[Federal Register Volume 63, Number 171 (Thursday, September 3, 1998)]
[Rules and Regulations]
[Pages 46881-46887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23748]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
Federal Highway Administration
23 CFR Part 1225
[Docket No. NHTSA-98-4394]
RIN 2127-AH39
Operation of Motor Vehicles by Intoxicated Persons
AGENCY: National Highway Traffic Safety Administration (NHTSA) and
Federal Highway Administration (FHWA), Department of Transportation
(DOT).
ACTION: Interim final rule; request for comments.
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SUMMARY: This interim final rule implements a new program established
by the Transportation Equity Act for the 21st Century (TEA 21), under
which States can qualify for incentive grant funds if they enact and
enforce a law that provides that any person with a blood alcohol
concentration of 0.08 percent or greater while operating a motor
vehicle in the State shall be deemed to have committed a per se offense
of driving while intoxicated or an equivalent per se offense. This
interim final rule solicits public comments.
DATES: This interim final rule becomes effective on September 3, 1998.
Comments must be received by October 19, 1998.
ADDRESSES: Written comments should refer to the docket number of this
notice and be submitted (preferably two copies) to: Docket Management,
Room PL-401, National Highway Traffic Safety Administration, Nassif
Building, 400 Seventh Street, S.W., Washington, D.C. 20590. (Docket
hours are Monday-Friday, 10 a.m. to 5 p.m., excluding Federal
holidays.)
FOR FURTHER INFORMATION CONTACT: In NHTSA: Ms. Marlene Markison, Office
of State and Community Services, NSC-01, telephone (202) 366-2121; or
Ms. Heidi L. Coleman, Office of Chief Counsel, NCC-30, telephone (202)
366-1834.
In FHWA: Byron Dover, Office of Highway Safety, HHS-10, telephone
(202) 366-2161; or Mr. Raymond W. Cuprill, HCC-20, telephone (202) 366-
0834.
SUPPLEMENTARY INFORMATION: The Transportation Equity Act for the 21st
Century (TEA 21), Pub. L. 105-178, was signed into law on June 9, 1998.
Section 1404 of the Act established a new incentive grant program under
Section 163 of Title 23, United States Code (Section 163). Under this
new program, States may qualify for incentive grant funds by enacting
and enforcing laws that provide that ``any person with a blood alcohol
concentration (BAC) of 0.08 percent or greater while operating a motor
vehicle in the State shall be deemed to have committed a per se offense
of driving while intoxicated (or an equivalent per se offense).''
This new program was put into place to address the issue of
impaired driving, which continues to be a serious national problem with
tragic consequences. The agencies believe that 0.08 BAC laws will have
a significant impact on reducing this problem.
Background
The Problem of Impaired Driving
Injuries caused by motor vehicle traffic crashes are a major health
care problem in America and are the leading cause of death for people
aged 6 to 27. Each year, the injuries caused by traffic crashes in the
United States claim approximately 42,000 lives and cost
[[Page 46882]]
Americans an estimated $150 billion, including $19 billion in medical
and emergency expenses, $42 billion in lost productivity, $52 billion
in property damage, and $37 billion in other crash related costs.
In 1996, alcohol was involved in approximately 41 percent of fatal
traffic crashes. Every 30 minutes, someone in this country dies in an
alcohol-related crash. In 1994, alcohol-involved crashes resulted in
$45 billion in economic costs, accounting for 30 percent of all crash
costs. Impaired driving is the most frequently committed violent crime
in America.
Impaired Driving Laws
States have enacted a number of different types of laws in their
efforts to fight the battle against impaired driving. For example,
forty-eight States and the District of Columbia have enacted ``illegal
per se'' laws. Two States and Puerto Rico have not. An illegal per se
law makes it illegal, in and of itself, to drive with an alcohol
concentration measured at or above the established legal limit.
In 32 of the States with illegal per se laws and in the District of
Columbia, the legal limit is 0.10 percent blood alcohol concentration
(BAC). Sixteen States have enacted laws that establish 0.08 BAC as the
legal limit. (Fifteen of these laws are currently in effect. One is due
to become effective on January 1, 1999.)
The Effectiveness of 0.08 BAC Laws
A number of studies have been conducted to determine the
effectiveness of 0.08 BAC laws.
