[Federal Register Volume 59, Number 152 (Tuesday, August 9, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19430]


[[Page Unknown]]

[Federal Register: August 9, 1994]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

23 CFR Part 1313

[Docket No. 89-02; Notice 6]
RIN 2127-AD01

 

Incentive Grant Criteria for Drunk Driving Prevention Programs

AGENCY: National Highway Traffic Safety Administration (NHTSA) 
Department of Transportation.

ACTION: Interim final rule; request for comments.

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SUMMARY: This notice amends Part 1313 with respect to the criterion for 
a supplemental grant for States that deem persons under age 21 who 
operate a motor vehicle with a BAC of 0.02 or greater to be driving 
while intoxicated. The amendment reflects the agency's experience 
reviewing State laws under this grant criterion during fiscal years 
1992-1994 and will provide States with additional flexibility in their 
ability to qualify for funds under this supplemental grant.
    The agency is issuing the amendment as an interim final rule to 
provide guidance to the States before the end of fiscal year 1994. 
NHTSA requests comments on the rule. The agency will publish a notice 
responding to the comments received and, if appropriate, will amend 
provisions of the regulation.

DATES: This interim final rule becomes effective August 9, 1994. 
Comments on this interim rule are due no later than October 11, 1994.

ADDRESSES: Written comments should refer to the docket number and the 
number of this notice and be submitted (preferably in ten copies) to: 
Docket Section, National Highway Traffic Safety Administration, Room 
5109, Nassif Building, 400 Seventh Street, S.W., Washington, D.C. 
20590. (Docket hours are from 9:30 a.m. to 4 p.m.)

FOR FURTHER INFORMATION CONTACT:
Ms. Marlene Markison, Chief, Program Support Staff, NRO-10, National 
Highway Traffic Safety Administration, 400 Seventh Street, S.W., 
Washington, DC 20590; telephone (202) 366-0166 or Mr. James Hedlund, 
Director, Office of Alcohol and State Programs, NTS-20, National 
Highway Traffic Safety Administration, 400 Seventh Street, S.W., 
Washington, D.C. 20590, telephone (202) 366-2753.

SUPPLEMENTARY INFORMATION: The Anti-Drug Abuse Act of 1988, Pub. L. 
100-690, was signed into law on November 18, 1988. Subtitle A of Title 
IX of the Act, entitled the Drunk Driving Prevention Act of 1988, 
amended chapter 4 of title 23, United States Code, by adding section 
410, which established an incentive grant program under which States 
could qualify for basic and supplemental grant funds for adopting and 
implementing comprehensive drunk driving prevention programs which met 
certain specified statutory criteria.
    On January 12, 1990, NHTSA published a final rule in the Federal 
Register (55 FR 1185) to implement this new incentive grant program, 23 
CFR Part 1313. When the regulation had been in place for nearly a year, 
and no State had submitted an application to NHTSA for funding, 
Congress made technical corrections to the statutory requirements 
contained in section 410. These technical corrections, contained in 
section 336 of Public Law 101-516, were signed into law on November 5, 
1990. Corresponding changes were made to Part 1313 by final rule 
published in the Federal Register on May 1, 1991 (56 FR 19930). The 
agency approved two State applications for section 410 funding under 
this final rule.
    Section 2004 of the Intermodal Surface Transportation Efficiency 
Act of 1991 (ISTEA), signed into law on December 18, 1991, further 
revised section 410. These revisions, among other things, provided for 
additional basic and supplemental grant criteria and changed the 
formula used to determine the amount of section 410 incentive grants. 
An interim final rule (57 FR 29002) was published in the Federal 
Register on June 30, 1992, to change Part 1313 to conform to these 
amendments, and to request public comments.
    On October 6, 1992, the Department of Transportation and Related 
Agencies Appropriations Act for 1993 (P.L. 102-388) was signed into 
law. It contained additional technical corrections to section 410. On 
April 23, 1993, a final rule (58 FR 21649) was published responding to 
the comments submitting to the June 1992 interim final rule and the 
October 1992 technical corrections.
    During FY 1992, the agency received section 410 grant applications 
from 18 States; 17 were approved. During FY 1993, the agency received 
section 410 grant applications from 24 States; all of these 
applications were approved. NHTSA continues to receive and approve 
State applications in FY 1994.

