[Federal Register: August 22, 2003 (Volume 68, Number 163)]
[Rules and Regulations]
[Page 50703-50710]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22au03-11]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
Federal Highway Administration
23 CFR Part 1225
[Docket No. NHTSA-2002-13680]
RIN 2127-AI44
Operation of Motor Vehicles by Intoxicated Persons
AGENCY: National Highway Traffic Safety Administration (NHTSA) and
Federal Highway Administration (FHWA), Department of Transportation
(DOT).
ACTION: Final rule.
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SUMMARY: This final rule implements a program enacted by the Department
of Transportation and Related Agencies Appropriations Act, 2001 (DOT
Appropriations Act of FY 2001), which requires the withholding of
Federal-aid highway funds, beginning in fiscal year (FY) 2004, from any
State that has not enacted and is not enforcing a law that provides
that any person with a blood or breath 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 final rule defines
what constitutes a conforming 0.08 BAC law for purposes of this
statute.
DATES: Effective Date: This final rule becomes effective on October 21,
2003.
Compliance Date: To meet the requirements of the 0.08 BAC sanction
program, States must enact and enforce a conforming Section 163 law on
or before September 30, 2003.
FOR FURTHER INFORMATION CONTACT: In NHTSA: Ms. Jo Ann Moore, Office of
Injury Control Operations & Resources, NTI-200, telephone (202) 366-
2121, fax (202) 366-7394; Ms. Carmen Hayes, Office of Injury Control
Operations & Resources, NTI-200, telephone (202) 366-2121; Ms. Tyler
Bolden, Office of Chief Counsel, NCC-113, telephone (202) 366-1834, fax
(202) 366-3820.
In FHWA: Mr. Rudy Umbs, Office of Safety, HSA-1, telephone (202)
366-2177, fax (202) 366-3222; Mr. Raymond W. Cuprill, Office of Chief
Counsel, HCC-30, telephone (202) 366-0791, fax (202) 366-7499; or Mr.
Byron E. Dover, Office of Safety, HSA-10, telephone (202) 366-2161, fax
(202) 366-2249.
SUPPLEMENTARY INFORMATION:
[[Page 50704]]
Table of Contents for Supplementary Information
I. Background
A. TEA-21, Section 163 Incentive Grant Program
B. Effects of Section 163 Incentive Grant Program
C. DOT Appropriations Act for FY 2001--Sanction Program
II. Notice of Proposed Rulemaking for the 0.08 BAC Sanction Program
A. Compliance Criteria
B. Demonstrating Compliance
C. Period of Availability of Funds
III. Comments
A. Federalism
B. Comments Regarding Compliance Criteria
C. Comments Regarding Procedures
IV. Regulatory Analyses and Notices
A. Executive Order 12988 (Civil Justice Reform)
B. Executive Order 12866 (Regulatory Planning and Review) and
DOT Regulatory Policies and Procedures
C. Regulatory Flexibility Act
D. Paperwork Reduction Act
E. National Environmental Policy Act
F. The Unfunded Mandates Reform Act
G. Executive Order 13132 (Federalism Summary Impact Statement)
H. Executive Order 13175 (Consultation and Coordination with
Indian Tribal Governments)
I. Background
A. TEA-21, Section 163 Incentive Grant Program
On June 9, 1998, the Transportation Equity Act for the 21st Century
(TEA-21) was signed into law. Section 1404 of the Act established a
$500 million incentive grant program under 23 U.S.C. 163 to encourage
States to adopt effective 0.08 BAC laws. Section 163 provided 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 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.
On September 3, 1998, NHTSA and the FHWA (the agencies) published a
joint interim final rule, establishing the criteria that States must
meet and the procedures they must follow to qualify for an incentive
grant. See 63 FR 46881. On July 1, 1999, after considering the comments
filed in response to the interim final rule, the agencies published a
final rule implementing the Section 163 incentive grant program. See 64
FR 35568.
B. Effects of Section 163 Incentive Grant Program
Before the Section 163 incentive grant program was signed into law,
only 16 States had enacted laws that established 0.08 BAC as their per
se limit. Between June 1998 and October 2000, only two additional
States and the District of Columbia enacted and began enforcing 0.08
BAC laws that met all the Section 163 criteria.
C. DOT Appropriations Act for FY 2001--Sanction Program
In an effort to further reduce impaired driving injuries and
fatalities, Congress created a new 0.08 BAC program in the DOT
Appropriations Act of FY 2001. See Public Law 106-346--Appendix, sec.
351, 114 Stat. 1356A-34, 35. Section 351 of Public Law 106-346-Appendix
(Section 351) provides for the withholding of Federal-aid highway funds
from any State that has not enacted and is not enforcing a 0.08 BAC law
by the beginning of FY 2004. This legislation did not alter the
incentive grant program, which was established in TEA-21. That program
will continue through FY 2003.
