[Federal Register Volume 61, Number 46 (Thursday, March 7, 1996)]
[Rules and Regulations]
[Pages 9101-9104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5131]



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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

23 CFR Part 1313

[Docket No. 89-02; Notice 8]
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 interim final rule amends the regulations on incentive 
grant criteria for drunk driving prevention programs to reflect changes 
that were made to the section 410 program by the National Highway 
System Designation Act of 1995 (NHS Act). As a result of this interim 
final rule, the Section 410 supplemental grant criterion that requires 
that States ``deem persons under age 21 who operate a motor vehicle 
with a BAC of 0.02 or greater to be driving while intoxicated'' has 
been changed to a basic grant criterion. In addition, the regulation 
now provides for an alternative method for some States to demonstrate 
compliance with the basic grant criterion that requires that States 
have a ``statewide program for stopping vehicles.''
    In today's Federal Register, NHTSA and the Federal Highway 
Administration (FHWA) have published a separate notice of proposed 
rulemaking (NPRM), which contains a proposal for implementing a new 
``zero tolerance'' sanction program enacted by the NHS Act, which is 
similar to the Section 410 ``0.02 BAC'' basic grant criterion cited 
above. NHTSA requests comments regarding the changes made by this 
interim final rule, and regarding whether additional changes should be 
made to the Section 410 ``0.02 BAC'' basic grant criterion, as a result 
of the new ``zero tolerance'' sanction program.

DATES: This interim final rule becomes effective March 7, 1996. 
Comments on this interim rule are due no later than April 22, 1996.

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) 366-2121 
or Ms. Heidi L. Coleman, Assistant Chief Counsel for General Law, 
Office of Chief Counsel, NCC-30, National Highway Traffic Safety 
Administration, 400 Seventh Street, S.W., Washington, D.C. 20590, 
telephone (202) 366-1834.

SUPPLEMENTARY INFORMATION: Section 410, title 23, United States Code, 
as amended, established an incentive grant program under which States 
may qualify for basic and supplemental grant funds for adopting and 
implementing comprehensive drunk driving prevention programs that meet 
specified statutory criteria.
    On November 28, 1995, the National Highway System Designation Act 
of 1995 (NHS Act) was enacted into law. Section 324 of the NHS Act 
contained amendments to 23 U.S.C. 410.

Statewide Program for Stopping Motor Vehicles

    Before its amendment by the NHS Act, Section 410 contained a basic 
grant criterion requiring that States must provide for ``a statewide 
program for stopping motor vehicles.'' To qualify for a basic grant 
under this criterion, States were required to provide:


[[Page 9102]]


    A statewide program for stopping motor vehicles on a 
nondiscriminatory, lawful basis for the purpose of determining 
whether or not the operators of such motor vehicles are driving 
while under the influence of alcohol.

    On June 30, 1992, NHTSA issued an interim final rule to implement 
this provision. The preamble to the interim final rule stated:

    NHTSA is aware * * * that the courts in some States have 
declared the use of checkpoints or roadblocks to be unconstitutional 
under their State constitution [ and has, therefore, * * *] 
attempted in this final rule to provide some flexibility to enable 
these States to describe other Statewide programs for stopping motor 
vehicles, using alternative methods * * *
    The agency [, however,] expects most States will meet this 
criterion by describing their plans for conducting a Statewide 
checkpoint or roadblock program.

    Section 324(b)(1) of the NHS Act amended Section 410 by providing 
an alternative method of demonstrating compliance with this Section 410 
basic grant criterion, for those States in which checkpoints or 
roadblocks have been declared to be unconstitutional. Section 324(b)(1) 
provides:

    A State shall be treated as having met the requirement of this 
paragraph if--
    (i) the State provides to the Secretary a written certification 
that the highest court of the State has issued a decision indicating 
that implementation of subparagraph (A) would constitute a violation 
of the constitution of the State; and
    (ii) the State demonstrates to the satisfaction of the Secretary 
that--
    (I) the alcohol fatal crash involvement rate in the State has 
decreased in each of the 3 most recent calendar years for which 
statistics for determining such rate are available; and
    (II) the alcohol fatal crash involvement rate in the State has 
been lower than the average such rate for all States in each of such 
calendar years.