Section 410 Criteria

    To qualify for funding under section 410, a State must qualify 
first for a basic grant by meeting five or more out of six basic 
criteria. The criteria include: an expedited driver's license 
suspension or revocation system; a per se law (at 0.10 BAC in the first 
three fiscal years in which the State receives a grant and 0.08 BAC in 
subsequent years); a statewide program for stopping motor vehicles; a 
self-sustaining drunk driving prevention program; a minimum drinking 
age prevention program; and mandatory sentencing requirements.\1\
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    \1\To receive a basic grant, States that qualified for section 
410 funding in FY 1992 need only demonstrate compliance with four 
out of the five criteria in effect at that time, namely all the 
basic criteria listed above except for mandatory sentencing.
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    If the State qualifies for a basic grant, it may also seek to 
qualify for funds under one or more of seven supplemental grants. The 
supplemental grants include: per se law for persons under age 21; 
program making unlawful open containers and consumption of alcohol in 
motor vehicles; suspension of registration and return of license plate 
program; mandatory alcohol concentration testing program; drugged 
driving prevention; per se level of 0.08 (in the first three fiscal 
years in which the State receives a grant); and video equipment 
program.

Per se Law for Persons Under Age 21 Supplemental Grant

    To qualify for the ``per se law for persons under age 21'' 
supplemental grant, Section 410 requires that the State must be 
``eligible for a basic grant in the fiscal year and [provide] that any 
person under age 21 with a blood alcohol concentration of 0.02 percent 
or greater when driving a motor vehicle shall be deemed to be driving 
while intoxicated.''
    In its interim final rule, dated June 30, 1992, NHTSA explained:

    In other words, States must establish a 0.02 per se law for 
persons under the age of 21, that makes driving with a BAC of 0.02 
percent or above itself an offense for such persons. (57 F.R. 29007)

    The agency discussed specifically, in the interim final rule, that 
it would treat the 0.02 per se criterion under section 410 differently 
than it had treated the 0.10 per se criterion under its section 408 
program. It explained that, under section 408, States were required to 
establish 0.10 as the per se level for purposes of both criminal and 
licensing sanctions. NHTSA clarified that it did not expect States, 
under section 410, to apply criminal sanctions to these underage 
drivers at the 0.02 level. To qualify under this supplemental grant, 
NHTSA stated that it was sufficient for States to apply licensing 
sanctions to these offenders:

    Under section 408, to be eligible for a basic grant, States are 
required to establish 0.10 as the illegal per se level for the 
purpose of both administrative and criminal sanctions. The section 
410 criteria for a basic grant, described elsewhere in today's final 
rule, continue to call for States to adopt per se levels at 0.10 and 
0.08 for administrative and criminal sanctions. However, the agency 
believes it is unwarranted to require that States apply criminal 
sanctions to youth found to be driving with an alcohol concentration 
level of 0.02. NHTSA believes that licensing sanctions are 
sufficiently effective for these offenses. (57 FR 29008)

    Accordingly, the regulation provided that, to qualify for this 
supplemental grant, a State must ``provide that any person under age 21 
with an alcohol concentration of 0.02 percent or greater when driving a 
motor vehicle shall be deemed to be driving while intoxicated for the 
purpose of administrative sanctions.''
    To demonstrate compliance with the criterion, the regulation 
provides that a State must ``submit a copy of its law adopting this 
requirement.''
    NHTSA has received a number of applications for funding and 
requests for interpretation under this provision of the regulation. 
Based on the language in this provision, we determined that, to qualify 
for a ``per se law for persons under age 21'' supplemental grant, a 
State's law must provide that 0.02 BAC underage offenders must be 
treated the same as other (0.10) DUI offenders would be treated under 
the State's administrative license revocation (ALR) law. However, a 
number of the States that have applied for this supplemental grant 
either did not have an ALR law at all or did not have an ALR law that 
qualifies under section 410. NHTSA determined that these States need 
not provide for identical sanctions, but their laws must require a 
minimum 30-day license suspension as an administrative sanction for 
0.02 underage offenders, and the suspension must be mandatory.