The DOT Appropriations Act of FY 2001 was signed into law on
October 23, 2000. Since that date, twenty-six additional States have
enacted conforming 0.08 BAC laws. As of August 15, 2003, forty-four
States, the District of Columbia and the Commonwealth of Puerto Rico
have enacted 0.08 BAC laws that meet all the requirements of Section
163.\1\ See Table 1.
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\1\ To date, the following States have not enacted conforming
0.08 BAC laws: Colorado, Delaware, Minnesota, New Jersey,
Pennsylvania and West Virginia.
Table 1.--States With 0.08 BAC Laws That Meet Section 163 Criteria
[as of August 15, 2003]
------------------------------------------------------------------------
Enactment Effective
State date date
------------------------------------------------------------------------
Alabama......................................... 07/31/95 10/01/95
Alaska.......................................... 07/03/01 09/01/01
Arizona......................................... 04/11/01 08/31/01
Arkansas........................................ 03/06/01 08/13/01
California...................................... 1989 01/01/90
Connecticut..................................... 07/01/02 07/01/02
District of Columbia............................ 12/01/98 04/13/99
Florida......................................... 04/27/93 01/01/94
Georgia......................................... 04/16/01 07/01/01
Hawaii.......................................... 06/30/95 06/30/95
Idaho........................................... 03/17/97 07/01/97
Illinois........................................ 07/02/97 07/02/97
Indiana......................................... 05/09/01 07/01/01
Iowa............................................ 04/24/03 07/01/03
Kansas.......................................... 04/22/93 07/01/93
Kentucky........................................ 04/21/00 10/01/00
Louisiana....................................... 06/26/01 09/30/03
Maine........................................... 04/28/88 08/04/88
Maryland........................................ 04/10/01 09/30/01
Massachusetts................................... 06/30/03 06/30/03
Michigan........................................ 07/15/03 09/30/03
Mississippi..................................... 03/11/02 07/01/02
Missouri........................................ 06/12/01 09/29/01
Montana......................................... 04/15/03 04/15/03
Nebraska........................................ 03/01/01 09/01/01
Nevada.......................................... 06/10/03 09/23/03
New Hampshire................................... 04/15/93 01/01/94
New Mexico...................................... 03/19/93 01/01/94
New York........................................ 12/30/02 11/01/03
North Carolina.................................. 07/05/93 10/01/93
North Dakota*................................... 04/07/03 08/01/03
Ohio............................................ 03/31/03 07/01/03
Oklahoma........................................ 06/08/01 07/01/01
Oregon.......................................... 08/04/83 10/15/83
Puerto Rico..................................... 01/10/00 01/10/01
Rhode Island.................................... 07/02/03 07/02/03
South Carolina.................................. 06/19/03 08/19/03
South Dakota.................................... 02/27/02 07/01/02
Tennessee....................................... 06/27/02 07/01/03
Texas........................................... 05/28/99 09/01/99
Utah............................................ 03/19/83 08/01/83
Vermont......................................... 06/06/91 07/01/91
Virginia........................................ 04/06/94 07/01/94
Washington...................................... 03/30/98 01/01/99
Wisconsin....................................... 07/03/03 09/30/03
Wyoming......................................... 03/11/02 07/01/02
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Total: 44 States, plus the District of Columbia and Puerto Rico
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* North Dakota's 0.08 BAC law, which was scheduled to go into effect on
August 1, 2003, was suspended by submission of a referendum petition,
and the future status of this law is currently uncertain.
II. Notice of Proposed Rulemaking for the 0.08 BAC Sanction Program
On February 6, 2003, the agencies published a notice of proposed
rulemaking (NPRM) in the Federal Register to define the criteria to be
applied to determine what constitutes a valid 0.08 BAC law for purposes
of the statute (68 FR 6091). The statute requires the Secretary to
withhold from apportionment a portion of Federal-aid highway funds from
any State that does not meet the Section 163 requirements, beginning on
October 1, 2003. To avoid such withholding, a State must enact and
enforce a law that provides that any person with a 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 Secretary has delegated the authority to
define conforming 0.08 BAC laws to NHTSA and the authority to implement
the 0.08 BAC sanction program to the FHWA.
As required by statute, if any State has not enacted and is not
enforcing a conforming 0.08 BAC law by October 1,
[[Page 50705]]
2003, two percent of its FY 2004 Federal-aid highway apportionment
under 23 U.S.C. 104(b)(1), 104(b)(3) and 104(b)(4) shall be withheld.
