[Federal Register: February 6, 2003 (Volume 68, Number 25)]
[Proposed Rules]
[Page 6091-6100]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06fe03-10]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 6091]]
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: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: This document proposes to implement a new 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 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 document solicits
comments on a proposed regulation to clarify what States must do to
avoid the withholding of funds.
DATES: Comments must be received on or before April 7, 2003.
ADDRESSES: Submit written comments to the Docket Management Facility,
DOT, 400 Seventh Street, SW., Room PL-401, Washington, DC 20590.
Alternatively, you may submit your comments electronically by
logging onto the Docket Management System (DMS) Web site at http://dms.dot.gov/submit.
Click on ``Help & Information'' or ``Help/Info'' to
view instructions for filing your comments electronically. Regardless
of how you submit your comments, you should mention the docket number
of this proposed rule.
FOR FURTHER INFORMATION CONTACT: In NHTSA: Ms. Marlene Markison, Office
of Injury Control Operations & Resources, NTI-200, telephone (202) 366-
2121, fax (202) 366-7394; Ms. Heidi Coleman, Office of Chief Counsel,
NCC-113, telephone (202) 366-1834, fax (202) 366-3820; or Ms. Tyler
Bolden, Office of Chief Counsel, NCC-113, telephone (202) 366-1834, fax
(202) 366-3820.
In FHWA: Mr. Randy Umbs, Office of Safety, HSA-1, telephone (202)
366-2177, fax (202) 366-3222; or Mr. Raymond W. Cuprill, Office of
Chief Counsel, HCC-30, telephone (202) 366-0791, fax (202) 366-7499.
SUPPLEMENTARY INFORMATION: The DOT Appropriations Act of FY 2001 was
signed into law on October 23, 2000. See Public Law 106-346--Appendix,
sec. 351, 114 Stat. 1356A-34, 35. Section 351 of Public Law 106-346--
Appendix (Section 351) provides that, beginning in FY 2004, the
Secretary of Transportation shall withhold certain Federal-aid highway
funds from any State that has not enacted and is not enforcing a 0.08
BAC law as described in 23 U.S.C. 163(a) (Section 163). Section 163
provides that 0.08 BAC laws must specify 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.
Background
The Problem of Impaired Driving
In the year 2000, the number of people who were killed in motor
vehicle crashes reached 41,821. Alcohol use was linked to 16,653 of
these crashes, an average of 1 alcohol-related fatality every 32
minutes. Although only about 8 percent of all motor vehicle crashes
involve the use of alcohol, 40 percent of fatal crashes involve alcohol
use.
Injuries caused by motor vehicle crashes are the leading cause of
death for people aged 4 to 33. Each year, these injuries cost 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. Alcohol-
related crashes account for roughly 30 percent of these costs--more
than $45 billion each year.
While alcohol-related fatalities have dropped significantly, from
22,084 in 1990 to 16,653 in 2000, a 25 percent decrease in ten years,
alcohol involvement is still the single greatest factor in motor
vehicle deaths and injuries. The 25 percent decrease in alcohol-related
fatalities can be attributed to more effective laws, strong enforcement
and highly visible public information and education. Four laws that
have been proven effective in the fight against impaired driving are:
illegal per se laws; administrative license revocation (ALR) laws;
``zero tolerance'' laws and 0.08 BAC laws. Both individually and
collectively, these laws have played a crucial role in reducing the
number of alcohol-related fatalities in this country. Indeed, it has
been estimated that, if every State adopted a 0.08 BAC law,
approximately 590 lives could be saved each year.
Support for 0.08 BAC Laws
As we stated in the final rule for the Section 163 Incentive Grant
program (64 FR 35568, July 1, 1999), a number of studies sponsored by
NHTSA support a legal limit of 0.08 BAC, copies of which have been
placed in the docket. For example, the effect of California's 0.08 law
was analyzed in a 1991 NHTSA study entitled ``The Effects Following the
Implementation of an 0.08 BAC Limit and an Administrative Per Se law in
California.'' The study 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 ALR 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.
Another study, ``Lowering State Legal Blood Alcohol Limits to
0.08%: The Effect on Fatal Motor Vehicle Crashes,'' reported in the
September 1996 issue of the ``American Journal of Public Health,''
analyzed the effect of lowering BAC levels to 0.08 in multiple states.
The study, conducted by Boston University's School of Public Health,
[[Page 6092]]
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 suggested
that 0.08 BAC laws, particularly in combination with ALR laws, reduced
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 ALR laws, 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 fatalities would decrease nationwide by 500-600
per year, which would result in an economic cost savings of
approximately $1.5 billion.
More recently, additional studies have been conducted to determine
the effectiveness of 0.08 BAC laws. For example, in August 1999, NHTSA
sponsored a study conducted by the Pacific Institute for Research and
Evaluation, entitled ``The Relationship of Alcohol Safety Laws to
Drinking Drivers in Fatal Crashes,'' which analyzed the relationships
between the passage of key alcohol safety laws and the number of
drinking drivers in fatal crashes. Specifically, the study evaluated
the extent to which the reduction in alcohol-related fatalities could
be attributed to ALR laws, 0.10 BAC laws and/or 0.08 BAC laws. Study
results indicated that all three laws were associated with significant
reductions in fatal crashes involving drinking drivers. In particular,
0.08 BAC laws were associated with 8 percent reductions in the
involvement of both high BAC and lower BAC drivers in fatal crashes.
The study concluded that if all 50 States had 0.08 BAC laws in 1997,
590 lives could have been saved.
Also, Illinois' 0.08 BAC law, which was enacted in July 1997, was
analyzed in a NHTSA-sponsored study conducted by the Pacific Institute
for Research and Evaluation in December 2000. This study, entitled
``The Effectiveness of the Illinois .08 Law,'' found that after
enactment of the 0.08 BAC law, the number of DUI arrests of offenders
in the new 0.08 to 0.09 range increased statewide, while the average
BAC of arrested drivers declined. In addition, the proportion of
offenders with BACs higher than 0.15 decreased, and the proportion of
offenders in the 0.10 to 0.14 range increased slightly. Moreover, the
State experienced an overall reduction of 13.7 percent in the
proportion of alcohol-related fatalities, whereas surrounding States
without a 0.08 BAC law showed no similar decline. Illinois also
experienced an increase, by almost 11 percent, in the number of total
impaired driving arrests, and it was estimated that the 0.08 law may
have saved 47 lives in 1998 alone. However, only 18 months of data were
available for the report, so the above-mentioned reductions are limited
somewhat by the relatively short period of post-0.08 law data available
and the possible effects of other legislation implemented at the same
time as the 0.08 law.
An update to the Illinois study was published in December 2001. The
update, entitled ``Evaluation of the Illinois .08 Law: An Update with
the 1999 FARS Data,'' concluded that Illinois' 0.08 law reduced the
percentage of drinking drivers involved in fatal crashes by 13.65%. In
addition, it was estimated that during a two-year period (1998 and
1999), the 0.08 law had saved approximately 105 lives.
Another recent study sponsored by NHTSA, entitled ``Relative Risk
of Fatal Crash Involvement by BAC, Age, and Gender,'' provides further
support for a 0.08 BAC limit. The study reported that the relative risk
of involvement in a fatal passenger vehicle crash increased with higher
driver BAC levels in every age and sex group, among both fatally
injured and surviving drivers. Even a BAC increase of 0.02 percentage
points among 16-20 year old male drivers was estimated to more than
double the relative risk of a fatal single-vehicle crash injury. In
addition, at the midpoint of the 0.08 to 0.10 BAC range, the relative
risk of a fatal-single vehicle crash injury varied between 11.4 percent
for drivers 35 and older to 51.9 percent for male drivers aged 16-20.
The study concluded that drivers at non-zero BACs somewhat lower than
0.10 percent pose substantially elevated risks to themselves and to
other road users.
In addition, the results of a study, entitled ``A Review of the
Literature on the Effects of Low Doses of Alcohol on Driving-Related
Skills,'' were published by NHTSA in 2000. The study indicated that
alcohol impairs some driving skills, beginning with any significant
departure from zero BAC. Moreover, significant impairment was reported
at 0.05 BAC, and by 0.08 BAC, more than 94 percent of the reviewed
studies showed impairment in measurable skills. The study concluded
that all drivers can be expected to experience impairment in some
driving-related skills by 0.08 BAC or less.
Also in 2000, NHTSA published a study conducted by the Southern
California Research Institute, entitled ``Driver Characteristics and
Impairment at Various BACs.'' The study reported that there is evidence
of significant alcohol-related impairment throughout the range from
0.02 to 0.10 BAC. In addition, the study found that the percentage of
people exhibiting impairment and the magnitude of that impairment grows
as BAC levels increase. The study concluded that a majority of the
driving population is impaired in some important measures at BACs as
low as 0.02 BAC.
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 tough 0.08 BAC laws. Section 163 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 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 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, the agencies published a final rule,
implementing the Section 163 incentive grant program. See 64 FR 35568.
Effects of Section 163 Incentive Grant Program
Before the Section 163 program was implemented, only 16 States had
enacted laws that established 0.08 BAC as their legal per se limit.
Fifteen of these States had laws already in effect, so they were
eligible to receive Section 163 incentive grant funds in FY 1998. One
State, Washington, enacted a 0.08 BAC law on March 30, 1998, but the
law did not become effective until January 1, 1999. Thus, Washington
was not eligible to receive Section 163 incentive grant funds until FY
1999. Between June 1998 and October 2000, only two additional States
(Washington and Texas) and the District of Columbia enacted and began
enforcing 0.08 BAC laws that met all of the Section 163 criteria.
Although both
[[Page 6093]]
Kentucky and the Commonwealth of Puerto Rico enacted 0.08 BAC laws in
2000, these laws did not become effective until October 1, 2000 and
January 10, 2001 respectively. Thus, Kentucky and Puerto Rico were not
eligible for Section 163 incentive grant funds until FY 2001. Rhode
Island also adopted a 0.08 BAC law in 2000, but its 0.08 BAC law does
not conform to all of the requirements of Section 163 and Rhode Island
is not eligible to receive an incentive grant. See Table 1.
DOT Appropriations Act for FY 2001--Sanction Program
In an effort to further reduce drunk 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 and
will continue through FY 2003.
The DOT Appropriations Act of FY 2001 was signed into law on
October 23, 2000. Since that date, fifteen additional States (Alaska,
Arizona, Arkansas, Connecticut, Georgia, Indiana, Louisiana, Maryland,
Mississippi, Missouri, Nebraska, Oklahoma, South Dakota, Tennessee and
Wyoming) have enacted conforming 0.08 BAC laws. By October 2002,
thirty-three States, the District of Columbia and the Commonwealth of
Puerto Rico had established 0.08 BAC laws that met all of the
requirements of Section 163. See Table 1.
Although, Louisiana enacted a 0.08 BAC law in June 2001, this 0.08
BAC law will not become effective until September 30, 2003. Thus,
Louisiana will not be eligible to receive an incentive grant under the
Section 163 program until FY 2003, but it will avoid the withholding of
funds in FY 2004. Similarly, Tennessee enacted a 0.08 BAC law in June
2002, however, this law will not become effective until July 1, 2003.
Thus, Tennessee will not be eligible to receive an incentive grant
under the Section 163 program until FY 2003, but it will avoid the
withholding of funds in FY 2004.
Table 1.--States With 0.08 BAC Laws That Meet Section 163 Criteria (as
of October 2002)
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Enactment Effective
State Date Date
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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
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
Mississippi....................................... 03/11/02 07/01/02
Missouri.......................................... 06/12/01 09/29/01
Nebraska.......................................... 03/01/01 09/01/01
New Hampshire..................................... 04/15/93 01/01/94
New Mexico........................................ 03/19/93 01/01/94
North Carolina.................................... 07/05/93 10/01/93
Oklahoma.......................................... 06/08/01 07/01/01
Oregon............................................ 08/04/83 10/15/83
Puerto Rico....................................... 01/10/00 01/10/01
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
Wyoming........................................... 03/11/02 07/01/02
Total: 33 States, plus the District of Columbia and Puerto Rico
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Adoption of 0.08 BAC Law
Section 351 provides that the Secretary must withhold from
apportionment a portion of Federal-aid highway funds from any State
that does not meet the Section 163 requirements. 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.
Any State that does not enact and enforce a conforming 0.08 BAC law
will be subject to the withholding of a portion of its Federal-aid
highway funds. In accordance with the statute, if any State has not
enacted and is not enforcing a conforming 0.08 BAC law by October 1,
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 on
that date. 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.
Compliance Criteria
To avoid the withholding from apportionment of Federal-aid highway
funds, a State must enact and enforce a 0.08 BAC law that meets the
criteria defined in the implementing regulations for the Section 163
incentive grant program. See 64 FR 35568. To conform to the
requirements of Section 163, a 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 Alcohol Concentration (BAC) of 0.08 Percent
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.
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 qualify
for funds under this program.
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
[[Page 6094]]
establish an illegal 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.
In States with multiple drinking and driving provisions, the final
rule for the Section 163 incentive grant program stated that the
agencies 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 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. See 64 FR 35568.
A more detailed discussion of the six elements described above is
contained in the interim final rule establishing the criteria for the
Section 163 incentive grant program. See 63 FR at 46883-84.
During the agency's administration of the Section 163 incentive
grant program, we have considered a number of proposed laws to
determine whether a State's proposed 0.08 BAC offense was equivalent to
the State's standard driving while intoxicated offense. In some
reviews, these proposed laws were determined to be equivalent and in
others they were determined not to be equivalent. Two examples are
described below.
A. Rhode Island
Following our review of Rhode Island's new 0.08 BAC law (enacted in
2000), we concluded that the law did not make driving while intoxicated
with a BAC of 0.08 the standard driving while intoxicated offense or
equivalent to that offense in the State. Moreover, we determined that
the Rhode Island law did not apply the 0.08 BAC legal limit to the
State's criminal code.
Previously, Rhode Island's law provided that a person convicted of
driving while intoxicated (with a BAC of 0.10 or more) had committed a
misdemeanor and was subject to a fine of $100-$300, 10 to 60 hours of
public community restitution and/or imprisonment for up to one year.
Such person was subject also to a driver's license suspension of three
to six months.
Rhode Island's new law creates a three-tiered penalty scheme that
distinguishes between offenders with BACs of: (1) 0.08-0.09; (2) 0.10-
0.14 and (3) 0.15 and above. Under the new law, a person convicted of
driving while intoxicated with a BAC of 0.08 or 0.09 may receive the
following sanctions: a fine of $100-$250; 10-60 hours of public
community restitution; a special driving course; and suspension of
their driver's license up to 45 days. Moreover, the new law treats a
first time violation to the 0.08 offense only as a civil violation.
However, under Rhode Island's new law, a person convicted of
driving while intoxicated with a BAC of 0.10-0.14 is subject to a fine
of $100-$300, 10 to 60 hours of public community restitution and/or
imprisonment for up to one year, and suspension of their driver's
license for 3 to 6 months. Likewise, persons convicted of driving while
intoxicated with a BAC level of 0.15 or more, would receive increased
penalties of a fine of $500, 20-60 hours of public community
restitution, imprisonment up to one year, and suspension of their
driver's license for 3-6 months. Thus, the agency concluded that Rhode
Island's new law subjected 0.08 offenders to less severe sanctions than
those imposed on 0.10 offenders; and contained sanctions that were
permissive, and not mandatory, as required by Section 163 and the
agency's implementing regulations. In addition, violations to the 0.08
offense were only civil offenses and violations to the 0.10 offense
were criminal. Accordingly, the agency determined that Rhode Island's
law did not make driving while intoxicated with a BAC of 0.08 the
standard driving while intoxicated offense or an equivalent offense.
B. Alaska
Following our review of Alaska's new law (enacted in 2001), the
agency concluded that the 0.08 law was equivalent to the standard
driving while intoxicated offense in the State.
Previously, Alaska's law provided that a person committed the crime
of driving while intoxicated if the person operated or drove a motor
vehicle while they were under the influence of intoxicating liquor or
if a chemical test revealed a BAC of 0.10 or more (within four hours
after the alleged offense). This offense was a Class A misdemeanor and
was subject to at least 72 hours of imprisonment and a fine of not less
than $250.
Under Alaska's new law, people commit the crime of driving while
intoxicated if they operate or drive a motor vehicle while they are
under the influence of intoxicating liquor or if a chemical test
reveals a BAC of 0.08 or more (within four hours after the alleged
offense). This offense is a Class A misdemeanor and is subject to not
less than 72 hours of imprisonment and a fine of not less than $250.
In summary, Alaska's new 0.08 law retained the same penalties as
those previously imposed on the State's 0.10 law. Indeed, the new law
merely changed the State's legal limit from 0.10 to 0.08 BAC.
Accordingly, the agency concluded that Alaska's new 0.08 BAC offense
was equivalent to the standard driving while intoxicated offense in the
State.
Demonstrating Compliance
A. Sanction Program
Section 351 provides that funds will be withheld from apportionment
from noncomplying States beginning in FY 2004. To avoid the
withholding, each State would be required by this proposed regulation
to submit a certification. Under the agencies' proposal, States would
be required to submit their certifications on or before September 30,
2003, to avoid the withholding from apportionment of FY 2004 funds on
October 1, 2003. The agencies propose to permit (and strongly
encourage) States to submit certifications in advance.
States that are found in noncompliance with these requirements in
any fiscal year would be required to submit a certification to avoid
the withholding of funds from apportionment in the following fiscal
year. To avoid the withholding in that fiscal year, these States would
be required to submit a certification demonstrating compliance before
the last day (September 30) of the previous fiscal year.
Certifications submitted under this part would provide agencies
with the basis for finding States in compliance with the Section 351
requirements. The agencies are proposing that the certification must
consist of: (1) 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. Sec. 163 and 23 CFR Part 1225; and (2) citations to the
State's conforming 0.08 BAC per se law, including all applicable
definitions and provisions of the State's criminal code and, if the
State has an ALR law, all applicable provisions of that law, as well.
Once a State is determined by the agencies to be in compliance with
the requirements of Section 163, the agencies propose that the State
would not be required to submit certifications in subsequent fiscal
years, unless the State's law had changed. This proposal specifies that
it would be the
[[Page 6095]]
responsibility of the States to inform the agencies of any such change
in a subsequent fiscal year, by submitting an amendment or supplement
to its certification.
B. Incentive Grant Program
In this notice, the agencies propose to simplify the certification
process for the incentive grant program. States that are receiving
their first grant under the incentive grant program, must submit a
certification consisting of: (1) 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; (2) a
statement 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; and (3) citations to the State's
conforming 0.08 BAC per se law, including all applicable definitions
and provisions of the State's criminal code and, if the State has an
ALR law, all applicable provisions of that law, as well.
To receive subsequent-year grants under this program, a State must
submit a certification consisting of: (1) A statement from an
appropriate State official, stating either that the State either has
amended or has not changed its 0.08 BAC per se law; (2) a statement
that the State is enforcing the law; and (3) a statement 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. Citations to the States' laws will not be required for
subsequent-year certifications.
For all States in compliance with the requirements of Section 163
in FY 2003, certifications submitted for the incentive grant program
will apply toward avoiding the withholding of apportionment funds in FY
2004. No further certification is necessary from these States. To
qualify for an incentive grant in any fiscal year, the regulations
would continue to provide that the certifications must be received by
July 15.
Certification Requirements
As stated previously, under the agencies' proposal, States would be
required to submit a conforming certification on or before July 15, to
receive an incentive grant in a fiscal year; and on or before September
30, to avoid the withholding of funds in a fiscal year.
Advance Notice of Apportionments Under the Sanction Program
To avoid a sanction beginning in FY 2004, the agencies propose that
States would be required to enact and make effective a conforming 0.08
BAC law and submit a conforming certification on or before the last day
(September 30) of the previous fiscal year.
However, NHTSA and the FHWA expect that States will want to know
well in advance of the September 30 deadline whether their laws meet
the requirements of Section 163 and its implementing regulations.
Accordingly, the agencies encourage States to submit their laws for
review as quickly as they can. More importantly, the agencies encourage
States that are considering proposed 0.08 BAC legislation to request
reviews from the agencies while the legislation is still pending. The
agencies will review the legislation and determine whether it would
conform to the Federal requirements if enacted without change, thus
avoiding a situation whereby a State unintentionally enacts a non-
conforming 0.08 BAC law and then is unable to meet the Section 163
requirements. Requests should be submitted through NHTSA's Regional
Administrators, who will refer the requests to appropriate NHTSA and
FHWA offices for review.
To ensure that the States are advised of their status under the
Section 163 program well in advance of any withholding, the agencies
propose to notify States of their compliance or non-compliance with the
requirements of Section 163 through FHWA's normal certification of
apportionments process. Under this process, States are advised in
advance of the amount of funds expected to be withheld from their
apportionments in the upcoming fiscal year. The advance notice normally
is issued not later than ninety days prior to the date on which the
funds are to be apportioned. (Since funds normally are apportioned on
October 1 of each year, the advance notice ordinarily is issued on or
about July 1 of each year.)
Under the agencies' proposal, if the agencies have not received a
law and certification from a State and determined that they conform
with the requirements of Section 163 and its implementing regulations
before June 15, the agencies would make an initial determination that
the State is in non-compliance with Section 163, and the State would be
advised in FHWA's advance notice of apportionments of the amount of
funds expected to be withheld from the State in the following fiscal
year.
Accordingly, if States wish to avoid receiving an advance notice of
apportionments, based on an initial determination that the State is in
non-compliance with Section 163, the State should submit a conforming
law and certification to the agencies well in advance of June 30.
Each State that receives an advance notice of non-compliance with
the requirements of Section 163 will have an opportunity to rebut the
agencies' initial determination. In addition, these States will be
notified of the agencies' final determination of compliance or non-
compliance as part of the final notice of apportionments (which
normally is issued on October 1 of each year).
Period of Availability for Funds
Section 351 provides an incremental approach to the withholding of
funds from apportionment for noncompliance. 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 reaches eight percent in FY 2007 and thereafter.
See Table 2.
In addition, if a State comes into compliance with the requirements
of Section 163 on or before September 30, 2007, the funds withheld from
apportionment would be restored to the State. Specifically, Section 351
provides that, ``If within four years from the date that the
apportionment for any State is reduced in accordance with this section
the Secretary determines that such State has enacted and is enforcing a
provision described in section 163(a) of chapter 1 of title 23, United
States Code, the apportionment of such State shall be increased by an
amount equal to such reduction.''
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 will begin to lapse and will no longer be available for
apportionment. Section 351 provides that, ``If at the end of such four-
year period, any State has not enacted and is not enforcing a provision
described in section 163(a) of title 23, United States Code, any
amounts so withheld shall lapse.''
[[Page 6096]]
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.
------------------------------------------------------------------------
Comments
Interested persons are invited to comment on this notice of
proposed rulemaking. 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. See 49 CFR 553.21. This limitation is
intended to encourage commenters to detail their primary arguments in a
concise fashion.
You may submit your comments by one of the following methods:
(1) By mail to: Docket Management Facility, Docket No. NHTSA-01-
XXXX, DOT, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590;
(2) By hand delivery to: Room PL-401 on the Plaza level of the
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9
a.m. and 5 p.m., Monday through Friday;
(3) By fax to the Docket Management Facility at (202) 493-2251; or
(4) By electronic submission: log onto the DMS website at http://dms.dot.gov
and click on ``Help and Information'' or ``Help/Info'' to
obtain instructions.
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.
You may review submitted comments in person at the Docket
Management Facility located at Room PL-401 on the Plaza level of the
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9
a.m. and 5 p.m., Monday through Friday. You may also review submitted
comments on the Internet by taking the following steps:
(1) Go to the DMS web page at http://dms.dot.gov/search/.
(2) On that page, click on ``search''.
(3) On the next page (http://dms.dot.gov/search/) type in the
four digit docket number shown at the beginning of this notice.
Click on ``search''.
(4) On the next page, which contains docket summary information
for the docket you selected, click on the desired comments. You may
also download the comments. Although the comments are imaged
documents, instead of word processing documents, the ``pdf''
versions of the documents are word searchable.
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.
Regulatory Analyses and Notices
Executive Order 12988 (Civil Justice Reform)
This proposed rule would 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.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
Executive Order 12866, ``Regulatory Planning and Review'' (58 FR
51735, October 4, 1993), provides for making determinations whether a
regulatory action is ``significant'' and therefore subject to Office of
Management and Budget (OMB) review and to the requirements of the
Executive Order.
The Order defines a ``significant regulatory action'' as one that
is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations or
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
The agency has considered the impact of this rulemaking action
under Executive Order 12866 and the Department of Transportation's
regulatory policies and procedures and determined that it is
``significant'' because it involves the withholding of Federal-aid
highway funds to any State that has not enacted and is not enforcing a
0.08 BAC law by FY 2004, a matter of substantial interest to the public
and to Congress. Further, there is a possibility that the State
withholdings resulting from this proposed rule could total from $100
million to $400 million. See NHTSA, Preliminary Regulatory Evaluation,
0.08 Sanction Program 20. Thus, this rulemaking could be economically
significant under Executive Order 12866, i.e., have an annual effect on
the economy of $100 million or more. Accordingly, a preliminary
regulatory evaluation has been prepared to review costs and benefits
imposed on States to enact a 0.08 BAC law. The preliminary regulatory
evaluation has been placed in the docket for this proposed rule.
The preamble to this rulemaking indicates that the adoption of 0.08
BAC laws could save 590 lives each year. This ``benefit'' is based upon
a research study published in 1999 that measured the effects of 0.08
BAC laws by reviewing the fatality numbers in States with conforming
0.08 BAC laws at the time this study was conducted (15 States). This
study concluded that 0.08 BAC laws might reduce alcohol-related
fatalities by approximately 8 percent.
The preliminary regulatory evaluation uses a slightly different
measure to determine the ``benefit'' of adoption of 0.08 BAC laws. As
explained in more detail below, the ``benefit'' was determined in the
preliminary regulatory evaluation by measuring the fatality numbers for
the States that had not enacted conforming 0.08 BAC laws before the
creation of the 0.08 sanction program in October 2000 (32 States),
using an estimate that 0.08 BAC laws might reduce alcohol-related
fatalities by 7 percent. This estimate was derived from a recent Center
for Disease Control (CDC)-sponsored independent task force study, which
calculated 7 percent as the median effectiveness percentage for 0.08
BAC laws. Using these measures, the preliminary regulatory evaluation
concludes that 616 lives (are being/could be) saved each year by the
adoption of 0.08 BAC laws. See Preliminary Regulatory Evaluation,
supra, at 1.
A. Benefits
The preliminary regulatory evaluation concludes that changing the
level of
[[Page 6097]]
alcohol from 0.10 to 0.08 in State per se laws will result in fewer
alcohol-related traffic crashes and fatalities. Specifically, the
preliminary regulatory evaluation cites a review performed by a CDC-
sponsored independent task force, to support the conclusion that 0.08
BAC laws may reduce alcohol-related fatalities by 7 percent each year.
This 7 percent reduction could annually prevent 616 fatalities, over
13,800 non-fatal injuries, and over 50,000 damaged vehicles involved in
over 30,000 property-damage only (PDO) crashes. See Preliminary
Regulatory Evaluation, supra, at 23.
B. Costs
The regulatory evaluation concludes that the impact of 0.08 BAC
laws will depend on drinking drivers' perceptions that they are more
likely to be caught over the limit, and thereby reduce the amount they
drink before driving. To successfully accomplish this goal, States will
develop public information campaigns, both at the time of legislative
debate to inform the public of the need for the law and later during
enforcement and prosecution of the law to help achieve compliance.
Typically, States will use unpaid media exposure, such as news stories
and public service messages, however, some States will implement public
information campaigns that involve paying for airtime on radio and
television and/or advertising space in print media and billboards. Both
approaches would require the time of State and local workers,
especially in the State Highway Safety Office, to develop and manage
these public information programs.
To mitigate costs incurred in educating the public, States may use
Federal highway safety grant funds to pay for the development of public
information programs and for airtime and print advertising space. In
addition, NHTSA provides sample press release kits to aid communities
in publicizing new programs through newspapers, TV and radio.
Aside from advertising costs, the preliminary regulatory evaluation
expects that the costs for implementing this proposed rule will be
minimal and consist of changes that States make as a matter of course
when amending a State law (e.g., updating driver handbooks and forms).
C. Conclusion
The preliminary regulatory evaluation notes that it is difficult to
measure the effects of 0.08 BAC laws. This difficulty arises because
impaired-driving laws are often passed concurrently or within the same
year. In addition, the degree of the law's enforcement, and especially
the publicity surrounding that enforcement, can vary significantly and
such variability can influence the law's effectiveness. Nonetheless,
the preliminary regulatory evaluation concludes that 616 lives (are
being/could be) saved each year by the adoption of 0.08 BAC laws.
Regulatory Flexibility Act
The Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612)
requires an agency to review regulations to assess their impact on
small entities unless the agency determines that a rule is not expected
to have a significant impact on a substantial number of small entities.
We hereby certify that the rule proposed in this notice of proposed
rulemaking will not have a significant economic impact on a substantial
number of 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 passed 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. See Preliminary Regulatory Evaluation, supra, at 21.
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 17 States affected, only 16 percent of all State highway
expenditures. Accordingly, even if the sanction was 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
0.77 percent (in Massachusetts) to 3.62 percent (in Montana). Further,
most of these businesses do not rely totally on highway construction
contracts for their revenue. Based on these considerations, the
preliminary regulatory evaluation finds that this action would not
result in a significant impact on the small businesses involved. See
Preliminary Regulatory Evaluation, supra, at 21.
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.
National Environmental Policy Act
The agencies have analyzed this proposed action for the purpose of
the National Environmental Policy Act (42 U.S.C. 4321 et seq.) and have
determined that it would not have any significant impact on the quality
of the human environment.
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 proposed 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.
Executive Order 13132 (Federalism)
Executive Order 13132 requires the agencies to develop an
accountable process to ensure ``meaningful and timely input by State
and local officials in the development of regulatory policies that have
Federalism implications.'' ``Policies that have Federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.''
Under Executive Order 13132, the agency may not issue a regulation
with
[[Page 6098]]
Federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, the agency consults with
State and local governments, or the agency consults with State and
local officials early in the process of developing the proposed
regulation. The agencies also may not issue a regulation with
Federalism implications that preempts State law unless the agency
consults with State and local officials early in the process of
developing the proposed regulation.
We have analyzed this proposed rule in accordance with the
principles and criteria set forth in Executive Order 13132 and have
determined that this proposal may have Federal implications. We intend
to consult with State and local officials about this proposal, and we
will include a Federalism summary impact statement in the preamble to
the final rule. NHTSA seeks comments on the federalism impact of this
proposal.
Executive Order 13175 (Consultation and Coordination with Indian Tribal
Governments)
The agencies have analyzed this proposed rule under Executive Order
13175, and believe that the proposed action would not have a
substantial direct effect on one or more Indian tribes; would not
impose substantial direct compliance costs on Indian tribal
governments; and would 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.
In consideration of the foregoing, the agencies propose to revise
23 CFR part 1225 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 fifty 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 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
[[Page 6099]]
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.
(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 are
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 and FHWA Division Administrator, the
amounts of the State's apportionment that will be obligated to highway
safety program areas and to Federal-aid highway projects.
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 of 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. The
certifying statement should 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, (citations to State law).
(c) 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.
(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
paragraphs (a) and (b) of this section if the State's 0.08 BAC per se
law changes.
(e) FY 2003 Certifications.
(1) Any State that submits a certification of compliance 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. No further
certification is necessary from these States.
(2) Any State that submits a certification of compliance 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. No
further certification is necessary from these States.
Sec. 1225.8 Funds withheld from apportionment.
(a) Beginning in fiscal year 2004, the Secretary shall withhold two
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
[[Page 6100]]
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 four 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 six 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 eight 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 four 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.
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 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, beginning with FY 2004, based on a
preliminary review of certifications received, States that are
determined to be in noncompliance with 23 U.S.C. 163 and this part,
will be advised of the amount of funds expected to be withheld through
FHWA's advance notice of apportionments, normally not later than ninety
days prior to final apportionment.
(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, within 30 days of its receipt of the advance
notice of apportionments, submit documentation showing why it is in
compliance. 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
------------------------------------------------------------------------
Withhold
Fiscal year (percent) Lapse (percent)
------------------------------------------------------------------------
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: January 31, 2003.
Mary E. Peters,
Administrator, Federal Highway Administration.
Jeffrey W. Runge,
Administrator, National Highway Traffic Safety Administration.
[FR Doc. 03-2790 Filed 2-5-03; 8:45 am]
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