Changes to the Regulation

    Some States have objected to the application of this portion of 
Part 1313, and the agency has become concerned that the regulation, as 
currently written, creates some inequity and unnecessary inflexibility.
    For example, under the regulation, a State with an ALR law that 
qualifies under section 410 would not be eligible to receive a 
supplemental grant for a law that establishes a 60-day driver's license 
sanction for persons under age 21 who operate a motor vehicle with a 
BAC of 0.02. (The State would not be eligible because, to qualify for 
section 410, its ALR law would be required to establish a 90-day 
suspension for first offenders one a one-year suspension for subsequent 
offenders. By applying a 60-day suspension to underage offenders at 
0.02, the State would not be treating these offenders as other (0.10 
or, in some cases, 0.08) DUI offenders.)
    However, a State without an ALR law, or a State with an ALR that 
does not qualify under section 410 would be eligible to receive a 
supplemental grant for a law that establishes a 60-day driver's license 
sanction for persons under age 21 who operate a motor vehicle with a 
BAC of 0.02. (The State would be eligible because the State need only 
provide for a mandatory 30-day suspension.)
    To rectify this inequity, this interim final rule amends Part 1313 
to provide that any State (whether it has an ALR law that conforms to 
section 410 or not) need only provide for a 30-day suspension or 
revocation for persons under the age of 21 who operate a motor vehicle 
with a BAC of 0.02 or greater. The 30-day suspension or revocation 
period must be a mandatory, hard suspension or revocation (i.e., it may 
not be subject to hardship, conditional or provisional driving 
privileges).
    To demonstrate compliance, the regulation currently provides that a 
State must submit a copy of its law. Other section 410 criteria, such 
as expedited license suspension and mandatory sentencing requirements 
provide States with additional flexibility by permitting them to 
demonstrate compliance as either ``Law'' or ``Data'' States.
    NHTSA has decided to afford this flexibility to States under this 
criterion as well. Accordingly, this interim final rule amends the 
regulation to provide that States may demonstrate compliance with the 
``per se law for persons under age 21'' supplemental grant as either 
``Law'' or ``Data'' States.
    Under the amended regulation, a ``Law State'' is a State that has 
laws, regulations, or binding policy directives which, on their face, 
meet each element of the criterion. A ``Data State'' is a State that 
has laws, regulations, or binding policy directives which, on their 
face, meet each element, except that they need not specifically provide 
for a 30-day hard suspension.
    To demonstrate compliance, under the regulation as amended, a ``Law 
State'' must submit only the law, regulation or binding policy 
directive itself governing its 0.02 per se law for persons under age 
21. It need not submit data. To demonstrate compliance, a ``Data 
State'' must submit its law, regulation, or binding policy directive 
governing its 0.02 per se law for persons under age 21. It must also 
submit data demonstrating that the average length of hard suspensions 
for offenders under the State's per se law for persons under age 21 
meets or exceeds 30 days.
    In the course of reviewing State applications and requests for 
interpretations, NHTSA has been asked to consider whether it would 
accept 0.02 ``per se'' laws which require conviction prior to imposing 
a license suspension or revocation, or laws which provide that the 0.02 
BAC offense may be enforced only as a secondary violation, when the 
driver of a motor vehicle has been cited for a violation of some other 
offense.
    To qualify under this supplemental criterion, the regulation as 
amended requires that a State provide for the temporary debarring of 
all driving privileges for a term of not less than 30 days. It does not 
require that the debarring of driving privileges occur through 
``administrative sanctions.'' Accordingly, the agency will accept State 
laws that require a conviction prior to suspension or revocation. It 
will also accept State laws that provide for an administrative 
suspension or revocation. The agency will not accept, however, 
secondary enforcement laws. A secondary enforcement provision in a 0.02 
``per se'' law will render a State ineligible under this supplemental 
criterion as either a ``Law'' or a ``Data State.''

