MTV-48-11-00009-P Accident Prevention Course Internet and Other Technologies Pilot Program

11/30/11 N.Y. St. Reg. MTV-48-11-00009-P

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 48

November 30, 2011

RULE MAKING ACTIVITIES

DEPARTMENT OF MOTOR VEHICLES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. MTV-48-11-00009-P

Accident Prevention Course Internet and Other Technologies Pilot Program

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of Part 141 of Title 15 NYCRR.

Statutory authority:

Vehicle and Traffic Law, sections 215(a), 399-1 and 399-n

Subject:

Accident Prevention Course Internet and Other Technologies Pilot Program.

Purpose:

To strengthen the Accident Prevention Course Internet and Other Technologies Pilot Program.

Text of proposed rule:

Subdivision (d) of section 141.4 is amended to read as follows:

(d) An ADM course [applicants] applicant must be an active sponsoring agency that [has] had a classroom course approved by the Commissioner pursuant to Article 12-B of the Vehicle and Traffic Law and Part 138 prior to April 16, 2005[, or, in the Commissioner's discretion, any time after such date]. The Commissioner may, in his or her discretion, approve ADM course applications that have received classroom course approval after such date and such applications must meet the criteria set forth in subdivision (g) of this section.

Section 141.4 is amended by adding a new subdivision (g) to read as follows:

(g) ADM course applicants that did not have a classroom course approved by the commissioner prior to April 16, 2005, must meet the following requirements:

(1) The course must be approved as a classroom course pursuant to Article 12-B of the Vehicle and Traffic Law and such course must have been in existence for a minimum of one year, with at least 20 classes conducted, prior to applying for ADM course approval.

(2) The course may not be delivered via the internet based course, but rather, must involve the use of one or more of the following: DVDs or CDs, pay-per-view television through a cable television provider, or other delivery method approved by the Commissioner.

(3) One or more of the following identity and participation validation methods must be used by the course provider: fingerprints, handprints, facial recognition, ear scan, iris or retina scan, in-person contact, pay per view buttons, proctored exams, or other methods that may be approved by the Commissioner.

141.14 Appendix A is amended to read as follows:

****

Participant Validation Technique Options Available To Sponsors In Designing Program

Method of Validation	Examples/Parameters of Validation Method	Points Assigned
Facial Recognition	Biometric - Hardware provided by sponsor and included in cost of course	6
Fingerprint	Biometric -- Hardware provided by sponsor and included in cost of course	6
Handprint	Biometric -- Hardware provided by sponsor and included in cost of course	6
Retina or Iris Scan	Biometric -- Hardware provided by sponsor and included in cost of course	6
Ear Scan	Biometric -- Hardware provided by sponsor and included in cost of course	6
Keystroke Analysis	Biometric - Software provided by sponsor and included in cost of the course	5
Voice Print	Biometric - Software provided by sponsor and included in cost of the course	6
Other Biometric	Prior DMV approval required	To Be Determined
Proctored Exam	Students must pass a multiple choice test with a correct score of 75% or better in order to obtain a certificate. Students will be permitted to bring in sponsor provided material into the exam.	5
In Person Contact	Identity validated at time of registration, or if set up as a computer based training at delivery agent site, delivery of training	3
Phone Contact	Prompting student to dial an 800 number to answer content or identity questions.	2
Third Party Database	Using individualized questions based on data stored in a credit bureau or government database (this is unrelated to and separate from a 3rd party monitoring organization)	2
Online/Instant Message	Prompting student to answer questions through an online chat discussion group or when online technical assistance requested.	1
Personal Questions	Questions aimed at authenticating identity.	1
Content Questions	Questions aimed at determining student participation.	1
Pay Per View Buttons	Using features of cable TV to have user interface for answering personal or content questions.	1
Email	Sending technical assistance response or user names and password for site access. If both user name and password are transmitted in the same email, password must be changed when the participant first logs on.	1
Other Techniques	Prior DMV approval required	To Be Determined

Sponsors seeking approval for their IPIRP courses must have a minimum total of seven (7) or more points, using two or more of these techniques, provided, however, that one point must be for content questions. The content questions may be asked at random points throughout the course or at the end of each chapter or unit. Such questions do not need to be in the form of a final exam. Sponsors are free to suggest alternate techniques, although the actual points assigned will be based on a determination by DMV. Depending upon the robustness of the solution offered by the sponsor, DMV reserves the right to increase or decrease the point values above to reflect the quality of a particular sponsor's solution in meeting or exceeding the validation requirements. Participant private information, as defined in the personal identification section shall be encrypted. All authentication information shall be protected; for example, it should not be stored or transmitted in clear text.

****

Biometrics

DMV shall allow a variety of Biometric Data Formats, so long as initial sample collection and periodic validation of ongoing participation against the original sample occur throughout the course at random intervals. DMV recognizes that many biometric standards are relatively new and that some available technologies in the marketplace may not strictly adhere to the standards. DMV expects the ADM pilot will allow sponsors the opportunity to explore alternate validation techniques, in lieu of requiring a proctored exam.

If a sponsor selects Biometrics as a validation technique, they will be required to capture at least 7 biometric samples over the 320 minutes of instruction. These 7 samples shall be stored for a minimum of 5 business days from course completion, and no longer than 30 calendar days from course completion, and shall be subject to DMV review. In the event DMV elects to review samples, the sponsor must provide the appropriate hardware and software in which to allow DMV to verify that validation was correct. This information shall be considered "personal information" and must be kept securely. For each sample, the sponsor must also associate the client identification number on the motorist's driver's license, date and time the sample was collected and by whom the sample was collected and/or verified by (as appropriate). Sponsors shall ensure that their biometric validation technique(s) is calibrated to be at least 90% accurate. Students who fail to have their identity verified by the biometric technique after [two (2)] five (5) attempts shall be excluded from the course.

Text of proposed rule and any required statements and analyses may be obtained from:

Monica J. Staats, NYS Department of Motor Vehicles, Legal Bureau, Room 526, 6 Empire State Plaza, Albany, NY 12228, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. Statutory authority: Section 2336 of the Insurance Law provides that the Department of Motor Vehicles will approve and monitor motor vehicle accident prevention courses for liability insurance premium reduction. Section 399-l of the Vehicle and Traffic Law (VTL) provides that the Commissioner shall promulgate regulations establishing criteria for applicants who wish to be course providers under the Accident Prevention Internet, and Other Technology Pilot Program. Section 399-n of the VTL provides that the Commissioner of Motor Vehicles is authorized to promulgate regulations in relation to the Accident Prevention Internet, and Other Technology Pilot Program. Such section provides that the regulations should insure that the internet and other technologies can validate: student identity; student participation; course time requirements; and successful course completion.

2. Legislative objectives: Article 12-B of the Vehicle and Traffic Law (VTL) establishes the motor vehicle accident prevention course that is given in the classroom setting. Article 12-C of the VTL, added by chapter 751 of the laws of 2005, authorizes the Commissioner of Motor Vehicles to "establish and implement a comprehensive pilot program to review and study internet, and other technologies as approved by the Commissioner, as a training method for the administration and completion of an approved accident prevention course for the purposes of granting point and insurance premium reduction benefits." The Legislature specifically directed that regulations address issues regarding validation of student identity, student participation throughout the course and student completion of the course. The proposed rule is in accord with this directive by amending 15 NYCRR 141 to further refine student validation criteria and student participation.

VTL section 399-l provides that:

"Applicants for participation in the pilot program established pursuant to this article shall be among those accident prevention course sponsoring agencies that have a course approved by the commissioner pursuant to article twelve-B of this title prior to the effective date of this article and which deliver such course to the public. Provided, however, the commissioner may, in his or her discretion, approve applications after such date."

Pursuant to the criteria set forth in Part 141, the Commissioner has approved 11 sponsors to participate in the pilot program. All of these sponsors offer the course via the internet. In light of the Commissioner's discretion to approve applications after the effective date (April 16, 2005), the Department will entertain applications for sponsorship of courses that offer alternatives to the classroom approach, other than via the internet. This is in accordance with the legislative objective of exploring various means and methods of offering the motor vehicle accident prevention course during the pilot program. This amendment will apply to new applicants who do not currently offer an approved classroom course.

3. Needs and benefits: The purpose of the proposed amendments to Part 141 is to strengthen and diversify the delivery of the Accident Prevention Course Internet and Other Technologies Pilot Program. This proposed regulation is necessary to place current sponsoring agencies on notice about the specific rules and guidelines governing an internet/alternative technologies accident prevention course and to place potential applicants on notice about the criteria necessary to become a new sponsoring agency.

When the regulations were written in 2005, little was known about the usage of biometric technology for online courses. The intent of biometric usage is to ensure participation by the same person for the duration of the course. When registering a keystroke identity, the student gives up to ten samples of his or her keystroke. This pattern is stored in the system and compared to the random samples requested during the course. Under the current regulations, seven random biometric samples are called validation points. And at each of these seven points, the student is allowed up to two attempts. However, pursuant to concerns expressed by sponsors and students about this validation process, the Department consulted with the Forrester Consulting Group. Forrester advised that keystroke technology should not be limited to two attempts. They produced two independent studies showing that a higher number of keystroke samples are required for the technology to work properly. Pursuant to this recommendation, we have proposed that the student will be allowed five validation attempts.

