rule amendments are necessary to reﬂect Chapter 169 of the La ws of

2013, as well as to incorporate particular changes of the revised National

Highway Trafﬁc Safety Administration (NHTSA) speciﬁcations for IIDs,

and achieve certain operational reﬁnements deemed appropriate following

programmatic experience.

The proposed regulatory changes are beneﬁcial to better safeguard the

public, optimize trafﬁc safety, and to promote greater offender and service

delivery accountability.

4. Costs:

a. DCJS does not anticipate that propose d rule revisions will result in

any additional costs to local government. The proposed regulatory changes

continue to allow ea ch jurisdiction w ith the ﬂexibility t o choose one or

more persons or entities responsible for monitoring conditional discharge

cases wh ere a defe ndant ha s been req uired to i nstal l and main tain a

functioning IID in any vehicle which they own or operate and affords the

same ﬂexibility as to cases involving individuals who agree or are ordered

to install and maintain an IID in advance of sentencing. Since 2010, DCJS

has ann uall y appli ed for a nd rece ived g rant fu ndin g from th e NYS

Governor’s Trafﬁc Safety Committee (GTSC) in NHTSA monies to help

offset loca l governmen t costs in per forming mo nitoring s ervices. C ur-

rently, monies are distributed to the localities pursuant to a formula based

on recent statistics of DWI conviction rates. DCJS is unaware of any local

government concerns with this for mula. DCJS has recently received a p-

proval of approximately 1.2 million doll ars for Federal ﬁscal year 2018,

similar to the prior Federal ﬁscal year award.

The revised regulation is not expected to result in any additional costs

to two of the three qualiﬁed manufacturers, nor to their installation/service

providers. One ma nufacturer, CST/In toxalock, may hav e additional ex-

penses as well as additional income as a result of operators having to visit

their installation/service providers rather than the past practice of mailing

in the handset s without serv ice visits. Thi s practice pre vented month ly

inspection of the I ID installatio n and the opportun ity for technicia ns to

detect any attempted tampering or circumvention by the operator, allow-

ing for a potential public safety risk.

In accordance with existing regula tions, all manufacturers applied f or

undertaking IID se rvice delivery in co nformity with NYS st atutory and

regulatory p rovisions. D CJS has contra cts with all man ufacturer s as to

operational performance and approve their maximum fee/charge schedule

which takes into account a 10% fee waiver cost.

Existing statutory and regulatory provisions govern IID costs. Amend-

ments do not chang e provisions in t his area. Statu torily, where a court,

determines ﬁnancial “unaffordabilit y”, it may impose a payment plan or

waive the fee. Where waived, jurisdictions ha ve established a procedure

whereby costs are proportionately borne among manufacturers utilized at

the local level.

b. Through grant funding received from GTSC, DCJS employs a full-

time Community Correction Representative 2 assigned to the IID program.

DCJS as noted earlier has received a GTSC award of NHTSA monies to

help offset monitor costs of local government incurred. DCJS does not an-

ticipate additional state and/or local costs from proposed revisions.

5. Local government mandates:

The existing r ule establis hed that ever y jurisdicti on must submi t for

DCJS approval an ignition interlock plan for monitoring the use of IIDs.

This revised rule states that a county may submit an amended plan on its

own initiative; and that DCJS may require modiﬁcations or updat es as it

deems necess ary to be consis tent with law o r regulatory p rovisions . In

2014, DCJS requested that localities submit amended IID Plans to reﬂect

any changes which may have occurred since the ﬁling of the original plans,

including those resulting from aforementioned Chapter 169 . The County

Plan content is stra ightforward, si mple, and largely pre scriptive to ease

any burden on localities. Monitoring functions associated with IID opera-

tors are statutorily required. DCJ S’ rule and proposed amendments have

been carefully stre amlined to afford cons iderable ﬂexibil ity, yet require

swift and certain court and district attorney notiﬁcation as to certain failed

tasks and failed tests. Additionally, it places speciﬁc responsibilities upon

qualiﬁed manufacturers , installation/servic e providers, as well as opera -

tors to provide timely information and/or reports to monitors so as to assist

them in managing their caseload.

6. Paperwork:

As noted above, this revised rule clariﬁes that jurisdictions may submit

an amended Count y IID Plan on its own i nitiative; an d that DCJS may

require modiﬁc ations or updat es as it deems nece ssary to be consi stent

NYS Register/August 2, 2017Rule Making Activities

with law or regulatoryprovisions. As part ofreceiving Federalaward mon-

ies, DCJS requires and jurisdictions agree to have their monitors provide

quarter ly statis tical in formati on regar ding IID pr ogram ope ration s to

DCJS. These statistical reports can be automatically generated by proba-

tion departments whic h use the Caseload Explor er system; 55 are using

the Caseload Explorer System a t this time and template report ing forms

are available for the remaining monitors.