These sections relate to the apportionments for the National Highway
System, the Surface Transportation Program and the Interstate System
(including resurfacing, restoring, rehabilitating and reconstructing
the interstate system). The amount withheld would increase by two
percent each year, until it reaches eight percent in FY 2007 and
thereafter.
A. Compliance Criteria
In the NPRM, the agencies proposed that the same criteria that had
been applied since 1998 to determine whether a State had enacted and
made effective a conforming 0.08 BAC law under the Section 163
incentive grant program, be applied also to the Section 163 sanction
program. See 64 FR 35568. To meet the Section 163 criteria, a
conforming 0.08 BAC law must contain the following elements:
1. Any Person
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 or Breath Alcohol Concentration (BAC) of 0.08 Percent
A State must set a level of no more than 0.08 percent as the per se
limit for blood or breath alcohol concentration, thereby making it an
offense for any person to have a BAC of 0.08 or greater while operating
a motor vehicle.
3. Per Se Law
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 operating a motor
vehicle with a BAC of 0.08 percent or above, in and of itself, an
offense.
4. Primary Enforcement
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 meet the
requirements of this part.
5. Both Criminal and ALR Laws
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 0.08
BAC per se level under its ALR law, as well.
6. Standard Driving While Intoxicated Offense
The State's 0.08 BAC per se law must be deemed to be or be
equivalent to the State's standard driving while intoxicated offense;
that is, the State's non-BAC per se driving while intoxicated offense
in the State.
A more detailed discussion of the six elements described above is
contained in the rulemaking for the incentive grant program. See 64 FR
at 46883-84.
B. Demonstrating Compliance
To demonstrate compliance with this rulemaking, the agencies
proposed that States be required to submit conforming certifications to
the appropriate NHTSA Regional Administrator on or before July 15, to
receive an incentive grant in FY 2003; and on or before September 30,
to avoid the withholding of funds in FY 2004 and subsequent fiscal
years.
In addition, the NPRM proposed not to require States in compliance
with the Section 163 incentive grant program in FY 2003 to submit
additional certifications for FY 2004, unless their law/s had changed
in the interim.
Each State initially determined to be in noncompliance would, under
the proposal, have until September 30 to rebut the initial
determination or to come into compliance. The State would be notified
of the agencies' final determination of compliance or noncompliance and
the amount of funds to be withheld as part of the final notice of
apportionments (which normally is issued on October 1 of each year).
C. Period of Availability of Funds
The NPRM proposed an incremental approach to the withholding of
funds apportionment for noncompliance. Specifically, the NPRM proposed
that if a State is found to be in noncompliance on October 1, 2003, the
State would be subject to a two percent withholding of its FY 2004
apportionment on that date. If a State is found to be in noncompliance
on October 1 of any subsequent fiscal year, the withholding percentage
would increase by two percent each year, until it reached eight percent
in FY 2007 and thereafter. See Table 2.
In addition, the NPRM proposed that any State that comes into
compliance with the requirements of Section 163 on or before September
30, 2007, would have their withheld funds restored to them. However, if
a State is not in compliance with the requirements of Section 163 on
October 1, 2007, any funds withheld from apportionment to the State
would begin to lapse and would no longer be available for
apportionment.
Table 2.--Effects of the 0.08 BAC Sanction Program on Non-Complying
States
------------------------------------------------------------------------
Withhold
Fiscal year (percent) Lapse
------------------------------------------------------------------------
2004...................... 2
2005...................... 4
2006...................... 6
2007...................... 8
2008...................... 8 2% withheld in FY04.
2009...................... 8 4% withheld in FY05.
2010...................... 8 6% withheld in FY06.
2011...................... 8 8% withheld in FY07.
2012...................... 8 8% withheld in FY08.
------------------------------------------------------------------------
III. Comments
The NPRM was published on February 6, 2003. The agencies received
five comments in response to it. Comments were received from two State
agencies and three concerned individuals. The State comments were
submitted by Judy E. Brown, Chief of the Texas Department of Public
Safety (TXDPS), Driver License Division, and Frank J. Busalacchi,
Secretary for the Wisconsin Department of Transportation (WIDOT).
A. Federalism
To ensure that States had a full opportunity to raise any
Federalism concerns, the agencies conducted an outreach program aimed
at eliciting comments on the possible Federalism implications of this
rule.
Since the incentive grant program was signed into law, States have
had continuous contact with the agencies. States that were considering
passing 0.08 BAC legislation were encouraged to submit copies of their
proposals to the agencies' regional offices for review and initial
comment. These legislative proposals were then forwarded to NHTSA's
Office of Chief Counsel (OCC) to determine compliance with the
requirements of Section 163. During this review process, OCC staff and
staff from the Office of Injury Control Operations and Resources (ICOR)
interacted with different State employees and officials by telephone
and through electronic mail. These communications, both formal and
informal, provided substantial opportunities for State and local
officials to discuss and comment
[[Page 50706]]
on program compliance and policy issues. Following a full review of all
applicable State laws and implementing regulations, OCC notified States
of their compliance with Section 163 by letter. Any State found not to
be in compliance with Section 163 was notified of the reasoning behind
this determination and reminded of the impending sanction program
becoming effective in FY 2004.
The agencies also solicited comments in the NPRM, and following its
publication, sent letters requesting comments on possible Federalism
implications to several National organizations representing State and
local officials. The six organizations included: The National Governors
Association, National Conference of State Legislatures, International
Association of Chiefs of Police, Governors Highway Safety Association,
National Sheriff's Association, and the American Association of State
Highway and Transportation Officials. NHTSA has not received any
indication of concerns about the Federalism implications of this
rulemaking from these representatives. In addition, none of these
groups submitted comments in response to the NPRM.
In sum, the agencies have considered the impact of this action on
State and local agencies. We have concluded that the effects on States
and local agencies will be minimal and consist of changes that States
make as a matter of course when amending a State law. Furthermore, the
agencies received no comments from State or local agencies to indicate
otherwise. Accordingly, the agencies do not believe that this final
rule raises any Federalism issues and no changes to this document are
required.
B. Comments Regarding Compliance Criteria
The agencies received few comments to the NPRM. In particular, the
agencies received no comments or objections to the compliance criteria
proposed in the NPRM. Accordingly, these portions of the NPRM are being
adopted without change.
C. Comments Regarding Procedures
The agencies received some comments and questions regarding
procedural aspects of the NPRM. Texas, which has had a conforming 0.08
BAC law since September 1, 1999, commented on the proposed
certification process. Specifically, the TXDPS commented favorably on
the proposed certification process, stating that the ``proposed
certifications will legitimately serve NHTSA's goal of ascertaining
state compliance for the purpose of Federal-aid highway and grant funds
distribution.'' Accordingly, TXDPS indicated that it has no objections
or additional comments regarding the agencies' proposal.
WIDOT requested clarification regarding ``the mechanics and
timeline of the process to restore withheld funding.'' Specifically,
WIDOT noted that Section 1225.9 of the proposed rule did not specify
``the manner in which withheld funds would be restored to a state that
comes into compliance following September 30, 2003.'' In its comments,
WIDOT indicated that it presumed that the certification process
detailed in Section 1225.7 of the proposed rule would be used for
restoration of withheld funds. However, WIDOT noted that the rule did
not specify that this would be the case. In addition, it remarked that
the NPRM did not indicate ``how quickly the restored funding will be
available to a compliant state.''
In response to these comments, the agencies have decided to modify
the regulation by adding new provisions to the sections regarding
``Certification requirements for sanction program'' and ``Period of
availability of withheld funds.'' The agencies have determined that no
other changes to the regulation are needed.
These new provisions specify the certification process that should
be followed for States that comply with the requirements of Section 163
in FY 2004 or thereafter. These new provisions also clarify that States
that are seeking compliance with Section 163, following a withholding
of funds under Section 1225.8, should contact their appropriate NHTSA
Regional Administrator and inform them that they have enacted a 0.08
BAC law they believe to be conforming. The new law and subsequent
certification of compliance will be reviewed by NHTSA. If NHTSA
determines, based on the State's law and its certification, that the
State is now in compliance with Section 163 and these implementing
regulations, NHTSA will inform the FHWA of its determination and the
FHWA will restore all withheld apportionment funds to the State's
appropriate apportionment categories as quickly as possible.
Three individuals also commented on the proposal, expressing
support and opposition to the federal policy underlying the
Congressional mandate and raising concerns about the constitutionality
of the proposal and the ability of States to receive incentive grants
in FY 2003.
Similar programs, such as the National Minimum Drinking Age and the
National Maximum Speed Limit programs, have been found constitutional
in the past and we consider this program to fall within the ambit of
those judicial rulings. See, South Dakota v. Dole, 483 U.S. 203 (1987)
(upholding the withholding of funds from States without a conforming
minimum drinking age act under the spending clause and the Twenty-first
Amendment) and The People v. Williams, 175 Cal. App. 3d Supp. 16 (1985)
(finding that the Federal withholding of funds from States without a
conforming maximum speed limit was an appropriate exercise of Congress'
authority under the spending clause and that the authority was not
limited by the Tenth Amendment).
The agencies also note that a commenter from Texas expressed
concern about this rulemaking because of ``a potential Procedural Due
Process problem.'' She asserted that, ``according to a literal reading
of Sec. 1225.5(a)(1), Louisiana's 0.08 BAC law must be enforced (and
therefore must also be effective) when Louisiana sends in its
certification letter * * * [yet] [t]he last day that Louisiana can send
a certification letter is July 15, 2003--a full 2\1/2\ months before
its 0.08 BAC law will be effective and enforced.''
To address this concern, the commenter suggested certain revisions
to the certification statements to allow Louisiana to qualify for an
incentive grant fund in FY 2003. Specifically, the commenter suggested
that the agencies amend the certification statement contained in
Section 1225.5(a)(1) to allow States to submit certifications by July
15, 2003, if the newly enacted laws become effective before the end of
the fiscal year.
While it is clear that States have no property interest in
receiving TEA-21 funds, the comment raises a legitimate question
regarding the manner in which States, such as Louisiana, are to certify
that they qualify for an incentive grant if they enact a law prior to
July 15 (when certifications are due to be submitted), and their law
becomes effective on or before September 30, but after July 15. This
issue had already been addressed in the 0.08 incentive grant
regulations. See 64 FR at 35572.
In particular, the regulations provide that, ``If the State's 0.08
BAC per se law is not currently in effect, but will become effective
and be enforced before the end of the current fiscal year, 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 a 0.08 BAC per se law that
conforms to 23 U.S.C. 163 and 23 CFR 1225.4, (citations to
[[Page 50707]]
State law), and will become effective and be enforced as of
(effective date of the 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.'' 23 CFR 1225.5(a)(1)(ii).
Since the start of the incentive grant program in 1998, the
agencies have received and accepted certifications from a number of
States using this type of certification statement. Given that the State
of Louisiana enacted a conforming 0.08 BAC per se law prior to July 15,
2003, and it will become effective on September 30, 2003, the State
should be able to submit this type of certification, in conformance
with the current regulation.
The agencies did not propose to change this aspect of the
regulation. However, after consideration of the comments received in
response to this action, the agencies have decided to modify the
certification requirements for the sanction program by adopting a
similarly worded certification for States that are seeking to
demonstrate conformance with the sanction program based on an enacted
law that has not yet become effective.
IV. Regulatory Analyses and Notices
A. Executive Order 12988 (Civil Justice Reform)
This final rule will not have any preemptive or retroactive effect.
This action meets applicable standards in sections 3(a) and 3(b)(2) of
Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
B. 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 the Department of Transportation
Regulatory Policies and Procedures. This determination is based on the
fact that the withholding of Federal-aid highway funds under the 0.08
BAC sanction program is a matter of substantial interest to the public
and to Congress. Further, there is a possibility that the State
withholdings resulting from this action could total from $34 million to
over $137 million. Accordingly, a final regulatory evaluation was
prepared in conjunction with this rule.
The final regulatory evaluation concludes that, aside from
advertising costs, the costs for implementing this rulemaking action
are minimal and consist of changes that States make as a matter of
course when amending a State law. A complete discussion of the economic
impact of this rule is contained in the final regulatory evaluation,
which is in the docket.
C. 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. As a sanction program, this rule will have
different consequences depending on whether the States enact and
enforce a conforming 0.08 BAC law or whether they choose to accept the
sanction for not enacting and enforcing a conforming law.
In States that have enacted 0.08 BAC laws, consumption of beer has
dropped 3.5 percent on average. By contrast, consumption of wine and
spirits do not correlate with the number of drinking drivers in fatal
crashes. Thus, if a State passes a 0.08 law, all businesses, large and
small, that sell and serve beer are likely to experience a small
reduction in sales. However, most businesses sell other products, such
as food or other beverages. Therefore, the overall impact on those
businesses would be significantly less than 3.5 percent. For some
businesses, such as beer distributors (where a small business is
defined as 100 employees or less), the decline may approach the 3.5
percent range.
States that do not enact and enforce conforming 0.08 BAC laws will
lose Federal-aid highway funds. This loss may impact highway
construction firms, where a small business is defined as $28.5 million
in annual gross income. The precise number of small businesses that may
be affected cannot be determined, since it is assumed that any impact
is just as likely to impact businesses of any size. In addition, the
penalty affects only Federal highway funds, which make up, on average
in the 6 States affected, only 15 percent of all State highway
expenditures. Accordingly, even if the sanction were imposed at the
highest rate of 8 percent, the maximum reductions in highway
expenditures in the relevant States would be within a range of only
1.09 percent (in Minnesota or New Jersey) to 1.93 percent (in
Delaware). Further, most of these businesses do not rely totally on
highway construction contracts for their revenue.
Based on these considerations, we hereby certify that this action
will not have a significant economic impact on a substantial number of
small entities.
D. Paperwork Reduction Act
This action does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act of 1995, 44
U.S.C. Chapter 35, as implemented by the Office of Management and
Budget (OMB) in 5 CFR part 1320.
E. National Environmental Policy Act
The agencies have reviewed this action for the purpose of the
National Environmental Policy Act (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.
F. The Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531) requires
agencies to prepare a written assessment of the costs, benefits and
other effects of 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 $100 million or more (adjusted
annually for inflation) in any one year. This final rule does not
require an assessment under this law. The costs to States to enact and
make effective conforming 0.08 BAC laws will not result in annual
expenditures that exceed the $100 million threshold. Moreover, States
that enact 0.08 BAC laws will avoid the loss of millions of dollars in
Federal-aid highway funds.
G. Executive Order 13132 (Federalism Summary Impact Statement)
Executive Order 13132 requires Federal agencies to consider the
impact of their regulatory actions on State and local governments.
Where such actions have ``federalism implications,'' agencies are
directed to provide ``a description of the extent of the agency's prior
consultation with State and local officials; a summary of the nature of
their concerns and the agency's position supporting the need to issue
the regulation; and a statement of the extent to which the concerns of
the State and local officials have been met.''
For the reasons cited earlier in the preamble, the agencies
conclude that the effects of this rule on States and local agencies
will be minimal and consist of changes that States make as a matter of
course when amending a State law. Furthermore, the agencies note that
Congress created the 0.08 BAC sanction program in Public Law 106-346-
Appendix, and the agencies are required to carry out this program in
accordance with the principles established by Congress.
[[Page 50708]]
Accordingly, the agencies do not believe that this final rule
raises any Federalism issues and no changes to this document are
required.
H. Executive Order 13175 (Consultation and Coordination with Indian
Tribal Governments)
The agencies have analyzed this action under Executive Order 13175,
and believe that this final rule will not have a substantial direct
effect on one or more Indian tribes; will not impose substantial direct
compliance costs on Indian tribal governments; and will not preempt
tribal law. Therefore, a tribal summary impact statement is not
required.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory section listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross-reference this section with the
Unified Agenda.
List of Subjects in 23 CFR Part 1225
Alcohol and alcoholic beverages, Transportation, Highway safety.
0
In accordance with the foregoing, 23 CFR Part 1225 is revised 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 Adoption of 0.08 BAC per se law.
1225.5 General requirements for incentive grant program.
1225.6 Award procedures for incentive grant program.
1225.7 Certification requirements for sanction program.
1225.8 Funds withheld from apportionment.
1225.9 Period of availability of withheld funds.
1225.10 Apportionment of withheld funds after compliance.
1225.11 Notification of compliance.
1225.12 Procedures affecting States in noncompliance.
Appendix A to Part 1225--Effects of the 0.08 BAC Sanction Program on
Non-Complying States
Authority: 23 U.S.C. 163; sec. 351, Pub. L. 106-346--Appendix,
114 Stat. 1356A-34, 35; delegation of authority at 49 CFR 1.48 and
1.50.
Sec. 1225.1 Scope.
This part prescribes the requirements necessary to implement 23
U.S.C. 163, which encourages States to enact and enforce 0.08 BAC per
se laws through the use of incentive grants and Section 351 of Public
Law 106-346--Appendix, which requires the withholding of Federal-aid
highway funds from any State that has not enacted and is not enforcing
a 0.08 BAC per se law as described in 23 U.S.C. 163.
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 the steps that States must take to avoid the withholding of
funds as required by Section 351 of Public Law 106-346--Appendix.
Sec. 1225.3 Definitions.
As used in this part:
(a) Alcohol concentration means either grams of alcohol per 100
milliliters of blood or grams of alcohol per 210 liters of breath.
(b) ALR means either administrative license revocation or
administrative license suspension.
(c) BAC means either blood or breath alcohol concentration.
(d) 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.
(e) Citations to State law means citations to all sections of the
State's law relied on to demonstrate compliance with 23 U.S.C. 163,
including all applicable definitions and provisions of the State's
criminal code and, if the State has an ALR law, all applicable
provisions of the State's ALR law.
(f) Has enacted and is enforcing means the State's law is in effect
and the State has begun to implement the law.
(g) Operating a motor vehicle means driving or being in actual
physical control of a motor vehicle.
(h) Standard driving while intoxicated offense means the non-BAC
per se driving while intoxicated offense in the State.
(i) State means any one of the 50 States, the District of Columbia,
or Puerto Rico.
Sec. 1225.4 Adoption of 0.08 BAC per se law.
In order to avoid the withholding of funds as specified in Sec.
1225.8 of this part, and to qualify for an incentive grant under Sec.
1225.5 of this part, a State must demonstrate that it has enacted and
is enforcing a law that provides that any person with a blood or breath
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 BAC 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. 1225.5 General requirements for incentive grant program.
(a) Certification 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. 1225.4
of this part and that the funds will be used for eligible projects and
programs.
(i) If the State's 0.08 BAC per se law is currently in effect and
is being enforced, 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 1225.4,
(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 is not currently in effect,
but will become effective and be enforced before the end of the current
fiscal year, 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 a 0.08 BAC per se law that
conforms to 23 U.S.C. 163 and 23 CFR 1225.4, (citations to State
law), and will become effective and be enforced as of (effective
date of the 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.
[[Page 50709]]
(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 1225.4,
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 1225.4,
(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.
(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 grant funds in a fiscal year, certifications
must be received by the agencies not later than July 15 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. 1225.4
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. 1225.6 Award procedures for incentive grant program.
(a) In each Federal fiscal year, grant funds will be apportioned to
eligible States upon submission and approval of the documentation
required by Sec. 1225.5(a) and subject to the limitations in Sec.
1225.5(b). The obligation authority associated with these funds is
subject to the limitation on obligation pursuant to section 1102 of the
Transportation Equity Act for the 21st Century (TEA-21).
(b) As soon as practicable after the apportionment in a fiscal
year, but in no event later than September 30 of the fiscal year, the
Governor's Representative for Highway Safety and the Secretary of the
State's Department of Transportation for each State that receives an
apportionment shall jointly identify, in writing to the appropriate
NHTSA Regional Administrator, the amounts of the State's apportionment
that will be obligated to highway safety program areas and to Federal-
aid highway projects. Each NHTSA Regional Administrator will forward
copies of the joint letters to the appropriate NHTSA and FHWA offices.
(c) Apportionments will not be made by the NHTSA and FHWA unless
this letter from the State is received.
Sec. 1225.7 Certification requirements for sanction program.
(a) Beginning with FY 2004, to avoid the withholding of funds, each
State shall certify to the Secretary of Transportation, before the last
day of the previous fiscal year, that it meets all the requirements of
23 U.S.C. 163 and this part.
(b) The certification shall contain a statement from 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 23 CFR part 1225.
(1) If the State's 0.08 BAC per se law is currently in effect and
is being enforced, the certification shall be worded as follows:
I, (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 the requirements of 23 U.S.C. 163 and 23
CFR 1225.4, (citations to State law).
(2) If the State's 0.08 BAC per se law is not currently in effect,
but will become effective and be enforced before the end of the current
fiscal year, the certification shall be worded as follows:
I, (name of certifying official), (position title), of the (State or
Commonwealth) of --------, do hereby certify that the (State or
Commonwealth) of --------, has enacted a 0.08 BAC per se law that
conforms to the requirements of 23 U.S.C. 163 and 23 CFR 1225.4,
(citations to State law), and will become effective and be enforced
as of (effective date of the law).
(c) An original and four copies of the certification shall be
submitted to the appropriate NHTSA Regional Administrator. Each NHTSA
Regional Administrator will forward copies of the certifications
received to the appropriate NHTSA and FHWA offices.
(d) Once a State has been determined to be in compliance with the
requirements of 23 U.S.C. 163 and this part, it is not required to
submit additional certifications, except that the State shall promptly
submit an amendment or supplement to its certification provided under
this section if the State's 0.08 BAC per se law changes.
(e) Certifications submitted in FY 2003. (1) Any State that submits
a certification of compliance under Sec. 1225.5 of this part, in
conformance with the requirements of 23 U.S.C. 163, on or before July
15, 2003, will qualify for an incentive grant in FY 2003 and will avoid
the withholding of funds in FY 2004. All certifications submitted in
conformance with the incentive grant program will meet the
certification requirements of the sanction program.
(2) Any State that submits a certification of compliance under this
section, in conformance with the requirements of 23 U.S.C. 163, between
July 16, 2003 and September 30, 2003, will not qualify for an incentive
grant in FY 2003, but will meet the certification requirements of the
sanction program, thereby avoiding the withholding of funds in FY 2004.
(f) Certifications submitted in FY 2004 or thereafter. Any State
that has been in noncompliance with the requirements of 23 U.S.C. 163
and this part, in or after FY 2004, will initially be subject to a
withholding of funds in accordance with Sec. 1225.8 of this part.
Following the submission of a conforming certification of compliance by
such States, all withheld funds will be restored to a States'
appropriate apportionment categories in accordance with Sec. 1225.9 of
this part.
[[Page 50710]]
Sec. 1225.8 Funds withheld from apportionment.
(a) Beginning in fiscal year 2004, the Secretary shall withhold 2
percent of the amount required to be apportioned for Federal-aid
highways to any State under each of paragraphs (1), (3), and (4) of
section 104(b) of title 23, United States Code, if a State has not
enacted and is not enforcing a law that meets the requirements of 23
U.S.C. 163 and Sec. 1225.4 of this part.