One purpose of the pilot program is to ensure that students are paying attention to the material being presented. Unlike a classroom course, where an instructor is present, students taking an internet course are most likely in the privacy of their home and can be easily distracted by family members or television while taking the course. This amendment requires that content questions be asked during the course or during a final exam, insuring that the student is continuously engaged.

Currently, there are 11 course providers, all offering an internet based course. Under VTL section 399-l, the commissioner has discretion to approve new sponsors. In order for the pilot to be truly varied, the Department will only approve new applications from sponsors who propose new medium to present the material and validation methods that substantially differ from those used by those courses that have been approved to date. This amendment will apply to new applicants who do not currently offer an approved classroom course.

The proposed regulation is also important because it informs the general public about the specifics of the internet/alternatives technologies program and gives assurances that the program is designed to prevent fraud and abuse.

4. Costs: a. To regulated parties: This is a voluntary program. No business is obligated to participate.

All businesses applying to sponsor an internet/alternative technologies course must pay a non-refundable $7,500.00 application fee to be deposited in the Accident Prevention Course Internet Technology Pilot Program Fund, as established in State Finance Law section 89-g. Vehicle and Traffic Law section 399-n(2) authorizes the Commissioner to impose a fee upon each approved sponsoring agency, which shall not exceed $8.00 for each student who completes the accident prevention course. A business approved to sponsor an internet/alternative technologies course must post a $100,000 bond or letter of credit.

There is no cost to local governments.

Cost to the public: The course fee charged customers is set by the marketplace. There is no minimum or maximum fee that must be assessed.

b. Cost to agency: There is no cost to DMV.

c. Source: DMV's Divisions of Driver Training

5. Local government mandates: This proposal does not impose any mandates upon local governments.

6. Paperwork: There are no paperwork requirements, other than the application process to become a course sponsor, which has been required since the inception of the program.

7. Duplication: This proposal does not duplicate, overlap or conflict with any relevant rule or legal requirement of the State or federal governments.

8. Alternatives: The Department canvassed all 11 PIPR sponsors about the proposed regulation. Three sponsors responded with comments.

The National Safety Council agreed with our proposal that new applicants establish themselves as classroom providers. The Council, however, disagreed with our original proposal that the applicant demonstrate classroom experience for six months, with 10 classes held. The Council recommended that the applicant have one year experience with 20 classes held. The American Safety Institute also recommended that we lengthen the period of time that the applicant offers the classroom course in order to "establish a credible history." This suggested was reinforced by the National Traffic Safety Institute. (NTSI) We agree with these suggestions because they will assist the Department in evaluating the applicant's abilities and performance. The regulation was revised accordingly.

The Council also recommended an amendment to the provision: "The Commissioner, may, in his or her discretion, require that the sponsoring agencies continue to deliver their DMV approved classroom course throughout the duration of their approval to conduct an ADM course." The Council recommended that this become a mandatory requirement, because it will assist the Department in both evaluating a sponsor and evaluating the effectiveness of the two delivery systems. Currently, the Department requires all ADM providers to give the classroom course and we will impose this requirement on any new providers. The Department, however, wishes to retain its flexibility to rescind this mandate if appropriate.

The Council objected to the amendment relative to biometrics, which provides: "Students who fail to have their identity verified by the biometric technique after [two (2)] five (5) attempts shall be excluded from the course." The Council maintains that this proposal lowers the standard for identity verification and reduces the Department's efforts to detect fraud and abuse. While the Department appreciates the Council's concerns, we believe that the amendment not only preserves our ability to detect fraud and abuse, but is justified in light of the recommendations by the non-partisan Forrester Consulting Group, which has expertise in this area.

NTSI expressed reservations about permitting new sponsors to engage in alternative delivery methods, such a pay-per-view via cable television, focusing on concerns about the ability to effectively monitor such delivery methods. NTSI also noted that pay-per-view is quite costly and could not be sustained by most providers, thus creating a competitive disadvantage for such providers. The Department is committed to sustaining an effective monitoring program for both current and prospective sponsors, regardless of the delivery system. In addition to the Department's current monitoring tools, we hope to engage a third party monitor, via the state contracting process, who will actively monitor non-classroom PIRP courses. Further, the Department trusts that the marketplace will effectively and fairly resolve issues related to competitiveness. Since this is a pilot program, the Department will closely evaluate the issues raised by NTSI, as well as the other sponsors, at the conclusion of the pilot.

NTSI expressed support for the amendments regarding identity and validation methods.

The Department also requested comments from Traffic Safety Consultants (TSC), which has expressed interest in becoming a sponsor. TSC did not oppose the proposal, but rather, requested clarification about the Department's approval process and the ADM program generally, and whether the Department would accept a certain product as part of an alternative methodology.

The Department did not consider a no action alternative because the benefits contained in this rulemaking outweigh such an alternative.