IID Manufacturers wishing to conduct business in NYS are required to

apply to DCJS through a standardized application format. Currently three

manufacturers have contracts with DCJS. DCJS recently issued a Request

for Appli catio ns see king ad diti onal in teres ted ma nufac turer s and/ or

distribut ors and is in th e process of co ntractin g with anothe r company

which has received necessary certiﬁcation from the Department of Health

and agrees to adh ere to regulato ry and contrac tual requirem ents. Other

data reportin g requiremen ts imposed upon q ualiﬁed manu facturers and

installation/service providers are routine busine ss activities and essential

to offender account ability and commu nity safety. DCJS, in conju nction

with the Department of Motor Vehicles and Ofﬁce of Court Administra-

tion, and other partners, has developed approximately ﬁfteen (15) report-

ing forms to facilitate exchange of information and promote consistency,

which gre atly bene ﬁt all juri sdictio ns in prog ram imple mentati on and

compliance. The Financial Disclosure Report is available in both English

and Spanish.

7. Duplication:

While DOH certiﬁ es IIDs, this revi sion does not dup licate any other

existing State or Federal requirements.

8. Alternatives:

This proposal takes intoaccount changesin law, and NHTSA standards,

and certain othe r reﬁnements wh ich can only be acc omplished thr ough

revis ing th e exis ting r egul atio n. In de velo ping t he pro posa l, DCJ S

considered feedback provid ed by the localities, qualiﬁe d manufacturers,

and other state and local entities. Additionally DCJS distributed an earlier

rule proposal and made additiona l revisions based on feedback rec eived

from stakeholders to addre ss certain operational is sues raised. This pro-

posal was discussed with and received support from the Probation Com-

mission at its meeting in April 2017. Overall, DCJS received positive sup-

port as to proposed regulatory changes.

9. Federal standards:

There are no federal standards g overning the monitoring of o ffenders

ordered to use a n IID Notably, NHTS A published ﬁnal up dated Model

Speciﬁcations for Breath Alcohol IIDs and this rule requires that any IID

used meets these revised Speciﬁcations. As NYS law requires monitoring

and DOH regulations require manufacturers with DOH approved certiﬁed

IIDs satisfy DCJS regulations, it is necessary that DCJS’rule and proposed

amendments be more comp rehensive than Federa l speciﬁcations, whic h

are guidelines for the performance and uniform testing of IIDs.

10. Compliance schedule:

In light of DCJS previously disseminating proposed regulatory changes

to all affected parties, positi ve feedback received, and th at revisions are

not substantial in nature, DCJS anticipates a 60 day maximum time from

adoption to rule amendments becoming effective.

Regulatory Flexibility Analysis

1. Effect of rule:

These propo sed regula tory amendm ents affect e very county a nd the

city of New York, qualiﬁed ignition interlock manufacturers doing bus i-

ness i n New York Sta te (N YS), t heir a ppro ved i nsta llat ion/ ser vice

providers. There ar e three (3) approv ed Ignition Inter lock Device (IID )

manufacturer s which also have co ntracts with the D ivision of Crimi nal

Justic e Servi ces (DCJ S) to pro vide ser vices t hrough out NYS . DCJS

recently issued a Requ est for Applications seekin g additional intere sted

manufacturers and/or distributors and is in the process of contracting with

one additional company which has received certiﬁcation of their IIDs by

the Depart ment of Hea lth (DOH), a nd agrees t o adhere to ap plicabl e

regulatory and contractual requirements. There are approximately 250 ap-

proved installation/service providers in NYS.

2. Compliance requirements:

The existing rule implemented Chapter 469 of the Laws of 2009, com-

monly referred to as ”Leandra’s Law”, provides for the monitoring of the

use of court-ordered IIDs ordered upon defen dants sentenced for a DWI

misdemeanor or felony. It also established various reporting, recordkeep-

ing, and other compliance requirements. The proposed regulatory amend-

ments, ( i) make mi nor modi ﬁcati ons to inc orpora te certa in stat utory

changes resulting from enactment of Chapter 169 of the Laws of 2013, (ii)

establishes parameters with respect to reduced breath samples for certain

opera tors an d testi ng requ irem ents co nsist ent wit h revis ed Nat ional

Highway Tra fﬁc Saf ety Adminis tration (NHTSA ) Breat h Alcohol IID

Model Speciﬁcations, (iii) makes limited revisions to improve program in-

tegrity and operational acceptability base d on the experience of the ﬁeld

since imp lement ation of t he origi nal rule , and (iv) a ddress es servic e

delivery and individual acco untability issues which hav e arisen. Among

proposed regulatory changes are the following: