PETITIONS FOR RULEMAKING
Vol. 35 Iss. 3 - October 01, 2018

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF COUNSELING

Initial Agency Notice

Title of Regulation: 18VAC115-20. Regulations Governing the Practice of Professional Counseling.

Statutory Authority: § 54.1-2400 of the Code of Virginia.

Name of Petitioner: Charles R. McAdams, III.

Nature of Petitioner's Request: To amend the requirements for licensure by endorsement to include the National Counselor Licensure for Endorsement Process (NCLEP) as a route for counselor licensure.

Agency Plan for Disposition of Request: The petition will be filed with the Registrar of Regulations and published on October 1, 2018, with comment requested until October 22, 2018. It will also be posted on the Virginia Regulatory Town Hall and available for comments to be posted electronically. At its first meeting following the close of comment, scheduled for November 2, 2018, the board will consider the request to amend regulations and all comments received in support or opposition and decide whether to initiate rulemaking.

Public Comment Deadline: October 22, 2018.

Agency Contact: Elaine J. Yeatts, Regulatory Coordinator, Department of Health Professions, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4688, or email elaine.yeatts@dhp.virginia.gov.

VA.R. Doc. No. R19-05; Filed September 7, 2018, 3:24 p.m.

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TITLE 24. TRANSPORTATION AND MOTOR VEHICLES

COMMISSION ON THE VIRGINIA ALCOHOL SAFETY ACTION PROGRAM

Initial Agency Notice

Title of Regulation: 24VAC35-60. Ignition Interlock Program Regulations.

Statutory Authority: § 18.2-270.2 of the Code of Virginia.

Name of Petitioner: David Hites.

Nature of Petitioner's Request: Under § 2.2-4007 of the Code of Virginia, I David Hites, ask that the following change be made to Virginia Administrative Code 24VAC35-60-70, Section F, Paragraph 3 from: "The ignition interlock device shall be alcohol specific, using an electrochemical fuel cell that reacts to and measures alcohol, minimizing positive results from other substances." to: "The ignition interlock device shall be alcohol specific, using any proven technology that reacts to and measures alcohol only, as defined in 24VAC35-60-20 "Definitions" meaning ethyl alcohol, also called ethanol (C2H5OH)." The law as currently written demands the use of fuel cell technology. It also demands that breath alcohol ignition interlock devices (BAIIDs) be ethanol specific. The two requirements cannot simultaneously be met. If the law requires BAIIDs to be specific to ethanol, then a fuel cell does not meet that requirement, as by its nature it will detect other alcohols. The law must be changed due to its inconsistency and impossibility to meet both standards. Thank you for your consideration.

Agency Plan for Disposition of Request: The Commission on VASAP will consider this petition at its March 2019 meeting (date to be determined).

Public Comment Deadline: December 14, 2018.

Agency Contact: Richard Foy, Field Services Specialist, Commission on the Virginia Alcohol Safety Action Program, 701 East Franklin Street, Suite 1110, Richmond, VA 23219, telephone (804) 786-5895, or email rfoy@vasap.virginia.gov.

VA.R. Doc. No. R19-04; Filed September 11, 2018, 2:29 p.m.

Agency Decision

Title of Regulation: 24VAC35-60. Ignition Interlock Program Regulations.

Statutory Authority: § 18.2-270.2 of the Code of Virginia.

Name of Petitioner: David Hites.

Nature of Petitioner's Request: On April 15, 2018, citing § 2.2-4007 of the Code of Virginia, David Hites submitted the below petition to the Commission on the Virginia Alcohol Safety Action Program (VASAP). The petition is in regard to the definition of "alcohol" in 24VAC35-60-20 as it relates to "alcohol specific" ignition interlock devices.

"Under § 2.2-4007 of the Code of Virginia, I David Hites submit the following petition to the Commission on VASAP: Suspend all future ignition interlock device installations in Virginia until a 100% ethanol specific device can be developed as is required by law. The current technology being used is NOT specific to ethanol as required by 24VAC35-60-70. The Commission on VASAP cannot allow electrochemical fuel cells to be used on breath alcohol ignition interlock devices as they are not specific to ethanol, but the problem is that the law requires only this technology which impedes development of newer (lawful) and better technology. I suggest that someone propose an amendment to the legislation allowing use of any technology that is specific to ethanol. Until then, all new installations must be suspended as they are ILLEGAL! The vendors cannot meet the terms of their contracts. They are subject to the paradox the law has created. At the March 2018 commission meeting, one interlock vendor, Alcolock, was under scrutiny for using a non-ethanol-specific device to which Alcohol Countermeasure Systems CEO Felix Comeaux admitted, as evidenced in the March 2018 commission quarterly meeting minutes, that his devices do detect other alcohols. Since it is now known and acknowledged that breath alcohol ignition interlock devices, due to the nature of their technology being an electrochemical fuel cell, can and do detect other substances to a degree that would cause an interlock user to fail a breath test, the vendors are not following Virginia law, which means the vendors are all in breach of contract with the state. Virginia law states: 24VAC35-60-20 "Alcohol" means ethyl alcohol, also called ethanol (C2H5OH). 24VAC35-60-70 "F. Except where otherwise required in this chapter, all ignition interlock devices shall meet the model specifications for Breath Alcohol Ignition Interlock Devices as set forth in the most current model specifications published in the Federal Register by the National Highway Traffic Safety Administration and operate reliably over the range of motor vehicle environments or motor vehicle manufacturing standards. At a minimum, the following specifications shall be met:" Paragraph 3. "The ignition interlock device shall be alcohol specific, using an electrochemical fuel cell that reacts to and measures alcohol, minimizing positive results from other substances." Since alcohol is defined as ethanol and interlock devices must be ALCOHOL specific, that would mean that ignition interlocks must measure ethanol ONLY and no other substance, including other alcohols. Since vendors' contracts stipulate that they will obey all Virginia laws, they have all violated the above statutes and have therefore violated their contracts. I am requesting that all ignition interlock vendors be suspended from taking on new clients until an ethanol specific device is developed."

Agency Decision: Request denied.

Statement of Reason for Decision: In accordance with the requirement of § 2.2-4007 of the Code of Virginia, Petition #272 was filed with the Virginia Registrar of Regulations on April 16, 2018. At its meeting on June 8, 2018, the Commission on VASAP considered the petition. No public comments were submitted to the Virginia Regulatory Town Hall. The Commission on VASAP unanimously voted to deny, in its entirety, Petition #272. The reason for the denial is detailed as follows: § 2.2-4007 of the Code of Virginia states that "any person may petition an agency to request the agency to develop a new regulation or amend an existing regulation." Petition #272 stated the petitioner's interpretation of the existing ignition interlock regulations, specifically with regard to the definition of "alcohol," and his belief that ignition interlock vendors are not complying with the law; however, the petition does not "specifically" propose any new regulation or amendment to existing regulations. Mention is made in the petition to "propose an amendment to the legislation" and to "suspend all future ignition interlock device installations in Virginia." VASAP cannot suspend the installation of the device as Virginia code requires that the devices be installed. Any legislative changes would require action of the Virginia General Assembly.

Agency Contact: Richard Foy, Field Services Specialist, Commission on the Virginia Alcohol Safety Action Program, 701 East Franklin Street, Suite 1110, Richmond, VA 23219, telephone (804) 786-5895, or email rfoy@vasap.virginia.gov.

VA.R. Doc. No. R18-31; Filed August 31, 2018, 1:26 p.m.