9. Federal standards: The proposal does not exceed any minimum standards of the federal government for the same or similar subject areas.

10. Compliance schedule: Compliance shall commence upon adoption of this regulation, provided however, that the amendments to Appendix A shall take effect 90 days after such adoption.

Regulatory Flexibility Analysis

1. Effect of rule: There are no local governments affected by this rule. The Department estimates that 6 of the 13 sponsors are small businesses.

2. Compliance requirements: Participation in the pilot program is voluntary. Those choosing to apply will be required to have a classroom course approved, with such classroom course in existence for one year, with at least 20 classes offered, prior to authorization to offer an alternate delivery method course. The primary paperwork requirement involves the initial application that all providers must complete to become an approved provider.

3. Professional services: Sponsors may choose to contract with firms that provide services for technological solutions for verifying student identity participation as part of the overall development of their ADM course, especially in the development and initial implementation of the course.

4. Compliance costs: This is a voluntary program. No business is obligated to participate. All businesses applying to sponsor an internet/alternative technologies course must pay a non-refundable $7,500.00 application fee to be deposited in the Accident Prevention Course Internet Technology Pilot Program Fund, as established in State Finance Law section 89-g. Vehicle and Traffic Law section 399-n(2) authorizes the Commissioner to impose a fee upon each approved sponsoring agency, which shall not exceed $8.00 for each student who completes the accident prevention course. A business approved to sponsor an internet/alternative technologies course must post a $100,000 bond or letter of credit.

5. Economic and technological feasibility: The Department anticipates that the current sponsoring agencies have the technological means to easily comply with the proposed amendments.

6. Minimizing adverse impact: The Department canvassed all 11 PIPR sponsors about the proposed regulation. Three sponsors responded with comments.

The National Safety Council agreed with our proposal that new applicants establish themselves as classroom providers. The Council, however, disagreed with our original proposal that the applicant demonstrate classroom experience for six months, with 10 classes held. The Council recommended that the applicant have one year experience with 20 classes held. The American Safety Institute also recommended that we lengthen the period of time that the applicant offers the classroom course in order to "establish a credible history." This suggested was reinforced by the National Traffic Safety Institute. (NTSI) We agree with these suggestions because they will assist the Department in evaluating the applicant's abilities and performance. The regulation was revised accordingly.

The Council also recommended an amendment to the provision: "The Commissioner, may, in his or her discretion, require that the sponsoring agencies continue to deliver their DMV approved classroom course throughout the duration of their approval to conduct an ADM course." The Council recommended that this become a mandatory requirement, because it will assist the Department in both evaluating a sponsor and evaluating the effectiveness of the two delivery systems. Currently, the Department requires all ADM providers to give the classroom course and we will impose this requirement on any new providers. The Department, however, wishes to retain its flexibility to rescind this mandate if appropriate.

The Council objected to the amendment relative to biometrics, which provides:

"Students who fail to have their identity verified by the biometric technique after [two (2)] five (5) attempts shall be excluded from the course." The Council maintains that this proposal lowers the standard for identity verification and reduces the Department's efforts to detect fraud and abuse. While the Department appreciates the Council's concerns, we believe that the amendment not only preserves our ability to detect fraud and abuse, but is justified in light of the recommendations by the non-partisan Forrester Consulting Group, which has expertise in this area.

NTSI expressed reservations about permitting new sponsors to engage in alternative delivery methods, such a pay-per-view via cable television, focusing on concerns about the ability to effectively monitor such delivery methods. NTSI also noted that pay-per-view is quite costly and could not be sustained by most providers, thus creating a competitive disadvantage for such providers. The Department is committed to sustaining an effective monitoring program for both current and prospective sponsors, regardless of the delivery system. In addition to the Department's current monitoring tools, we hope to engage a third party monitor, via the state contracting process, who will actively monitor non-classroom PIRP courses. Further, the Department trusts that the marketplace will effectively and fairly resolve issues related to competitiveness. Since this is a pilot program, the Department will closely evaluate the issues raised by NTSI, as well as the other sponsors, at the conclusion of the pilot.

NTSI expressed support for the amendments regarding identity and validation methods.

The Department also requested comments from Traffic Safety Consultants (TSC), which has expressed interest in becoming a sponsor. TSC did not oppose the proposal, but rather, requested clarification about the Department's approval process and the ADM program generally, and whether the Department would accept a certain product as part of an alternative methodology.

7. Small business and local government participation: The proposed rule does not affect local governments. See #6 for small business participation.

Rural Area Flexibility Analysis

A Rural Area Flexibility Analysis is not submitted with this proposal because it will not have an adverse or disproportionate impact on rural areas of the State.

Job Impact Statement

A Job Impact Statement is not submitted with this proposal because it will not have an adverse impact on job development or job creation in the State.