(b) In fiscal year 2005, the Secretary shall withhold 4 percent of
the amount required to be apportioned for Federal-aid highways to any
State under each of paragraphs (1), (3), and (4) of section 104(b) of
title 23, United States Code, if a State has not enacted and is not
enforcing a law that meets the requirements of 23 U.S.C. 163 and Sec.
1225.4 of this part.
(c) In fiscal year 2006, the Secretary shall withhold 6 percent of
the amount required to be apportioned for Federal-aid highways to any
State under each of paragraphs (1), (3), and (4) of section 104(b) of
title 23, United States Code, if a State has not enacted and is not
enforcing a law that meets the requirements of 23 U.S.C. 163 and Sec.
1225.4 of this part.
(d) In fiscal year 2007, and in each fiscal year thereafter, the
Secretary shall withhold 8 percent of the amount required to be
apportioned for Federal-aid highways to any State under each of
paragraphs (1), (3), and (4) of section 104(b) of title 23, United
States Code, if a State has not enacted and is not enforcing a law that
meets the requirements of 23 U.S.C. 163 and Sec. 1225.4 of this part.
Sec. 1225.9 Period of availability of withheld funds.
If a State meets the requirements of 23 U.S.C. 163 and Sec. 1225.4
of this part within 4 years from the date that a State's apportionment
is reduced under Sec. 1225.8, the apportionment for such State shall
be increased by an amount equal to the reduction, as illustrated by
appendix A of this part. The restored apportionment will be available
to a State, as quickly as possible, upon a determination by NHTSA that
the State is in conformance and notification to the FHWA.
Sec. 1225.10 Apportionment of withheld funds after compliance.
If a State has not met the requirements of 23 U.S.C. 163 and Sec.
1225.4 of this part by October 1, 2007, the funds withheld under Sec.
1225.8 shall begin to lapse and will no longer be available for
apportionment to the State, in accordance with appendix A of this part.
Sec. 1225.11 Notification of compliance.
(a) Beginning with FY 2004, NHTSA and FHWA will notify States of
their compliance or noncompliance with the statutory and regulatory
requirements of 23 U.S.C. 163 and this part, based on a review of
certifications received. States will be required to submit their
certifications on or before September 30, to avoid the withholding of
funds in a fiscal year.
(b) This notification of compliance will take place through FHWA's
normal certification of apportionments process. If the agencies do not
receive a certification from a State, by June 15 of any fiscal year, or
if the certification does not conform to the requirements of 23 U.S.C.
163 and this part, the agencies will make an initial determination that
the State is not in compliance.
Sec. 1225.12 Procedures affecting States in noncompliance.
(a) Each fiscal year, each State determined to be in noncompliance
with 23 U.S.C. 163 and this part, based on NHTSA and FHWA's preliminary
review of its certification, will be advised of the amount of funds
expected to be withheld under Sec. 1225.8 from apportionment, as part
of the advance notice of apportionments required under 23 U.S.C.
104(e), which is ordinarily issued on July 1 of each fiscal year.
(b) If NHTSA and FHWA determine that any State is not in compliance
with 23 U.S.C. 163 and this part, based on the agencies' preliminary
review, the State may submit documentation showing why it is in
compliance. States will have until September 30 to rebut the initial
determination or to come into compliance with 23 U.S.C. and this part.
Documentation shall be submitted through NHTSA's Regional
Administrators, who will refer the requests to appropriate NHTSA and
FHWA offices for review.
(c) Each fiscal year, each State determined not to be in compliance
with 23 U.S.C. 163 and this part, based on NHTSA's and FHWA's final
determination, will receive notice of the funds being withheld under
Sec. 1225.8 from apportionment, as part of the certification of
apportionments required under 23 U.S.C. 104(e), which normally occurs
on October 1 of each fiscal year.
Appendix A to Part 1225--Effects of the 0.08 BAC Sanction Program on
Non-Complying States
Effects of the 0.08 BAC Sanction Program on Non-Complying States
------------------------------------------------------------------------
Fiscal year Withhold Lapse
------------------------------------------------------------------------
2004...................... 2%
2005...................... 4
2006...................... 6
2007...................... 8
2008...................... 8 2% withheld in FY04.
2009...................... 8 4% withheld in FY05.
2010...................... 8 6% withheld in FY06.
2011...................... 8 8% withheld in FY07.
2012...................... 8 8% withheld in FY08.
------------------------------------------------------------------------
Issued on: August 18, 2003.
Mary E. Peters,
Administrator, Federal Highway Administration.
Jeffrey W. Runge,
Administrator, National Highway Traffic Safety Administration.
[FR Doc. 03-21492 Filed 8-21-03; 8:45 am]
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