Title of Regulation: 6VAC40-20. Regulations for Breath Alcohol Testing (amending 6VAC40-20-140, 6VAC40-20-160).

Statutory Authority: § 9.1-1110 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 2, 2014.

Effective Date: January 17, 2014.

Agency Contact: Stephanie Merritt, Department Counsel, Department of Forensic Science, 700 North Fifth Street, Richmond, VA 23219, telephone (804) 786-2281, FAX (804) 786-6857, or email stephanie.merritt@dfs.virginia.gov.

Basis: Section 18.2-267 B of the Code of Virginia requires the Department of Forensic Science to determine the proper method and equipment to be used in analyzing breath samples taken pursuant to § 18.2-267 and to advise the respective police and sheriff's departments of the same. Additionally, § 18.2-268.9 of the Code of Virginia requires the department to establish a training program for all individuals who are to administer the breath tests and, upon a person's successful completion of the training program, the department may license him to conduct breath test analyses. This regulation describes the process for approval of breath test devices, general methods of conducting breath tests, training and licensing procedures for operators, and the use of preliminary breath test devices. Section 9.1-1110 A 1 of the Code of Virginia authorizes the Forensic Science Board to adopt regulations, pursuant to the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), for the administration of Chapter 11 (§ 9.1-1100 et seq.) of Title 9.1 of the Code of Virginia or §§ 18.2-268.6, 18.2-268.9, 19.2-188.1, and 19.2-310.5 of the Code of Virginia and for any provisions of the Code of Virginia as they relate to the responsibilities of the Department of Forensic Science.

Purpose: The regulations, which describe the process for approval of breath test devices, general methods of conducting breath tests, training and licensing procedures for operators, and the use of preliminary breath test devices, facilitate the protection of the health and safety of the public from the perils of individuals who drive while under the influence of alcohol or other drugs.

Rationale for Using Fast-Track Process: The amendments involving a mail delivery method, striking language regarding a checklist that is no longer applicable to the instruments used the Commonwealth, and updating information about the availability of a form relevant to the current breath instrumentation are minor and do not change any existing, substantive procedures. In September 2012, the department conducted a periodic review of this regulation and received no public comment. Likewise, the Forensic Science Board discussed and voted to adopt these amendments at its January 2013 public meeting, and no member of the public offered a comment. Given these facts, the department does not expect the amendments to be controversial.

Substance: The amendments to 6VAC40-20 make two minor changes to the existing regulations. First, the amendments add the term "or equivalent delivery method" to 6VAC40-20-140. This amendment allows the Department of Forensic Science to deliver notice of the revocation of certain licenses or certificates via certified U.S.P.S. mail as well as other equivalent delivery methods such as signature required Federal Express or UPS delivery. The use of the private carriers for mail delivery is, at times, more cost effective than U.S.P.S. mail. This change will allow the department to utilize the least expensive mail delivery option. Second, the amendments to 6VAC40-20-160 strike language about the preventive maintenance checklist, which was applicable to a breath instrument no longer used in the Commonwealth, and replaces this language with information about the availability of breath test worksheets relevant to the instruments currently in use.

Issues: The amendments are advantageous to the Department of Forensic Science and the Commonwealth to the extent that multiple mail delivery options allow the department to choose the most cost-effective delivery method for certain mailings. Furthermore, the amendments clarify the current availability of the breath test worksheet to law-enforcement agencies and eliminate reference to a worksheet that is no longer in use. The department expects these changes will enhance its user agencies' understanding of the regulations. There is no other anticipated public impact and no known disadvantage.

Small Business Impact Report of Findings: This regulatory action serves as the report of findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Department of Forensic Science (DFS) proposes to amend its Regulations for Breath Alcohol Testing to: 1) allow DFS to deliver notice of license or certificate revocation to breath instrument operators or instructors by certified USPS mail or by equivalent signature required UPS or Federal Express, 2) remove obsolete language that refers to DFS providing preventative maintenance checklists and requires that a copy of this checklist be filled out for every breath test devise assigned to affected agencies and 3) add language that informs agencies that breath test worksheets relevant to instruments currently in use are provided to agencies but may also be accessed and printed from DFS's website.

Result of Analysis. Benefits likely outweigh costs for these proposed regulatory changes.

Estimated Economic Impact. Current regulations require that DFS deliver notice of revocation to breath test instructor licensees and breath test operators certificate holders by certified USPS mail. In other areas of practice, however, DFS has found that sending mail by signature required UPS or Federal Express mail tends to be less expensive and also offers the benefit of nearly instant verification that mail has been delivered. Because of this, DFS now proposes to amend these regulations so that mail service that is equivalent to certified mail (in that it requires the recipient to sign for it) may be used to mail notice of revocation to individuals who are losing their department issued licenses or certifications. This change will benefit DFS, and taxpayers who fund DFS, because DFS will have the ability to choose the least costly equivalent mailing service rather than being constrained to only using certified USPS mail. No entity is likely to incur costs on account of this regulatory change.

DFS also proposes to remove language from these regulations that references testing of equipment that is no longer in use in the Commonwealth and to add language that informs localities of breath test worksheets (in use with newer breath test equipment) that will be distributed by DFS and that are also available for download on the departments website. No entity is likely to incur costs on account of these changes. Licensees and certificate holders, as well as other interested parties will likely benefit from changes that remove obsolete language and clarify current practice.

Businesses and Entities Affected. DFS reports that there are 5,000 breath instrument operators and 35 breath instrument instructors all of whom will be affected by these regulatory changes. DFS additionally reports that there are 168 breath instruments that are operated in 165 localities throughout the Commonwealth.

Localities Particularly Affected. No localities will be particularly affected by these proposed regulations.

Projected Impact on Employment. This proposed regulatory action is unlikely to have any effect on employment in the Commonwealth.

Effects on the Use and Value of Private Property. These proposed regulatory changes are unlikely to affect the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. No small business is likely to incur any additional expense on account of these regulatory changes.

Small Businesses: Alternative Method that Minimizes Adverse Impact. No small business is likely to incur any additional expense on account of these regulatory changes.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, a determination of the public benefit, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The Department of Forensic Science concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The amendments (i) allow the Department of Forensic Science to deliver notice of license or certificate revocation to breath instrument operators or instructors by certified USPS mail or by equivalent signature-required delivery service, (ii) remove obsolete language that (a) refers to the department providing preventative maintenance checklists and (b) requires that a copy of this checklist be filled out for every breath test device assigned to affected agencies, and (iii) add language that informs agencies that breath test worksheets relevant to instruments currently in use are provided to agencies but may also be accessed and printed from the department's website.

6VAC40-20-140. Revocation.

Any revocation of a license or instructor certificate shall be by notice sent by registered or certified mail or equivalent delivery method from the department to the licensee or instructor.

6VAC40-20-160. Checklist.

A preventive maintenance checklist, if applicable, shall be provided by the department and completed at least once each month for each breath test device assigned to an agency. A copy of this preventive maintenance checklist shall be submitted to the department to be kept on file for at least three years. Breath test worksheets are provided to an agency by the department but may also be accessed and printed from the department's website.

FORMS (6VAC40-20)

Intoxilyzer 5000 Monthly Preventive Maintenance/Simulator Solution Change Checklist, DFS-70-036A (rev. 7/05).

Operational Checklist for Intoxilyzer 5000, DFS-70-037 (rev. 8/97).

EC/IR II Breath Test Worksheet, DFS Document 250-F115 (eff. 10/08)