The effect of California's 0.08 law was analyzed, for example, in a
1991 NHTSA study. The agency found that 81 percent of the driving
population knew that the BAC limit had become stricter (as the result
of a successful public education effort). The State experienced a 12
percent reduction in alcohol-related fatalities, although some of the
reduction may have resulted from a new administrative license
revocation law that was enacted during the same year that the BAC
standard was lowered. The State also experienced an increase in the
number of impaired driving arrests.
A multi-state analysis of the effect of lowering BAC levels to 0.08
was conducted by Boston University's School of Public Health. The
results of that study were reported in the September 1996 issue of the
American Journal of Public Health, a peer-reviewed journal. The Boston
University study compared the first five states to lower their BAC
limit to 0.08 (California, Maine, Oregon, Utah and Vermont) with five
nearby states that retained the 0.10 BAC limit. The results of this
study suggest that 0.08 BAC laws, particularly in combination with
administrative license revocation, reduce the proportion of fatal
crashes involving drivers and fatally injured drivers at blood alcohol
levels of 0.08 percent and higher by 16 percent and those at a BAC of
0.15 percent and greater by 18 percent.
The immediate significance of these findings is that, the 0.08 BAC
laws, particularly in combination with administrative license
revocation, not only reduced the overall incidence of alcohol
fatalities, but they also reduced fatalities at the higher BAC levels.
The effect on the number of extremely impaired drivers was even greater
than the overall effect.
The study concluded that if all States lowered their BAC limits to
0.08, alcohol-related highway deaths would decrease nationwide by 500-
600 per year, which would result in an economic cost savings of
approximately $1.5 billion.
In a 1995 NHTSA analysis of the same five States studied by Boston
University, the agency examined six different measures of driver
alcohol involvement in fatal crashes and compared the time period
before the 0.08 law was passed with the time period after passage of
the law for each State. A total of thirty comparisons of the level of
driver alcohol involvement were made. Nine of the thirty comparisons
(in four of the five States) showed statistically significant
decreases. An additional 16 comparisons, while not statistically
significant, also showed decreases. None of the comparisons for the
rest of the nation (States at 0.10 BAC) showed changes that were
statistically significant.
Other studies published on the effects of enacting 0.08 BAC laws,
which use various different measures, have all shown significant
decreases in alcohol-related fatalities. NHTSA surveys all show that
most people would not drive after consuming two or three drinks in an
hour (the amount of alcohol an average 120-pound woman would have to
drink on an empty stomach to reach 0.08 BAC; an average 170-pound man
would have to consume 4-5 drinks in an hour on an empty stomach to
reach that BAC level). In addition, three recent scientific telephone
polls indicate that two out of every three Americans think the BAC
standard should be lowered to 0.08.
Presidential Support for a National Standard at 0.08 BAC
President Clinton strongly supports the enactment of 0.08 BAC laws
by the States. In fact, on March 3, 1998, the President addressed the
Nation about his interest in promoting a national illegal per se limit
of 0.08 BAC across the country, including on Federal property. During
his address, the President called on Congress to pass impaired driving
legislation that would establish a national 0.08 BAC per se standard.
On March 4, 1998, the United States Senate passed ``The Safe and
Sober Streets Act of 1997,'' which had been introduced by Senator Frank
Lautenberg (D-NJ) and Senator Mike DeWine (R-OH). Similar legislation
was introduced in the U.S. House of Representatives by Rep. Nita Lowey
(D-NY).
The Safe and Sober Streets Act would have required the withholding
of certain Federal-aid highway funds from States that do not enact and
enforce 0.08 BAC per se laws. To avoid the withholding of funds, States
would have been required to enact and enforce 0.08 BAC per se laws by
October 1, 2001. This legislation, however, was not enacted into law.
Instead, Congress passed an incentive grant program to encourage
State enactment of 0.08 BAC laws. This program was included in TEA 21
(H.R. 2400). On June 9, 1998, President Clinton signed the legislation
and remarked, in his signing statement:
Today I am pleased to sign into law H.R. 2400, the
``Transportation Equity Act for the 21st Century.'' This
comprehensive infrastructure measure for our surface transportation
programs--highway, highway safety, and transit--retains the core
programs and builds on the initiatives established in the landmark
Intermodal Surface Transportation Efficiency Act of 1991.
* * * * *
I am deeply disappointed, however, that H.R. 2400 fails to
include language that would help to establish 0.08 percent [BAC] as
the standard for drunk driving in each of the 50 States. The
experience of States that have adopted the 0.08 blood alcohol level
shows that this stringent measure against drunk driving has the
potential, when applied nationwide, to save hundreds of lives each
year. Applying 0.08 nationwide is an important cornerstone of our
safety efforts. My Administration will continue to fight for it. In
the meantime, H.R. 2400 does establish a new $500 million incentive
program encouraging the States to adopt tough 0.08 BAC laws.
Adoption of 0.08 BAC Law
Section 163 specifically provides that the Secretary of
Transportation shall make a grant to any State that has enacted and is
enforcing a law that provides that any person with a blood alcohol
concentration of 0.08 percent or greater while operating a motor
vehicle in the State shall be deemed to have
[[Page 46883]]
committed a per se offense of driving while intoxicated or an
equivalent per se offense.
Consistent with other grant programs that are administered by the
agencies, a State's law must have been both passed and made effective
to permit a State to qualify for funding based on that law. In
addition, the State must have begun to implement the law.
Compliance Criteria
To qualify for funding under this program, Section 163 provides
that a State must enact and enforce:
a law that provides that any person with a blood alcohol
concentration of 0.08 percent or greater while operating a motor
vehicle in the State shall be deemed to have committed a per se
offense of driving while intoxicated or an equivalent per se
offense.
Section 163 does not define any of these terms, and it does not
contain many details about what conforming State laws must provide. For
example, it does not specify the penalties that must be imposed on
offenders who violate 0.08 BAC per se laws. Since Section 163 does not
prescribe the penalties that must be imposed on offenders who violate
0.08 BAC laws, the agencies have not specified any minimum penalties in
the implementing regulation.
The agencies believe that, while Congress intended to encourage all
States to enact and enforce effective 0.08 BAC laws, it also intended
to provide States with sufficient flexibility to develop laws that suit
their particular conditions. Accordingly, the agencies' implementing
regulation prescribes only a limited number of basic elements that
State laws must meet to qualify for these incentive grant funds.
This interim final rule defines those basic elements. The elements
are described below:
1. Any Person
To qualify for funds under this program, a State must enact and
enforce a law that establishes a BAC limit of 0.08 or greater that
applies to all persons. The law can provide for no exceptions.
2. Blood Alcohol Concentration (BAC) of 0.08 Percent
To qualify for funds under this program, a State must set a level
of no more than 0.08 percent as the legal limit for blood alcohol
concentration, thereby making it an offense for any person to have a
BAC of 0.08 or greater while operating a motor vehicle. If a State were
to enact a law that set a lower percentage (such as 0.07 percent) as
the legal limit, such a law would also conform to the Federal
requirement, since all persons with a BAC of 0.08 or greater would be
covered.
3. Per Se Law
To qualify for funds under this program, a State must consider
persons who have a BAC of 0.08 percent or greater while operating a
motor vehicle in the State to have committed a per se offense of
driving while intoxicated.
In other words, States must establish a 0.08 ``per se'' law, that
makes driving with a BAC of 0.08 percent or above, in and of itself, an
offense.
The agencies are aware of two States (Massachusetts and South
Carolina) that have laws that make it unlawful for a person to drive
while under the influence of alcohol, but do not establish a BAC limit
at or above which it is illegal per se to drive. These laws provide
that a BAC of 0.08 percent or above creates an ``inference'' or a
``permissible inference'' that the person committed the offense.
However, since these laws do not make the operation of a motor vehicle
with a BAC of 0.08 a ``per se'' offense, they do not conform to the
Federal requirement.
In addition, some States have ``per se'' laws at the 0.10 BAC
level, and provide that a lower BAC level, such as 0.08 or even lower,
creates a presumption or can be used as prima facie evidence of a
violation of an impaired driving offense. Again, since these States do
not have laws that make the operation of a motor vehicle with a BAC of
0.08 a ``per se'' offense, they do not conform to the Federal
requirement.
4. Primary Enforcement
To qualify for funds under this program, a State must enact and
enforce a 0.08 BAC law that provides for primary enforcement.
Under a primary enforcement law, law enforcement officials have the
authority to enforce the law without, for example, the need to show
that they had probable cause or had cited the offender for a violation
of another offense. Any State with a law that provides for secondary
enforcement of its 0.08 BAC provision will not qualify for funds under
this program.
5. Both Criminal and ALR Laws
To qualify for funds under this program, a State must establish a
0.08 BAC per se level under its criminal code. In addition, if the
State has an administrative license revocation or suspension (ALR) law,
the State must establish an illegal 0.08 BAC per se level under its ALR
law, as well.
For example, if a State were to include a 0.08 BAC per se provision
in its ALR law, but retained a higher BAC (such as 0.10) or a prima
facie (as opposed to a per se) provision in its criminal code, the
State would not qualify for funding under this program. If a State were
to include a conforming 0.08 BAC per se provision in its criminal code,
and the State did not have an ALR law, the State could qualify for
Federal funding.
6. Standard Driving While Intoxicated Offense
To qualify for funds under this program, the State's 0.08 BAC per
se law must be deemed to be or equivalent to the State's standard
driving while intoxicated offense. As explained above, 48 States and
the District of Columbia have ``illegal per se'' laws, under which it
is unlawful, in and of itself, for a person to operate a motor vehicle
with a BAC at or above a specified level. All 50 States, plus the
District of Columbia and Puerto Rico (each of the jurisdictions that
are considered States and therefore are potentially eligible for
funding under the Section 163 program) have non-BAC per se offenses,
under which it is unlawful for a person to operate a motor vehicle
while intoxicated. This non-BAC per se offense is the standard driving
while intoxicated offense in each State.
The agencies recognize that some States do not use the term
``intoxicated'' or ``driving while intoxicated'' in their laws. Some
States use other terms, such as ``driving under the influence of
alcohol'' to describe this offense. Section 163 does not require that a
single term be used. It requires only that operating a motor vehicle
with a BAC of 0.08 be deemed to be a per se offense and (regardless of
the nomenclature used) that it be deemed to be or equivalent to the
``standard'' driving while intoxicated offense in the State.
Most States provide for a single driving while intoxicated offense,
but some States have established more than one offense that relates to
impaired or intoxicated driving. The most serious offense generally
will be the State's ``standard'' driving while intoxicated offense
(although it might be called by another name, such as ``driving under
the influence''). The State may have a less-serious offense, which
generally will be a ``lesser-included'' offense of the standard driving
while intoxicated offense. (This ``less-serious'' offense is often
referred to as ``driving while impaired.'')
The State of New York, for example, has established a two-tiered
system. ``Driving while intoxicated'' is the ``standard'' offense in
New York. Persons violate the offense by operating
[[Page 46884]]
a vehicle at a BAC of 0.10. They also violate the offense through a
non-BAC per se provision, by operating a vehicle ``while in an
intoxicated condition.'' A person's BAC level is just one piece of
evidence that would be used to prove a violation under this provision.
``Driving while ability impaired'' is the ``less-serious'' offense
in New York. ``Driving while ability impaired'' is not a BAC per se
offense in New York. Persons violate that offense by operating a
vehicle ``while the person's ability to operate such motor vehicle is
impaired by the consumption of alcohol.'' Evidence that a person
registered a BAC of more than 0.05 but not more than 0.07 is considered
relevant evidence, but is not given prima facie effect, in determining
whether the person's ability to operate a motor vehicle was impaired.
Evidence that a person registered a BAC of more than 0.07 but less than
0.10 is considered prima facie evidence that the person's ability to
operate a motor vehicle was impaired. Operating at these BAC levels,
however, is not a per se offense.
Under the agencies' regulation, New York does not presently qualify
for Section 163 funding based on its ``driving while intoxicated'' law,
because a person does not violate the law unless their BAC is 0.10 or
greater. The State's ``driving while ability impaired'' law does not
enable the State to qualify for two reasons. First, it is not a per se
law, and second, it is not the ``standard'' driving while intoxicated
offense in the State. To qualify for Section 163 funding, the State
would be required to amend its ``driving while intoxicated'' law to
cover persons operating a motor vehicle with a BAC of 0.08.
The ``standard'' driving while intoxicated offense, however, will
not necessarily be the most serious drinking and driving offense in the
State. The agencies recognize, for example, that some States have
enacted additional illegal per se offenses that apply additional or
enhanced sanctions to offenders with ``high BAC's'' (in excess of 0.10,
such as at 0.17 or 0.20). In fact, NHTSA's Section 410 program (23
U.S.C. Section 410, as amended by TEA 21), encourages States to enact
such laws. These ``high BAC'' laws will not be considered the
``standard'' driving while intoxicated offense of a State for the
purpose of the Section 163 program.
In States with multiple drinking and driving provisions, the agency
will consider a number of factors to determine whether the State's 0.08
BAC per se law has been deemed to be or is equivalent to the standard
driving while intoxicated offense in the State. These factors will
include the treatment of these offenses, their relation to other
offenses in the State and the sanctions and other consequences that
result when persons violate these offenses.
Terms Governing the Incentive Grant Funds
A total of $500 million has been authorized for the section 163
program over a period of six years, beginning in FY 1998. Specifically,
TEA 21 authorized $55 million for fiscal year 1998, $65 million for FY
99, $80 million for FY 2000, $90 million for FY 2001, $100 million for
FY 2002 and $110 million for FY 2003.
Available funds will be apportioned in each fiscal year to the
States that qualify for grants, according to the section 402 formula,
which is apportioned 75 percent based on the State's population and 25
percent based on the number of public road miles in the State.
Funds received by States under the section 163 program may be used
for any project eligible for assistance under Title 23 of the United
States Code, which includes highway construction as well as highway
safety projects or programs. Since States will be receiving section 163
funds on the basis on their 0.08 BAC per se laws, a highway safety
initiative, the agencies strongly encourage the States to consider
eligible highway safety projects and programs when they are deciding
how they will spend these funds.
Since section 163 provides that the Federal share of the cost of a
project funded under this program shall be 100 percent, there is no
State matching requirement for these funds. In addition, the funds
authorized by section 163 shall remain available until expended.
Demonstrating Compliance
Section 163 provides that grants will be awarded to complying
States beginning in fiscal year 1998. To demonstrate compliance with
the provisions of both the statutory and regulatory requirements, each
State must submit a certification in each year that it wishes to
receive a grant.
To receive its first grant under this program, a State must submit
a certification by an appropriate State official that the State has
enacted and is enforcing a 0.08 BAC per se law that conforms to 23
U.S.C. Sec. 163 and Sec. 1225.5 of this Part and that the funds
received by the State under this program will be used for projects
eligible for assistance under Title 23 of the United States Code, which
include highway construction as well as highway safety projects and
programs.
To receive subsequent-year grants under this program, a State must
submit a certification by an appropriate State official, stating either
that the State has amended or has not changed its 0.08 BAC per se law
and that the State is enforcing the law. The certification must also
state that the funds received by the State under this program will be
used for projects eligible for assistance under Title 23 of the United
States Code, which include highway construction as well as highway
safety projects and programs.
First and subsequent-year certifications must include citations to
the State's conforming 0.08 BAC per se law. These citations must
include all applicable provisions of the State's criminal code and, if
the State has an ALR law, all applicable provisions of that law, as
well.
To be eligible for grant funds in FY 1998, States must submit their
certifications no later than September 4, 1998.
To be eligible for grant funds in a subsequent fiscal year, States
must submit their certifications no later than July 1 of that fiscal
year. For example, to be eligible for grant funds in FY 1999, States
must submit their certifications no later than July 1, 1999.
The agencies strongly encourage States to submit their
certifications in advance of the regulatory deadlines. The agencies
also strongly encourage States that are considering 0.08 BAC per se
legislation to request preliminary reviews of such legislation from the
agencies while the legislation is still pending. The agencies would
determine in these preliminary reviews whether the legislation, if
enacted, would conform to the new Federal requirements, thereby
avoiding a situation in which a State unintentionally enacts non-
conforming 0.08 BAC legislation and then is unable to qualify for grant
funds. Requests should be submitted through NHTSA's Regional
Administrators, who will refer the requests to appropriate NHTSA and
FHWA offices for review.
Interim Final Rule
This document is published as an interim final rule. Accordingly,
the new regulations in Part 1225 are fully in effect upon the date of
the document's publication. No further regulatory action by the
agencies is necessary to make these regulations effective.
These regulations have been published as an interim final rule
because insufficient time was available to provide for prior notice and
opportunity for comment. TEA 21 was signed into law on June 9, 1998.
The Act
[[Page 46885]]
authorizes that grant funds be apportioned and obligated, beginning in
fiscal year 1998, which ends on September 30, 1998. To ensure the award
in FY 98 of these grant funds to eligible States, a number of steps
must be taken in a period of less than 90 days. The agencies had to
promulgate and make effective regulations, States must apply for the
funds, the agencies must process those applications and apportion the
incentive grant funds and the States must obligate the funds. These
circumstances make it necessary to implement the statutory requirements
by an interim final rule, rather than by the slower process of notice
and comment rulemaking.
In the agencies' view, the States will not be impeded by the use of
an interim final rule. The procedures that States must follow to apply
for grant funds under this new program are similar to procedures that
States have followed in other grant programs administered by NHTSA and/
or the FHWA. These procedures were established by rulemaking and were
subject to prior notice and the opportunity for comment.
Moreover, the criteria that States must meet to qualify for these
funds are derived from the Federal statute and are similar to the
criteria that the agencies established in their rulemaking action that
implemented 23 U.S.C. Section 161, which established the zero tolerance
requirement, under which persons under the age of 21 who operate a
vehicle at a BAC of 0.02 or greater are deemed to be driving while
intoxicated. The agencies' zero tolerance regulations were subject to
prior notice and the opportunity for comment.
For these reasons, the agencies believe that there is good cause
for finding that providing notice and comment in connection with this
rulemaking action is impracticable, unnecessary, and contrary to the
public interest. The agencies also find, for these reasons, that notice
and an opportunity for comment are not required under the Department's
regulatory policies and procedures and that this rule can be made
effective upon publication, pursuant to 5 U.S.C. 808 (P.L. 104-121)
(the Congressional review provisions of the Small Business Regulatory
Enforcement Fairness Act).
The agencies request written comments on these new regulations. All
comments submitted in response to this document will be considered by
the agencies. Following the close of the comment period, the agencies
will publish a document in the Federal Register responding to the
comments and, if appropriate, will make revisions to the provisions of
Part 1225.
Written Comments
Interested persons are invited to comment on this interim final
rule. It is requested, but not required, that two copies be submitted.
All comments must be limited to 15 pages in length. Necessary
attachments may be appended to those submissions without regard to the
15 page limit. (49 CFR 553.21.) This limitation is intended to
encourage commenters to detail their primary arguments in a concise
fashion.
Written comments to the public docket must be received by November
2, 1998. To expedite the submission of comments, simultaneous with the
issuance of this notice, NHTSA and FHWA will mail copies to all
Governors' Representatives for Highway Safety and State Departments of
Transportation.
All comments received before the close of business on the comment
closing date will be considered and will be available for examination
in the docket at the above address before and after that date. To the
extent possible, comments filed after the closing date will also be
considered. However, the rulemaking action may proceed at any time
after that date. The agencies will continue to file relevant material
in the docket as it becomes available after the closing date, and it is
recommended that interested persons continue to examine the docket for
new material.
Those persons who wish to be notified upon receipt of their
comments in the docket should enclose, in the envelope with their
comments, a self-addressed stamped postcard. Upon receiving the
comments, the docket supervisor will return the postcard by mail.
Copies of all comments will be placed in Docket 98-4394 in Docket
Management, Room PL-401, Nassif Building, 400 Seventh Street, S.W.,
Washington, D.C. 20590.
Regulatory Analyses and Notices
Executive Order 12778 (Civil Justice Reform)
This interim final rule will not have any preemptive or retroactive
effect. The enabling legislation does not establish a procedure for
judicial review of final rules promulgated under its provisions. There
is no requirement that individuals submit a petition for
reconsideration or other administrative proceedings before they may
file suit in court.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The agencies have determined that this action is a significant
regulatory action within the meaning of Executive Order 12866 and is
significant within the meaning of Department of Transportation
Regulatory Policies and Procedures. This determination is based on a
finding that the rule is likely to have an annual effect on the economy
of $100 million or more in FY's 2002 and 2003. A sum of $100 million is
authorized for this program in FY 2002 and $110 million is authorized
in FY 2003. It is likely that these sums will be awarded to qualifying
States under the section 163 program in those fiscal years.
Accordingly, an economic assessment has been prepared.
The economic assessment concludes that the costs to the States of
obtaining the funding under the Section 163 program, which include the
administrative costs of submitting a copy of the law and a
certification that the State is enforcing the law, are minimal. In
addition, it finds that the costs to States to enact and publicize new
0.08 BAC per se laws will not be significant, and the costs to enforce
these laws need not be different than those incurred by States to
enforce their current impaired driving laws.
However, the economic assessment notes that it is expected that at
least some States will increase enforcement efforts when their new laws
become effective, and arrests and prosecutions are likely to increase
for drivers with a BAC at 0.08 and above. Since many States have self-
sufficient programs supported by fines for the post-conviction phase of
their programs, the economic assessment concludes that any additional
activity during this phase of their programs, will not result in
additional costs to the States.
While it is difficult to isolate the effects that a national 0.08
BAC per se standard would have, the economic assessment indicates that
a study conducted by the Boston University School of Public Health,
which was published in the September 1996 issue of the American Journal
of Public Health estimated that 500-600 alcohol-related highway deaths
would be prevented each year if all States lowered their BAC limits to
0.08 BAC. Such a reduction in deaths would represent a 4 percent
decrease in alcohol-related deaths nationwide and would result in cost
savings of approximately $1.5 billion each year. Copies of the economic
assessment are available to
[[Page 46886]]
the public in the docket for this rulemaking action.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), the agencies have evaluated the effects of this
action on small entities. Studies to date have not shown that 0.08 BAC
per se laws have affected alcohol consumption in any of the five States
analyzed. Thus, there should be no noticeable impact on small
businesses that sell and serve alcohol. Since this interim final rule
will apparently affect only State governments, it will not have any
effect on small businesses. Thus, we certify that this action will not
have a significant impact on a substantial number of small entities and
find that the preparation of a Regulatory Flexibility Analysis is
unnecessary.
Paperwork Reduction Act
This action does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act of 1980, 44
U.S.C. Chapter 35, as implemented by the Office of Management and
Budget (OMB) in 5 CFR Part 1320.
National Environmental Policy Act
The agencies have analyzed this action for the purpose of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
have determined that it will not have any significant impact on the
quality of the human environment.
The Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (Public Law 104-4)
requires agencies to prepare a written assessment of the costs,
benefits and other affects of final rules that include a Federal
mandate likely to result in the expenditure by State, local or tribal
governments, in the aggregate, or by the private sector, of more than
$100 million annually. This interim final rule does not meet the
definition of a Federal mandate. It is a voluntary program in which
States can choose to participate, solely at their option. The costs to
States to qualify for participation in this program are minimal, and
will result in annual expenditures that will not exceed the $100
million threshold. Moreover, States that chose to participate in this
program will receive Federal incentive grants, which will provide funds
for activities that are eligible under Title 23 of the United States
Code.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this action does not have sufficient federalism implications to
warrant the preparation of a federalism assessment. Accordingly, the
preparation of a Federalism Assessment is not warranted.
List of Subjects in 23 CFR Part 1225
Alcohol and alcoholic beverages, Grant programs, Transportation,
Highway safety.
In accordance with the foregoing, a new Part 1225 is added to
chapter II of Title 23 of the Code of Federal Regulations to read as
follows:
PART 1225--OPERATION OF MOTOR VEHICLES BY INTOXICATED PERSONS
Sec.
1225.1 Scope.
1225.2 Purpose.
1225.3 Definitions.
1225.4 General requirements.
1225.5 Adoption of 0.08 BAC per se law.
1225.6 Award procedures.
Authority: 23 U.S.C. 163; delegation of authority at 49 CFR 1.48
and 1.50.
Sec. 1225.1 Scope.
This part prescribes the requirements necessary to implement
Section 163 of Title 23, United States Code, which encourages States to
enact and enforce 0.08 BAC per se laws.
Sec. 1225.2 Purpose.
The purpose of this part is to specify the steps that States must
take to qualify for incentive grant funds in accordance with 23 U.S.C.
163, and to encourage States to enact and enforce 0.08 BAC per se laws.
Sec. 1225.3 Definitions.
As used in this part:
(a) BAC means either blood or breath alcohol concentration.
(b) BAC per se law means a law that makes it an offense, in and of
itself, to operate a motor vehicle with an alcohol concentration at or
above a specified level.
(c) Alcohol concentration means either grams of alcohol per 100
milliliters of blood or grams of alcohol per 210 liters of breath.
(d) Has enacted and is enforcing means the State's law is in effect
and the State has begun to implement the law.
(e) Operating a motor vehicle means driving or being in actual
physical control of a motor vehicle.
(f) Standard driving while intoxicated offense means the non-BAC
per se driving while intoxicated offense in the State.
(g) State means any one of the fifty States, the District of
Columbia, or Puerto Rico.
Sec. 1225.4 General requirements.
(a) Qualification requirements.
(1) To qualify for a first-year grant under 23 U.S.C. 163, a State
must submit a certification by an appropriate State official, that the
State has enacted and is enforcing a 0.08 BAC per se law that conforms
to 23 U.S.C. 163 and Sec. 1225.5 of this part and that the funds will
be used for eligible projects and programs. The certification shall be
worded as follows:
(Name of certifying official), (position title), of the (State
or Commonwealth) of ________, do hereby certify that the (State or
Commonwealth) of ________ has enacted and is enforcing a 0.08 BAC
per se law that conforms to 23 U.S.C. 163 and 23 CFR 1225.5,
(citations to State law), and that the funds received by the (State
or Commonwealth) of ________ under 23 U.S.C. 163 will be used for
projects eligible for assistance under Title 23 of the United States
Code, which include highway construction as well as highway safety
projects and programs.
(2) To qualify for a subsequent-year grant under 23 U.S.C. 163, a
State must submit a certification by an appropriate State official.
(i) If the State's 0.08 BAC per se law has not changed since the
State last qualified for grant funds under this program, the
certification shall be worded as follows:
(Name of certifying official), (position title), of the (State
or Commonwealth) of ________, do hereby certify that the (State or
Commonwealth) of ________ has not changed and is enforcing a 0.08
BAC per se law, which conforms to 23 U.S.C. 163 and 23 CFR 1225.5,
(citations to State law), and that the funds received by the (State
or Commonwealth) of ________ under 23 U.S.C. 163 will be used for
projects eligible for assistance under Title 23 of the United States
Code, which include highway construction as well as highway safety
projects and programs.
(ii) If the State's 0.08 BAC per se law has changed since the State
last qualified for grant funds under this program, the certification
shall be worded as follows:
(Name of certifying official), (position title), of the (State
or Commonwealth) of ________, do hereby certify that the (State or
Commonwealth) of ________ has amended and is enforcing a 0.08 BAC
per se law that conforms to 23 U.S.C. 163 and 23 CFR 1225.5,
(citations to State law), and that the funds received by the (State
or
[[Page 46887]]
Commonwealth) of ________, under 23 U.S.C. 163 will be used for
projects eligible for assistance under Title 23 of the United States
Code, which include highway construction as well as highway safety
projects and programs.
(3) An original and four copies of the certification shall be
submitted to the appropriate NHTSA Regional Administrator. Each
Regional Administrator will forward the certifications it receives to
appropriate NHTSA and FHWA offices.
(4) Each State that submits a certification will be informed by the
agencies whether or not it qualifies for funds.
(5) To qualify for FY 1998 grant funds, certifications must be
received by the agencies not later than September 4, 1998.
(6) To qualify for grant funds in a subsequent fiscal year,
certifications must be received by the agencies not later than July 1
of that fiscal year.
(b) Limitation on grants. A State may receive grant funds, subject
to the following limitations:
(1) The amount of a grant apportioned to a State under Sec. 1225.5
of this part shall be determined by multiplying:
(i) The amount authorized to carry out section 163 of 23 U.S.C. for
the fiscal year; by
(ii) The ratio that the amount of funds apportioned to each such
State under section 402 for such fiscal year bears to the total amount
of funds apportioned to all such States under section 402 for such
fiscal year.
(2) A State may obligate grant funds apportioned under this part
for any project eligible for assistance under Title 23 of the United
States Code.
(3) The Federal share of the cost of a project funded with grant
funds awarded under this part shall be 100 percent.
Sec. 1225.5 Adoption of 0.08 BAC per se law.
To qualify for an incentive grant under this part, a State must
demonstrate that it has enacted and is enforcing a law that provides
that any person with a blood alcohol concentration (BAC) of 0.08
percent or greater while operating a motor vehicle in the State shall
be deemed to have committed a per se offense of driving while
intoxicated or an equivalent per se offense. The law must:
(a) Apply to all persons;
(b) Set a blood alcohol concentration of not higher than 0.08
percent as the legal limit;
(c) Make operating a motor vehicle by an individual at or above the
legal limit a per se offense;
(d) Provide for primary enforcement;
(e) Apply the 0.08 BAC legal limit to the State's criminal code
and, if the State has an administrative license suspension or
revocation (ALR) law, to its ALR law; and
(f) Be deemed to be or be equivalent to the standard driving while
intoxicated offense in the State.
Sec. 1225.6 Award procedures.
In each Federal fiscal year, grant funds will be apportioned to
eligible States upon submission and approval of the documentation
required by Sec. 1225.4(a) and subject to the limitations in
Sec. 1225.4(b). The obligation authority associated with these funds
are subject to the limitation on obligation pursuant to section 1102 of
TEA 21.
Issued on: August 31, 1998.
Gloria J. Jeff,
Deputy Administrator, Federal Highway Administration.
Ricardo Martinez,
Administrator, National Highway Traffic Safety Administration.
[FR Doc. 98-23748 Filed 8-31-98; 12:26 pm]
BILLING CODE 4910-59-P