    As a result of the changes made by today's interim final rule, a 
State may demonstrate compliance with this criterion using an 
alternative method, under which the State must submit a certification 
that the highest court of the State has issued a decision, indicating 
that a Statewide program for the stopping of motor vehicles on a 
nondiscriminatory, lawful basis for the purpose of determining whether 
or not the operators of such motor vehicles are driving while under the 
influence of alcohol, would constitute a violation of the State's 
Constitution. The State must also provide a copy of the court's 
decision.
    NHTSA will then, based on data contained in the Fatal Accident 
Reporting System (FARS) and using NHTSA's method for estimating alcohol 
involvement, determine the alcohol involvement rate in fatal crashes in 
the State in each of the three most recent calendar years for which 
statistics for determining this rate are available and the average such 
rate for all States in each of these three years.
    The State will qualify, under this criterion, if NHTSA determines 
that the data show that the alcohol involvement rate in fatal crashes 
in the State has decreased in each of the three most recent calendar 
years for which statistics for determining such rate are available, and 
that the alcohol involvement rate in fatal crashes in the State has 
been lower than the average such rate for all States in each of such 
calendar years.

0.02 BAC Per Se Law for Persons Under Age 21

    Prior to the enactment of the NHS Act, Section 410 provided that, 
to qualify for basic grant funds, a State was required to meet five out 
of six basic grant criteria.1 If a State qualified for a basic 
grant, it could also seek to qualify for funds under one or more of 
seven supplemental grants. To qualify under the first of these seven 
supplemental grants, a State was required to 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.
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    \1\ To receive a basic grant, States that qualified for section 
410 funding in FY 1992 could demonstrate compliance with only four 
out of the five basic grant criteria that were in effect at that 
time.
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    Section 324(b)(2) of the NHS Act amended Section 410 by converting 
this ``0.02 BAC'' requirement from a supplemental to a basic grant 
criterion. Accordingly, as a result of the changes made by this interim 
final rule, the ``0.02 BAC'' requirement remains the same. However, it 
is removed from the list of supplemental grants (reducing the number of 
such grants from seven to six), and added to the list of basic grant 
criteria under Section 410 (increasing the total of basic grant 
criteria from six to seven).
    To qualify for basic grant funds, States must now meet five out of 
seven basic grant criteria.2 As before, if a State qualifies for a 
basic grant, it can also seek to qualify for funds under one or more of 
the supplemental grants. However, the number of supplemental grants has 
been reduced from seven to six.
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    \2\ To receive a basic grant, States that qualified for section 
410 funding in FY 1992 have two options. They may qualify either by 
demonstrating compliance with four out of the five basic grant 
criteria that were in effect at that time, or by demonstrating 
compliance with five out of the seven current basic grant criteria.
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Interim Final Rule

    This notice is published as an interim final rule. Accordingly, the 
changes to Part 1313 described above are fully in effect and binding 
upon the notice's publication. No further regulatory action by NHTSA is 
necessary to make these changes effective.
    To ensure that States are able to apply for grant funds in fiscal 
year 1996 under an implementing regulation that reflects the statutory 
amendments contained in the NHS Act, these changes have been made as an 
interim final rule, without prior notice and opportunity to comment. 
These changes do not impose any additional requirements on States. In 
fact, they provide additional flexibility to States that wish to apply 
for Section 410 grants this fiscal year. In addition, the changes made 
to the regulation, simply reflect the statutory amendments enacted by 
the NHS Act.
    NHTSA requests comments on these changes. All comments submitted in 
response to this notice 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, will further amend the provisions of 
Part 1313.
    NHTSA also requests comments on the issues described below, which 
involve changes the agency is considering for adoption in future 
rulemaking, but which have not been made in today's interim final rule.

New Zero Tolerance Sanction

    As explained more fully in a separate notice of proposed rulemaking 
(NPRM), published in the notices section of today's Federal Register, 
Section 320 of the NHS Act added a new Section 161 to title 23, United 
States Code, to create a new zero tolerance sanction program, which 
requires the withholding of certain Federal-aid highway funds from 
States that do not enact and enforce a ``zero tolerance'' law. The 
``zero tolerance'' requirement contained in Section 161 is similar, but 
not identical, to the ``0.02 BAC'' grant criterion contained in Section 
410.
    Section 410 provides that, to qualify for funding under the ``0.02 
BAC'' grant criterion, a State must provide ``that any person under age 
21 with a BAC of 0.02 percent or greater when driving a motor vehicle 
shall be deemed to be driving while intoxicated.'' Section 161 provides 
that, to avoid the withholding of Federal-aid highway funds, a State 
must enact and enforce ``a law that considers an individual under the 
age of

[[Page 9103]]

21 who has a BAC of 0.02 percent or greater while operating a motor 
vehicle in the State to be driving while intoxicated or driving under 
the influence of alcohol.''
    In the NPRM, NHTSA and the Federal Highway Administration (FHWA), 
the agencies responsible for jointly administering this new sanction 
program, state that:

    The agencies believe that, while Congress intended to encourage 
all States to enact and enforce effective zero tolerance laws, it 
also intended to provide States with sufficient flexibility so they 
could develop laws that suited the particular conditions that exist 
in those States. Accordingly, the statute prescribes only a limited 
number of basic elements that State laws must meet to avoid the 
withholding of Federal-aid highway funds.

    NHTSA and FHWA propose in the NPRM that, to avoid the sanction, 
States must demonstrate that they have enacted and are enforcing a law 
that: (1) Applies to all individuals under the age of 21; (2) sets a 
BAC of not higher than 0.02 percent as the legal limit; (3) makes 
operating a motor vehicle by an individual under the age of 21 above 
the legal limit a per se offense; and (4) provides for primary 
enforcement.

Impact of New Zero Tolerance Sanction on 0.02 BAC Criterion

    The proposed requirement under the new zero tolerance sanction 
differs from the current requirement under the Section 410 ``0.02 BAC'' 
grant criterion. Currently, to qualify for a Section 410 grant under 
the ``0.02 BAC'' grant criterion, in addition to the requirements 
listed above, a State must provide for a 30-day suspension or 
revocation. 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 with this criterion, States must submit a law 
that provides for each element of the criterion, except that States 
with laws that do not specifically provide for a 30-day suspension 
period may submit data showing that the average length of the 
suspension term for offenders meets or exceeds 30 days.
    As stated above, today's interim final rule changes the Section 410 
``0.02 BAC'' grant criterion from a supplemental to a basic grant 
criterion. It does not, however, change the criterion itself or the 
method for demonstrating compliance.
    If the proposed ``zero tolerance'' regulation published in today's 
NPRM is adopted without change, and no further changes are made to the 
Section 410 ``0.02 BAC'' grant criterion, the following situation could 
result: a State could enact and enforce a law that would permit it to 
avoid the ``zero tolerance'' sanction, but not enable it to qualify for 
a Section 410 grant under the ``0.02 BAC'' grant criterion.
    The current Section 410 ``0.02 BAC'' criterion was first adopted in 
an interim final rule, dated August 9, 1994 (59 FR 40470), which 
requested comments from the public. In response to that notice, one 
commenter (Advocates for Highway Safety) expressed concern that the 
criterion was not strict enough. Advocates stated:

    We are not convinced * * * that a 30-day period of suspension is 
sufficient to make an effective impression on under age 21 drivers. 
* * * We believe that there is a strong argument for requiring a 90-
day suspension for under age 21 supplemental grants even for states 
that meet the basic grant criteria without an ALR law.