Interim Final Rule

    This notice is published as an interim final rule, without prior 
notice and opportunity to comment. Because this regulation relates to a 
grant program, the requirements of the Administrative Procedure Act 
(APA), 5 U.S.C. 553, are not applicable. Moreover, even if the notice 
and comment provisions of the APA did apply, the agency believes there 
is good cause for finding that providing notice and comment in 
connection with this rulemaking action is impracticable, unnecessary 
and contrary to the public interest, since it would prevent States from 
qualifying for grant funds in fiscal year 1994.
    This finding is based also on the agency's view that the amendments 
made in this interim final rule rectify an inequity in the current 
regulation, provide additional flexibility for the States and are 
consistent with other provisions in the section 410 implementing 
regulation, which was promulgated subject to notice and a full 
opportunity for the public to comment. Accordingly, there would be 
little benefit gained by following the notice and comment procedures 
with regard to the revisions made by today's interim final rule.
    As an interim final rule, this regulation is fully in effect and 
binding after its effective date. No further regulatory action by NHTSA 
is necessary to make the rule effective. However, in order to benefit 
from comments which interested parties and the public may have, the 
agency is requesting that comments be submitted to the docket for this 
notice. All comments submitted in response to this notice, in 
accordance with the procedures outlined below, will be considered by 
the agency. Following the close of the comment period, NHTSA will 
publish a notice responding to the comments and, if appropriate, NHTSA 
will amend the provisions of this rule.

Written Comments

    Interested persons are invited to comment on this interim final 
rule. It is requested, but not required, that ten copies be submitted.
    All comments must be limited to 15 pages in length. Necessary 
attachments may be appended to those submissions without regard to the 
15-page limit. (49 CFR Sec. 553.21.) This limitation is intended to 
encourage commenters to detail their primary arguments in a concise 
fashion.
    Written comments to the public docket must be received by October 
11, 1994. 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. Following the close of the comment period, 
NHTSA will publish a notice responding to the comments and, if 
appropriate, NHTSA will amend the provisions of this rule. NHTSA will 
continue to file relevant material in the docket as it becomes 
available after the closing date, and it is recommended that interested 
persons continue to examine the docket for new material.
    Those persons desiring to be notified upon receipt of their 
comments in the docket should enclose, in the envelope with their 
comments, a self-addressed stamped postcard. Upon receiving the 
comments, the docket supervisor will return the postcard by mail.
    Copies of all comments will be placed in Docket 89-02; Notice 6 of 
the NHTSA Docket Section in Room 5109, Nassif Building, 400 Seventh 
Street, SW., Washington, DC 20590.
    This interim final rule does not have any preemptive or retroactive 
effect. It imposes no requirements on the States, but rather encourages 
States to adopt and implement comprehensive drunk driving prevention 
program, by offering incentive grant funds. The enabling legislation 
does not establish a procedure for judicial review of final rules 
promulgated under its provisions. There is no requirement that 
individuals submit a petition for reconsideration or other 
administrative proceedings before they may file suit in court.

Regulatory Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    NHTSA has considered the impact of this rulemaking action under 
E.O. 12866 and the Department of Transportation's regulatory policies 
and procedures. This rulemaking document was not reviewed by the Office 
of Management and Budget under E.O. 12866, ``Regulatory Planning and 
Review.'' This action has been determined to be not ``significant'' 
under the Department of Transportation's regulatory policies and 
procedures.
    State participation in the section 410 program is voluntary. 
Accordingly, a full regulatory evaluation is not necessary. Moreover, 
this rule makes only minor amendments to the existing section 410 
implementing regulation to provide additional flexibility to States.
    When the agency originally promulgated a regulation to implement 
the section 410 program on January 12, 1990 (55 FR 1185), it determined 
that the rulemaking should be classified as significant under the 
Department's regulatory policies and procedures. A regulatory 
evaluation was prepared at that time and placed in the public docket 
(Docket No. 89-02; Notice 2). Persons interested in reviewing this 
document should request it by writing to NHTSA's Docket Section, room 
5109, 400 Seventh Street, S.W., Washington, D.C. 20590, or by calling 
the Docket Section at (202) 366-4949.

Regulatory Flexibility Act

    Since this matter relates to grants, the notice and comment 
requirements established in the Administrative Procedure Act, 5 U.S.C. 
553, are not applicable. Because the agency is not required to publish 
a notice of proposed rulemaking regarding this rule, the agency is not 
required to analyze the effect of this rule on small entities, in 
accordance with the Regulatory Flexibility Act. The agency has 
nonetheless evaluated the effects of this interim final rule on small 
entities. Based on the evaluation, I certify that this rule will not 
have a significant economic impact on a substantial number of small 
entities. States will be recipients of any funds awarded under the 
regulation. Accordingly, the preparation of a Regulatory Flexibility 
Analysis is unnecessary.

