[Federal Register Volume 63, Number 171 (Thursday, September 3, 1998)]
[Rules and Regulations]
[Pages 46881-46887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23748]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration
Federal Highway Administration

23 CFR Part 1225

[Docket No. NHTSA-98-4394]
RIN 2127-AH39


Operation of Motor Vehicles by Intoxicated Persons

AGENCY: National Highway Traffic Safety Administration (NHTSA) and 
Federal Highway Administration (FHWA), Department of Transportation 
(DOT).

ACTION: Interim final rule; request for comments.

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SUMMARY: This interim final rule implements a new program established 
by the Transportation Equity Act for the 21st Century (TEA 21), under 
which States can qualify for incentive grant funds if they enact and 
enforce a law that provides that any person with a blood alcohol 
concentration of 0.08 percent or greater while operating a motor 
vehicle in the State shall be deemed to have committed a per se offense 
of driving while intoxicated or an equivalent per se offense. This 
interim final rule solicits public comments.

DATES: This interim final rule becomes effective on September 3, 1998. 
Comments must be received by October 19, 1998.

ADDRESSES: Written comments should refer to the docket number of this 
notice and be submitted (preferably two copies) to: Docket Management, 
Room PL-401, National Highway Traffic Safety Administration, Nassif 
Building, 400 Seventh Street, S.W., Washington, D.C. 20590. (Docket 
hours are Monday-Friday, 10 a.m. to 5 p.m., excluding Federal 
holidays.)

FOR FURTHER INFORMATION CONTACT: In NHTSA: Ms. Marlene Markison, Office 
of State and Community Services, NSC-01, telephone (202) 366-2121; or 
Ms. Heidi L. Coleman, Office of Chief Counsel, NCC-30, telephone (202) 
366-1834.
    In FHWA: Byron Dover, Office of Highway Safety, HHS-10, telephone 
(202) 366-2161; or Mr. Raymond W. Cuprill, HCC-20, telephone (202) 366-
0834.

SUPPLEMENTARY INFORMATION: The Transportation Equity Act for the 21st 
Century (TEA 21), Pub. L. 105-178, was signed into law on June 9, 1998. 
Section 1404 of the Act established a new incentive grant program under 
Section 163 of Title 23, United States Code (Section 163). Under this 
new program, States may qualify for incentive grant funds by enacting 
and enforcing laws that provide that ``any person with a blood alcohol 
concentration (BAC) of 0.08 percent or greater while operating a motor 
vehicle in the State shall be deemed to have committed a per se offense 
of driving while intoxicated (or an equivalent per se offense).''
    This new program was put into place to address the issue of 
impaired driving, which continues to be a serious national problem with 
tragic consequences. The agencies believe that 0.08 BAC laws will have 
a significant impact on reducing this problem.

Background

The Problem of Impaired Driving

    Injuries caused by motor vehicle traffic crashes are a major health 
care problem in America and are the leading cause of death for people 
aged 6 to 27. Each year, the injuries caused by traffic crashes in the 
United States claim approximately 42,000 lives and cost

[[Page 46882]]

Americans an estimated $150 billion, including $19 billion in medical 
and emergency expenses, $42 billion in lost productivity, $52 billion 
in property damage, and $37 billion in other crash related costs.
    In 1996, alcohol was involved in approximately 41 percent of fatal 
traffic crashes. Every 30 minutes, someone in this country dies in an 
alcohol-related crash. In 1994, alcohol-involved crashes resulted in 
$45 billion in economic costs, accounting for 30 percent of all crash 
costs. Impaired driving is the most frequently committed violent crime 
in America.

Impaired Driving Laws

    States have enacted a number of different types of laws in their 
efforts to fight the battle against impaired driving. For example, 
forty-eight States and the District of Columbia have enacted ``illegal 
per se'' laws. Two States and Puerto Rico have not. An illegal per se 
law makes it illegal, in and of itself, to drive with an alcohol 
concentration measured at or above the established legal limit.
    In 32 of the States with illegal per se laws and in the District of 
Columbia, the legal limit is 0.10 percent blood alcohol concentration 
(BAC). Sixteen States have enacted laws that establish 0.08 BAC as the 
legal limit. (Fifteen of these laws are currently in effect. One is due 
to become effective on January 1, 1999.)

The Effectiveness of 0.08 BAC Laws

    A number of studies have been conducted to determine the 
effectiveness of 0.08 BAC laws.
    The effect of California's 0.08 law was analyzed, for example, in a 
1991 NHTSA study. The agency found that 81 percent of the driving 
population knew that the BAC limit had become stricter (as the result 
of a successful public education effort). The State experienced a 12 
percent reduction in alcohol-related fatalities, although some of the 
reduction may have resulted from a new administrative license 
revocation law that was enacted during the same year that the BAC 
standard was lowered. The State also experienced an increase in the 
number of impaired driving arrests.
    A multi-state analysis of the effect of lowering BAC levels to 0.08 
was conducted by Boston University's School of Public Health. The 
results of that study were reported in the September 1996 issue of the 
American Journal of Public Health, a peer-reviewed journal. The Boston 
University study compared the first five states to lower their BAC 
limit to 0.08 (California, Maine, Oregon, Utah and Vermont) with five 
nearby states that retained the 0.10 BAC limit. The results of this 
study suggest that 0.08 BAC laws, particularly in combination with 
administrative license revocation, reduce the proportion of fatal 
crashes involving drivers and fatally injured drivers at blood alcohol 
levels of 0.08 percent and higher by 16 percent and those at a BAC of 
0.15 percent and greater by 18 percent.
    The immediate significance of these findings is that, the 0.08 BAC 
laws, particularly in combination with administrative license 
revocation, not only reduced the overall incidence of alcohol 
fatalities, but they also reduced fatalities at the higher BAC levels. 
The effect on the number of extremely impaired drivers was even greater 
than the overall effect.
    The study concluded that if all States lowered their BAC limits to 
0.08, alcohol-related highway deaths would decrease nationwide by 500-
600 per year, which would result in an economic cost savings of 
approximately $1.5 billion.
    In a 1995 NHTSA analysis of the same five States studied by Boston 
University, the agency examined six different measures of driver 
alcohol involvement in fatal crashes and compared the time period 
before the 0.08 law was passed with the time period after passage of 
the law for each State. A total of thirty comparisons of the level of 
driver alcohol involvement were made. Nine of the thirty comparisons 
(in four of the five States) showed statistically significant 
decreases. An additional 16 comparisons, while not statistically 
significant, also showed decreases. None of the comparisons for the 
rest of the nation (States at 0.10 BAC) showed changes that were 
statistically significant.
    Other studies published on the effects of enacting 0.08 BAC laws, 
which use various different measures, have all shown significant 
decreases in alcohol-related fatalities. NHTSA surveys all show that 
most people would not drive after consuming two or three drinks in an 
hour (the amount of alcohol an average 120-pound woman would have to 
drink on an empty stomach to reach 0.08 BAC; an average 170-pound man 
would have to consume 4-5 drinks in an hour on an empty stomach to 
reach that BAC level). In addition, three recent scientific telephone 
polls indicate that two out of every three Americans think the BAC 
standard should be lowered to 0.08.

Presidential Support for a National Standard at 0.08 BAC

    President Clinton strongly supports the enactment of 0.08 BAC laws 
by the States. In fact, on March 3, 1998, the President addressed the 
Nation about his interest in promoting a national illegal per se limit 
of 0.08 BAC across the country, including on Federal property. During 
his address, the President called on Congress to pass impaired driving 
legislation that would establish a national 0.08 BAC per se standard.
    On March 4, 1998, the United States Senate passed ``The Safe and 
Sober Streets Act of 1997,'' which had been introduced by Senator Frank 
Lautenberg (D-NJ) and Senator Mike DeWine (R-OH). Similar legislation 
was introduced in the U.S. House of Representatives by Rep. Nita Lowey 
(D-NY).
    The Safe and Sober Streets Act would have required the withholding 
of certain Federal-aid highway funds from States that do not enact and 
enforce 0.08 BAC per se laws. To avoid the withholding of funds, States 
would have been required to enact and enforce 0.08 BAC per se laws by 
October 1, 2001. This legislation, however, was not enacted into law.
    Instead, Congress passed an incentive grant program to encourage 
State enactment of 0.08 BAC laws. This program was included in TEA 21 
(H.R. 2400). On June 9, 1998, President Clinton signed the legislation 
and remarked, in his signing statement:

    Today I am pleased to sign into law H.R. 2400, the 
``Transportation Equity Act for the 21st Century.'' This 
comprehensive infrastructure measure for our surface transportation 
programs--highway, highway safety, and transit--retains the core 
programs and builds on the initiatives established in the landmark 
Intermodal Surface Transportation Efficiency Act of 1991.
* * * * *
    I am deeply disappointed, however, that H.R. 2400 fails to 
include language that would help to establish 0.08 percent [BAC] as 
the standard for drunk driving in each of the 50 States. The 
experience of States that have adopted the 0.08 blood alcohol level 
shows that this stringent measure against drunk driving has the 
potential, when applied nationwide, to save hundreds of lives each 
year. Applying 0.08 nationwide is an important cornerstone of our 
safety efforts. My Administration will continue to fight for it. In 
the meantime, H.R. 2400 does establish a new $500 million incentive 
program encouraging the States to adopt tough 0.08 BAC laws.

Adoption of 0.08 BAC Law

    Section 163 specifically provides that the Secretary of 
Transportation shall make a grant to any State that has enacted and is 
enforcing a law that provides that any person with a blood alcohol 
concentration of 0.08 percent or greater while operating a motor 
vehicle in the State shall be deemed to have

[[Page 46883]]

committed a per se offense of driving while intoxicated or an 
equivalent per se offense.
    Consistent with other grant programs that are administered by the 
agencies, a State's law must have been both passed and made effective 
to permit a State to qualify for funding based on that law. In 
addition, the State must have begun to implement the law.

Compliance Criteria

    To qualify for funding under this program, Section 163 provides 
that a State must enact and enforce:

a law that provides that any person with a blood alcohol 
concentration of 0.08 percent or greater while operating a motor 
vehicle in the State shall be deemed to have committed a per se 
offense of driving while intoxicated or an equivalent per se 
offense.

    Section 163 does not define any of these terms, and it does not 
contain many details about what conforming State laws must provide. For 
example, it does not specify the penalties that must be imposed on 
offenders who violate 0.08 BAC per se laws. Since Section 163 does not 
prescribe the penalties that must be imposed on offenders who violate 
0.08 BAC laws, the agencies have not specified any minimum penalties in 
the implementing regulation.
    The agencies believe that, while Congress intended to encourage all 
States to enact and enforce effective 0.08 BAC laws, it also intended 
to provide States with sufficient flexibility to develop laws that suit 
their particular conditions. Accordingly, the agencies' implementing 
regulation prescribes only a limited number of basic elements that 
State laws must meet to qualify for these incentive grant funds.
    This interim final rule defines those basic elements. The elements 
are described below:
1. Any Person
    To qualify for funds under this program, a State must enact and 
enforce a law that establishes a BAC limit of 0.08 or greater that 
applies to all persons. The law can provide for no exceptions.
2. Blood Alcohol Concentration (BAC) of 0.08 Percent
    To qualify for funds under this program, a State must set a level 
of no more than 0.08 percent as the legal limit for blood alcohol 
concentration, thereby making it an offense for any person to have a 
BAC of 0.08 or greater while operating a motor vehicle. If a State were 
to enact a law that set a lower percentage (such as 0.07 percent) as 
the legal limit, such a law would also conform to the Federal 
requirement, since all persons with a BAC of 0.08 or greater would be 
covered.
3. Per Se Law
    To qualify for funds under this program, a State must consider 
persons who have a BAC of 0.08 percent or greater while operating a 
motor vehicle in the State to have committed a per se offense of 
driving while intoxicated.
    In other words, States must establish a 0.08 ``per se'' law, that 
makes driving with a BAC of 0.08 percent or above, in and of itself, an 
offense.
    The agencies are aware of two States (Massachusetts and South 
Carolina) that have laws that make it unlawful for a person to drive 
while under the influence of alcohol, but do not establish a BAC limit 
at or above which it is illegal per se to drive. These laws provide 
that a BAC of 0.08 percent or above creates an ``inference'' or a 
``permissible inference'' that the person committed the offense. 
However, since these laws do not make the operation of a motor vehicle 
with a BAC of 0.08 a ``per se'' offense, they do not conform to the 
Federal requirement.
    In addition, some States have ``per se'' laws at the 0.10 BAC 
level, and provide that a lower BAC level, such as 0.08 or even lower, 
creates a presumption or can be used as prima facie evidence of a 
violation of an impaired driving offense. Again, since these States do 
not have laws that make the operation of a motor vehicle with a BAC of 
0.08 a ``per se'' offense, they do not conform to the Federal 
requirement.
4. Primary Enforcement
    To qualify for funds under this program, a State must enact and 
enforce a 0.08 BAC law that provides for primary enforcement.
    Under a primary enforcement law, law enforcement officials have the 
authority to enforce the law without, for example, the need to show 
that they had probable cause or had cited the offender for a violation 
of another offense. Any State with a law that provides for secondary 
enforcement of its 0.08 BAC provision will not qualify for funds under 
this program.
5. Both Criminal and ALR Laws
    To qualify for funds under this program, a State must establish a 
0.08 BAC per se level under its criminal code. In addition, if the 
State has an administrative license revocation or suspension (ALR) law, 
the State must establish an illegal 0.08 BAC per se level under its ALR 
law, as well.
    For example, if a State were to include a 0.08 BAC per se provision 
in its ALR law, but retained a higher BAC (such as 0.10) or a prima 
facie (as opposed to a per se) provision in its criminal code, the 
State would not qualify for funding under this program. If a State were 
to include a conforming 0.08 BAC per se provision in its criminal code, 
and the State did not have an ALR law, the State could qualify for 
Federal funding.
6. Standard Driving While Intoxicated Offense
    To qualify for funds under this program, the State's 0.08 BAC per 
se law must be deemed to be or equivalent to the State's standard 
driving while intoxicated offense. As explained above, 48 States and 
the District of Columbia have ``illegal per se'' laws, under which it 
is unlawful, in and of itself, for a person to operate a motor vehicle 
with a BAC at or above a specified level. All 50 States, plus the 
District of Columbia and Puerto Rico (each of the jurisdictions that 
are considered States and therefore are potentially eligible for 
funding under the Section 163 program) have non-BAC per se offenses, 
under which it is unlawful for a person to operate a motor vehicle 
while intoxicated. This non-BAC per se offense is the standard driving 
while intoxicated offense in each State.
    The agencies recognize that some States do not use the term 
``intoxicated'' or ``driving while intoxicated'' in their laws. Some 
States use other terms, such as ``driving under the influence of 
alcohol'' to describe this offense. Section 163 does not require that a 
single term be used. It requires only that operating a motor vehicle 
with a BAC of 0.08 be deemed to be a per se offense and (regardless of 
the nomenclature used) that it be deemed to be or equivalent to the 
``standard'' driving while intoxicated offense in the State.
    Most States provide for a single driving while intoxicated offense, 
but some States have established more than one offense that relates to 
impaired or intoxicated driving. The most serious offense generally 
will be the State's ``standard'' driving while intoxicated offense 
(although it might be called by another name, such as ``driving under 
the influence''). The State may have a less-serious offense, which 
generally will be a ``lesser-included'' offense of the standard driving 
while intoxicated offense. (This ``less-serious'' offense is often 
referred to as ``driving while impaired.'')
    The State of New York, for example, has established a two-tiered 
system. ``Driving while intoxicated'' is the ``standard'' offense in 
New York. Persons violate the offense by operating

[[Page 46884]]

a vehicle at a BAC of 0.10. They also violate the offense through a 
non-BAC per se provision, by operating a vehicle ``while in an 
intoxicated condition.'' A person's BAC level is just one piece of 
evidence that would be used to prove a violation under this provision.
    ``Driving while ability impaired'' is the ``less-serious'' offense 
in New York. ``Driving while ability impaired'' is not a BAC per se 
offense in New York. Persons violate that offense by operating a 
vehicle ``while the person's ability to operate such motor vehicle is 
impaired by the consumption of alcohol.'' Evidence that a person 
registered a BAC of more than 0.05 but not more than 0.07 is considered 
relevant evidence, but is not given prima facie effect, in determining 
whether the person's ability to operate a motor vehicle was impaired. 
Evidence that a person registered a BAC of more than 0.07 but less than 
0.10 is considered prima facie evidence that the person's ability to 
operate a motor vehicle was impaired. Operating at these BAC levels, 
however, is not a per se offense.
    Under the agencies' regulation, New York does not presently qualify 
for Section 163 funding based on its ``driving while intoxicated'' law, 
because a person does not violate the law unless their BAC is 0.10 or 
greater. The State's ``driving while ability impaired'' law does not 
enable the State to qualify for two reasons. First, it is not a per se 
law, and second, it is not the ``standard'' driving while intoxicated 
offense in the State. To qualify for Section 163 funding, the State 
would be required to amend its ``driving while intoxicated'' law to 
cover persons operating a motor vehicle with a BAC of 0.08.
    The ``standard'' driving while intoxicated offense, however, will 
not necessarily be the most serious drinking and driving offense in the 
State. The agencies recognize, for example, that some States have 
enacted additional illegal per se offenses that apply additional or 
enhanced sanctions to offenders with ``high BAC's'' (in excess of 0.10, 
such as at 0.17 or 0.20). In fact, NHTSA's Section 410 program (23 
U.S.C. Section 410, as amended by TEA 21), encourages States to enact 
such laws. These ``high BAC'' laws will not be considered the 
``standard'' driving while intoxicated offense of a State for the 
purpose of the Section 163 program.
    In States with multiple drinking and driving provisions, the agency 
will consider a number of factors to determine whether the State's 0.08 
BAC per se law has been deemed to be or is equivalent to the standard 
driving while intoxicated offense in the State. These factors will 
include the treatment of these offenses, their relation to other 
offenses in the State and the sanctions and other consequences that 
result when persons violate these offenses.

Terms Governing the Incentive Grant Funds

    A total of $500 million has been authorized for the section 163 
program over a period of six years, beginning in FY 1998. Specifically, 
TEA 21 authorized $55 million for fiscal year 1998, $65 million for FY 
99, $80 million for FY 2000, $90 million for FY 2001, $100 million for 
FY 2002 and $110 million for FY 2003.
    Available funds will be apportioned in each fiscal year to the 
States that qualify for grants, according to the section 402 formula, 
which is apportioned 75 percent based on the State's population and 25 
percent based on the number of public road miles in the State.
    Funds received by States under the section 163 program may be used 
for any project eligible for assistance under Title 23 of the United 
States Code, which includes highway construction as well as highway 
safety projects or programs. Since States will be receiving section 163 
funds on the basis on their 0.08 BAC per se laws, a highway safety 
initiative, the agencies strongly encourage the States to consider 
eligible highway safety projects and programs when they are deciding 
how they will spend these funds.
    Since section 163 provides that the Federal share of the cost of a 
project funded under this program shall be 100 percent, there is no 
State matching requirement for these funds. In addition, the funds 
authorized by section 163 shall remain available until expended.

Demonstrating Compliance

    Section 163 provides that grants will be awarded to complying 
States beginning in fiscal year 1998. To demonstrate compliance with 
the provisions of both the statutory and regulatory requirements, each 
State must submit a certification in each year that it wishes to 
receive a grant.
    To receive its first grant under this program, a State must submit 
a certification by an appropriate State official that the State has 
enacted and is enforcing a 0.08 BAC per se law that conforms to 23 
U.S.C. Sec. 163 and Sec. 1225.5 of this Part and that the funds 
received by the State under this program will be used for projects 
eligible for assistance under Title 23 of the United States Code, which 
include highway construction as well as highway safety projects and 
programs.
    To receive subsequent-year grants under this program, a State must 
submit a certification by an appropriate State official, stating either 
that the State has amended or has not changed its 0.08 BAC per se law 
and that the State is enforcing the law. The certification must also 
state that the funds received by the State under this program will be 
used for projects eligible for assistance under Title 23 of the United 
States Code, which include highway construction as well as highway 
safety projects and programs.
    First and subsequent-year certifications must include citations to 
the State's conforming 0.08 BAC per se law. These citations must 
include all applicable provisions of the State's criminal code and, if 
the State has an ALR law, all applicable provisions of that law, as 
well.
    To be eligible for grant funds in FY 1998, States must submit their 
certifications no later than September 4, 1998.
    To be eligible for grant funds in a subsequent fiscal year, States 
must submit their certifications no later than July 1 of that fiscal 
year. For example, to be eligible for grant funds in FY 1999, States 
must submit their certifications no later than July 1, 1999.
    The agencies strongly encourage States to submit their 
certifications in advance of the regulatory deadlines. The agencies 
also strongly encourage States that are considering 0.08 BAC per se 
legislation to request preliminary reviews of such legislation from the 
agencies while the legislation is still pending. The agencies would 
determine in these preliminary reviews whether the legislation, if 
enacted, would conform to the new Federal requirements, thereby 
avoiding a situation in which a State unintentionally enacts non-
conforming 0.08 BAC legislation and then is unable to qualify for grant 
funds. Requests should be submitted through NHTSA's Regional 
Administrators, who will refer the requests to appropriate NHTSA and 
FHWA offices for review.

Interim Final Rule

    This document is published as an interim final rule. Accordingly, 
the new regulations in Part 1225 are fully in effect upon the date of 
the document's publication. No further regulatory action by the 
agencies is necessary to make these regulations effective.
    These regulations have been published as an interim final rule 
because insufficient time was available to provide for prior notice and 
opportunity for comment. TEA 21 was signed into law on June 9, 1998. 
The Act

[[Page 46885]]

authorizes that grant funds be apportioned and obligated, beginning in 
fiscal year 1998, which ends on September 30, 1998. To ensure the award 
in FY 98 of these grant funds to eligible States, a number of steps 
must be taken in a period of less than 90 days. The agencies had to 
promulgate and make effective regulations, States must apply for the 
funds, the agencies must process those applications and apportion the 
incentive grant funds and the States must obligate the funds. These 
circumstances make it necessary to implement the statutory requirements 
by an interim final rule, rather than by the slower process of notice 
and comment rulemaking.
    In the agencies' view, the States will not be impeded by the use of 
an interim final rule. The procedures that States must follow to apply 
for grant funds under this new program are similar to procedures that 
States have followed in other grant programs administered by NHTSA and/
or the FHWA. These procedures were established by rulemaking and were 
subject to prior notice and the opportunity for comment.
    Moreover, the criteria that States must meet to qualify for these 
funds are derived from the Federal statute and are similar to the 
criteria that the agencies established in their rulemaking action that 
implemented 23 U.S.C. Section 161, which established the zero tolerance 
requirement, under which persons under the age of 21 who operate a 
vehicle at a BAC of 0.02 or greater are deemed to be driving while 
intoxicated. The agencies' zero tolerance regulations were subject to 
prior notice and the opportunity for comment.
    For these reasons, the agencies believe that there is good cause 
for finding that providing notice and comment in connection with this 
rulemaking action is impracticable, unnecessary, and contrary to the 
public interest. The agencies also find, for these reasons, that notice 
and an opportunity for comment are not required under the Department's 
regulatory policies and procedures and that this rule can be made 
effective upon publication, pursuant to 5 U.S.C. 808 (P.L. 104-121) 
(the Congressional review provisions of the Small Business Regulatory 
Enforcement Fairness Act).
    The agencies request written comments on these new regulations. All 
comments submitted in response to this document will be considered by 
the agencies. Following the close of the comment period, the agencies 
will publish a document in the Federal Register responding to the 
comments and, if appropriate, will make revisions to the provisions of 
Part 1225.

Written Comments

    Interested persons are invited to comment on this interim final 
rule. It is requested, but not required, that two copies be submitted.
    All comments must be limited to 15 pages in length. Necessary 
attachments may be appended to those submissions without regard to the 
15 page limit. (49 CFR 553.21.) This limitation is intended to 
encourage commenters to detail their primary arguments in a concise 
fashion.
    Written comments to the public docket must be received by November 
2, 1998. To expedite the submission of comments, simultaneous with the 
issuance of this notice, NHTSA and FHWA will mail copies to all 
Governors' Representatives for Highway Safety and State Departments of 
Transportation.
    All comments received before the close of business on the comment 
closing date will be considered and will be available for examination 
in the docket at the above address before and after that date. To the 
extent possible, comments filed after the closing date will also be 
considered. However, the rulemaking action may proceed at any time 
after that date. The agencies will continue to file relevant material 
in the docket as it becomes available after the closing date, and it is 
recommended that interested persons continue to examine the docket for 
new material.
    Those persons who wish to be notified upon receipt of their 
comments in the docket should enclose, in the envelope with their 
comments, a self-addressed stamped postcard. Upon receiving the 
comments, the docket supervisor will return the postcard by mail.
    Copies of all comments will be placed in Docket 98-4394 in Docket 
Management, Room PL-401, Nassif Building, 400 Seventh Street, S.W., 
Washington, D.C. 20590.

Regulatory Analyses and Notices

Executive Order 12778 (Civil Justice Reform)
    This interim final rule will not have any preemptive or retroactive 
effect. The enabling legislation does not establish a procedure for 
judicial review of final rules promulgated under its provisions. There 
is no requirement that individuals submit a petition for 
reconsideration or other administrative proceedings before they may 
file suit in court.
Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures
    The agencies have determined that this action is a significant 
regulatory action within the meaning of Executive Order 12866 and is 
significant within the meaning of Department of Transportation 
Regulatory Policies and Procedures. This determination is based on a 
finding that the rule is likely to have an annual effect on the economy 
of $100 million or more in FY's 2002 and 2003. A sum of $100 million is 
authorized for this program in FY 2002 and $110 million is authorized 
in FY 2003. It is likely that these sums will be awarded to qualifying 
States under the section 163 program in those fiscal years. 
Accordingly, an economic assessment has been prepared.
    The economic assessment concludes that the costs to the States of 
obtaining the funding under the Section 163 program, which include the 
administrative costs of submitting a copy of the law and a 
certification that the State is enforcing the law, are minimal. In 
addition, it finds that the costs to States to enact and publicize new 
0.08 BAC per se laws will not be significant, and the costs to enforce 
these laws need not be different than those incurred by States to 
enforce their current impaired driving laws.
    However, the economic assessment notes that it is expected that at 
least some States will increase enforcement efforts when their new laws 
become effective, and arrests and prosecutions are likely to increase 
for drivers with a BAC at 0.08 and above. Since many States have self-
sufficient programs supported by fines for the post-conviction phase of 
their programs, the economic assessment concludes that any additional 
activity during this phase of their programs, will not result in 
additional costs to the States.
    While it is difficult to isolate the effects that a national 0.08 
BAC per se standard would have, the economic assessment indicates that 
a study conducted by the Boston University School of Public Health, 
which was published in the September 1996 issue of the American Journal 
of Public Health estimated that 500-600 alcohol-related highway deaths 
would be prevented each year if all States lowered their BAC limits to 
0.08 BAC. Such a reduction in deaths would represent a 4 percent 
decrease in alcohol-related deaths nationwide and would result in cost 
savings of approximately $1.5 billion each year. Copies of the economic 
assessment are available to

[[Page 46886]]

the public in the docket for this rulemaking action.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), the agencies have evaluated the effects of this 
action on small entities. Studies to date have not shown that 0.08 BAC 
per se laws have affected alcohol consumption in any of the five States 
analyzed. Thus, there should be no noticeable impact on small 
businesses that sell and serve alcohol. Since this interim final rule 
will apparently affect only State governments, it will not have any 
effect on small businesses. Thus, we certify that this action will not 
have a significant impact on a substantial number of small entities and 
find that the preparation of a Regulatory Flexibility Analysis is 
unnecessary.
Paperwork Reduction Act
    This action does not contain a collection of information 
requirement for purposes of the Paperwork Reduction Act of 1980, 44 
U.S.C. Chapter 35, as implemented by the Office of Management and 
Budget (OMB) in 5 CFR Part 1320.
National Environmental Policy Act
    The agencies have analyzed this action for the purpose of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
have determined that it will not have any significant impact on the 
quality of the human environment.
The Unfunded Mandates Reform Act
    The Unfunded Mandates Reform Act of 1995 (Public Law 104-4) 
requires agencies to prepare a written assessment of the costs, 
benefits and other affects of final rules that include a Federal 
mandate likely to result in the expenditure by State, local or tribal 
governments, in the aggregate, or by the private sector, of more than 
$100 million annually. This interim final rule does not meet the 
definition of a Federal mandate. It is a voluntary program in which 
States can choose to participate, solely at their option. The costs to 
States to qualify for participation in this program are minimal, and 
will result in annual expenditures that will not exceed the $100 
million threshold. Moreover, States that chose to participate in this 
program will receive Federal incentive grants, which will provide funds 
for activities that are eligible under Title 23 of the United States 
Code.
Executive Order 12612 (Federalism Assessment)
    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612, and it has been determined 
that this action does not have sufficient federalism implications to 
warrant the preparation of a federalism assessment. Accordingly, the 
preparation of a Federalism Assessment is not warranted.

List of Subjects in 23 CFR Part 1225

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

    In accordance with the foregoing, a new Part 1225 is added to 
chapter II of Title 23 of the Code of Federal Regulations to read as 
follows:

PART 1225--OPERATION OF MOTOR VEHICLES BY INTOXICATED PERSONS

Sec.
1225.1  Scope.
1225.2  Purpose.
1225.3  Definitions.
1225.4  General requirements.
1225.5  Adoption of 0.08 BAC per se law.
1225.6  Award procedures.

    Authority: 23 U.S.C. 163; delegation of authority at 49 CFR 1.48 
and 1.50.


Sec. 1225.1  Scope.

    This part prescribes the requirements necessary to implement 
Section 163 of Title 23, United States Code, which encourages States to 
enact and enforce 0.08 BAC per se laws.


Sec. 1225.2  Purpose.

    The purpose of this part is to specify the steps that States must 
take to qualify for incentive grant funds in accordance with 23 U.S.C. 
163, and to encourage States to enact and enforce 0.08 BAC per se laws.


Sec. 1225.3  Definitions.

    As used in this part:
    (a) BAC means either blood or breath alcohol concentration.
    (b) BAC per se law means a law that makes it an offense, in and of 
itself, to operate a motor vehicle with an alcohol concentration at or 
above a specified level.
    (c) Alcohol concentration means either grams of alcohol per 100 
milliliters of blood or grams of alcohol per 210 liters of breath.
    (d) Has enacted and is enforcing means the State's law is in effect 
and the State has begun to implement the law.
    (e) Operating a motor vehicle means driving or being in actual 
physical control of a motor vehicle.
    (f) Standard driving while intoxicated offense means the non-BAC 
per se driving while intoxicated offense in the State.
    (g) State means any one of the fifty States, the District of 
Columbia, or Puerto Rico.


Sec. 1225.4  General requirements.

    (a) Qualification requirements.
    (1) To qualify for a first-year grant under 23 U.S.C. 163, a State 
must submit a certification by an appropriate State official, that the 
State has enacted and is enforcing a 0.08 BAC per se law that conforms 
to 23 U.S.C. 163 and Sec. 1225.5 of this part and that the funds will 
be used for eligible projects and programs. The certification shall be 
worded as follows:

    (Name of certifying official), (position title), of the (State 
or Commonwealth) of ________, do hereby certify that the (State or 
Commonwealth) of ________ has enacted and is enforcing a 0.08 BAC 
per se law that conforms to 23 U.S.C. 163 and 23 CFR 1225.5, 
(citations to State law), and that the funds received by the (State 
or Commonwealth) of ________ under 23 U.S.C. 163 will be used for 
projects eligible for assistance under Title 23 of the United States 
Code, which include highway construction as well as highway safety 
projects and programs.

    (2) To qualify for a subsequent-year grant under 23 U.S.C. 163, a 
State must submit a certification by an appropriate State official.
    (i) If the State's 0.08 BAC per se law has not changed since the 
State last qualified for grant funds under this program, the 
certification shall be worded as follows:

    (Name of certifying official), (position title), of the (State 
or Commonwealth) of ________, do hereby certify that the (State or 
Commonwealth) of ________ has not changed and is enforcing a 0.08 
BAC per se law, which conforms to 23 U.S.C. 163 and 23 CFR 1225.5, 
(citations to State law), and that the funds received by the (State 
or Commonwealth) of ________ under 23 U.S.C. 163 will be used for 
projects eligible for assistance under Title 23 of the United States 
Code, which include highway construction as well as highway safety 
projects and programs.

    (ii) If the State's 0.08 BAC per se law has changed since the State 
last qualified for grant funds under this program, the certification 
shall be worded as follows:

    (Name of certifying official), (position title), of the (State 
or Commonwealth) of ________, do hereby certify that the (State or 
Commonwealth) of ________ has amended and is enforcing a 0.08 BAC 
per se law that conforms to 23 U.S.C. 163 and 23 CFR 1225.5, 
(citations to State law), and that the funds received by the (State 
or

[[Page 46887]]

Commonwealth) of ________, under 23 U.S.C. 163 will be used for 
projects eligible for assistance under Title 23 of the United States 
Code, which include highway construction as well as highway safety 
projects and programs.

    (3) An original and four copies of the certification shall be 
submitted to the appropriate NHTSA Regional Administrator. Each 
Regional Administrator will forward the certifications it receives to 
appropriate NHTSA and FHWA offices.
    (4) Each State that submits a certification will be informed by the 
agencies whether or not it qualifies for funds.
    (5) To qualify for FY 1998 grant funds, certifications must be 
received by the agencies not later than September 4, 1998.
    (6) To qualify for grant funds in a subsequent fiscal year, 
certifications must be received by the agencies not later than July 1 
of that fiscal year.
    (b) Limitation on grants. A State may receive grant funds, subject 
to the following limitations:
    (1) The amount of a grant apportioned to a State under Sec. 1225.5 
of this part shall be determined by multiplying:
    (i) The amount authorized to carry out section 163 of 23 U.S.C. for 
the fiscal year; by
    (ii) The ratio that the amount of funds apportioned to each such 
State under section 402 for such fiscal year bears to the total amount 
of funds apportioned to all such States under section 402 for such 
fiscal year.
    (2) A State may obligate grant funds apportioned under this part 
for any project eligible for assistance under Title 23 of the United 
States Code.
    (3) The Federal share of the cost of a project funded with grant 
funds awarded under this part shall be 100 percent.


Sec. 1225.5  Adoption of 0.08 BAC per se law.

    To qualify for an incentive grant under this part, a State must 
demonstrate that it has enacted and is enforcing a law that provides 
that any person with a blood alcohol concentration (BAC) of 0.08 
percent or greater while operating a motor vehicle in the State shall 
be deemed to have committed a per se offense of driving while 
intoxicated or an equivalent per se offense. The law must:
    (a) Apply to all persons;
    (b) Set a blood alcohol concentration of not higher than 0.08 
percent as the legal limit;
    (c) Make operating a motor vehicle by an individual at or above the 
legal limit a per se offense;
    (d) Provide for primary enforcement;
    (e) Apply the 0.08 BAC legal limit to the State's criminal code 
and, if the State has an administrative license suspension or 
revocation (ALR) law, to its ALR law; and
    (f) Be deemed to be or be equivalent to the standard driving while 
intoxicated offense in the State.


Sec. 1225.6  Award procedures.

    In each Federal fiscal year, grant funds will be apportioned to 
eligible States upon submission and approval of the documentation 
required by Sec. 1225.4(a) and subject to the limitations in 
Sec. 1225.4(b). The obligation authority associated with these funds 
are subject to the limitation on obligation pursuant to section 1102 of 
TEA 21.

    Issued on: August 31, 1998.
Gloria J. Jeff,
Deputy Administrator, Federal Highway Administration.
Ricardo Martinez,
Administrator, National Highway Traffic Safety Administration.
[FR Doc. 98-23748 Filed 8-31-98; 12:26 pm]
BILLING CODE 4910-59-P