    Two commenters (the Michigan Department of State Police and the 
National Association of Governors' Highway Safety Representatives 
(NAGHSR)) considered the 30-day hard suspension requirement too strict. 
NAGHSR expressed the view that the 30-day requirement was not contained 
in the Section 410 statute, and its inclusion in the regulation made it 
unnecessarily difficult for States to qualify for Section 410 funds.
    In light of the comments that NHTSA received in response to its 
interim final rule dated August 9, 1994, and the proposed 
implementation of the new ``zero tolerance'' sanction program 
established by the NHS Act, NHTSA is requesting comments regarding 
whether to make further revisions to Part 1313. Specifically, NHTSA 
requests comments regarding whether it should retain different 
requirements under the ``zero tolerance'' sanction and the Section 410 
``0.02 BAC'' grant criterion, or whether it should amend the Section 
410 ``0.02 BAC'' criterion to be the same as the ``zero tolerance'' 
sanction requirement.

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 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 April 22, 
1996. 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 8 of 
the NHTSA Docket Section in Room 5109, Nassif Building, 400 Seventh 
Street, SW., Washington, DC 20590.

Regulatory Analyses and Notice

Executive Order 12778 (Civil Justice Reform)

    This interim final rule will not have any preemptive or retroactive 
effect. The enabling legislation does not establish a procedure for 
judicial review of final rules promulgated under its provisions. There 
is no requirement that individuals submit a petition for 
reconsideration or other administrative proceedings before they may 
file suit in court.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The agency has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 or 
Department of Transportation Regulatory Policies and Procedures. 
Section 410 is a voluntary program. In addition, the changes made in 
this interim final rule merely reflect amendments contained in Public 
Law 104-59. Accordingly, a full regulatory evaluation is not required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), the agency has evaluated the effects of this action 
on small entities. Based on the evaluation, we certify that this action 
will not have a significant impact on a substantial number of small 
entities. Accordingly, the preparation of

[[Page 9104]]

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 under OMB No. 
2127-0501. A request for an extension of this approval through 11/30/98 
is currently pending.

National Environmental Policy Act

    The agency has analyzed this action for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has 
determined that it will not have any significant impact on the quality 
of the human environment.

Executive Order 12612 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612, and it has been determined 
that this action does not have sufficient federalism implications to 
warrant the preparation of a federalism assessment. Accordingly, the 
preparation of a Federalism Assessment is not warranted.

List of Subjects in 23 CFR Part 1313

    Alcohol abuse, Drug abuse, Grant programs--transportation, Highway 
safety, Reporting and recordkeeping requirements.

    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 1313.5 is amended by removing the word ``six'' in the 
introductory text and by adding paragraphs (c)(4) and (g) to read as 
follows:


Sec. 1313.5  Requirements for a basic grant.

* * * * *
    (c) * * *
    (4)(i) A State shall be treated as having met the requirement of 
this paragraph if the highest court of the State has issued a decision 
indicating that implementation of paragraph (c)(1) of this section 
would constitute a violation of the constitution of the State and NHTSA 
determines, based on data contained in the Fatal Accident Reporting 
System (FARS) and using NHTSA's method for estimating alcohol 
involvement, that the alcohol involvement rate in fatal crashes in the 
State:
    (A) Has decreased in each of the 3 most recent calendar years for 
which statistics for determining such rate are available; and
    (B) The alcohol involvement rate in fatal crashes in the State has 
been lower than the average such rate for all States in each of such 
calendar years.
    (ii) To demonstrate compliance under this paragraph in each fiscal 
year the State receives a basic grant based on this criterion, the 
State shall submit:
    (A) A certification that the highest court of the State has issued 
a decision indicating that a Statewide program for the stopping of 
motor vehicles on a nondiscriminatory, lawful basis for the purpose of 
determining whether or not the operators of such motor vehicles are 
driving while under the influence of alcohol, would constitute a 
violation of the State's Constitution; and
    (B) A copy of the court's decision.
* * * * *
    (g) Per se law for persons under age 21. (1) 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 each year the State receives a 
basic grant based on this criterion, 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 each year the State receives a 
basic grant based on 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 
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.


Sec. 1313.6  [Amended]

    3. Section 1313.6 is amended by removing paragraph (a) and 
redesignating paragraphs (b) through (g) as paragraphs (a) through (f), 
respectively.

    Issued on: February 29, 1996.
Ricardo Martinez,
Administrator, National Highway Traffic Safety Administration.
[FR Doc. 96-5131 Filed 3-6-96; 8:45 am]
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