Paperwork Reduction Act

    The requirements relating to the regulation that this rule is 
amending that States retain and report to the Federal government 
information which demonstrates compliance with drunk driving prevention 
incentive grant criteria, are considered to be information collection 
requirements, as that term is defined by the Office of Management and 
Budget (OMB) in 5 CFR Part 1320.
    Accordingly, these requirements have been submitted previously to 
and approved by OMB, pursuant to the Paperwork Reduction Act (44 U.S.C. 
3501, et seq.). These requirements have been approved through 11/30/95; 
OMB No. 2127-0501.

National Environmental Policy Act

    The agency has analyzed this action for the purpose of the National 
Environmental Policy Act, and has determined that it will not have a 
significant effect on the human environment.

Executive Order 12612 (Federalism)

    This rulemaking action has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12612, and it has 
been determined that it will have no federalism implication that 
warrants the preparation of a federalism assessment. The section 410 
grant program is entirely optional for the States. Moreover, this 
action provides increased flexibility to the States.

Executive Order 12778 (Civil Justice Reform)

    This amendment to the regulation does not have any preemptive or 
retroactive effect. It imposes no requirements on the States, but 
rather encourages States to establish drunk driving prevention programs 
by providing incentive grant funds. Participation in this program is 
entirely optional. The enabling legislation does not establish a 
procedure for judicial review of final rules promulgated under its 
provisions. There is no requirement that individuals submit a petition 
for reconsideration or other administrative proceedings before they may 
file suit in court.

List of Subjects in 23 CFR Part 1313

    Alcohol and alcoholic beverages, Drugs, Grant programs, 
Transportation, Highway safety.

    In consideration of the foregoing, NHTSA amends 23 CFR Part 1313 as 
set forth below.

PART 1313--INCENTIVE GRANT CRITERIA FOR DRUNK DRIVING PREVENTION 
PROGRAMS

    1. The authority citation for Part 1313 continues to read as 
follows:

    Authority: 23 U.S.C. 410; delegation of authority at 49 CFR 
1.50.

    2. Section 1313.6(a) is revised to read as follows:


Sec. 1313.6  Requirements for supplemental grants.

    (a) Per se law for persons under age 21. (1) To qualify for a 
supplemental grant of 5 percent of the State's 23 U.S.C. 402 
apportionment for FY 1992, a State must have in place and implement or 
adopt and implement a drunk driving prevention program which meets the 
requirements of Sec. 1313.5, and provide that any person under age 21 
with an alcohol concentration of 0.02 percent or greater when driving a 
motor vehicle shall be deemed to be driving while intoxicated and shall 
be subject to the temporary debarring of all driving privileges for a 
term of not less than 30 days.
    (2)(i) To demonstrate compliance in the first and in subsequent 
years the State receives a supplemental grant under this paragraph, a 
Law State shall submit a copy of the law, regulation or binding policy 
directive implementing or interpreting the law or regulation, which 
provides for each element of the per se law for persons under age 21 
criterion.
    (ii) For the purpose of this paragraph, ``Law State'' means a State 
that has a law, regulation or binding policy directive implementing or 
interpreting an existing law or regulation which provides for each 
element of the per se law for persons under age 21 criterion.
    (3)(i) To demonstrate compliance in the first and in subsequent 
years the State receives a supplemental grant under this paragraph, a 
Data State shall submit a copy of the law, regulation or binding policy 
directive implementing or interpreting the law or regulation, which 
provides for each element of the per se law for persons under age 21 
criterion and data showing that the average length of the suspension 
term for offenders under this law meets or exceeds 30 days.
    (ii) The State can provide the necessary data based on a 
representative sample. Data on the average length of the suspension 
term must not include license suspension periods which exceed the terms 
actually prescribed by the State, and must reflect terms only to the 
extent that they are actually completed.
    (iii) For the purpose of this paragraph, ``Data State'' means a 
State that has a law, regulation or binding policy directive 
implementing or interpreting an existing law or regulation which 
provides for each element of the per se law for persons under age 21 
supplemental criterion, except that it does not specifically provide 
for the temporary debarring of all driving privileges for a term of not 
less than 30 days.
* * * * *
    Issued on: August 4, 1994.
Christopher A. Hart,
Deputy Administrator, National Highway Traffic Safety Administration.
[FR Doc. 94-19430 Filed 8-4-94; 4:14 pm]
BILLING CODE 4910-59-M