[Federal Register Volume 63, Number 201 (Monday, October 19, 1998)]
[Rules and Regulations]
[Pages 55796-55804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27969]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration
Federal Highway Administration

23 CFR Part 1275

[Docket No. NHTSA-98-4537]
RIN 2127-AH47


Repeat Intoxicated Driver Laws

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

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) 
Restoration Act, which provides for the transfer of Federal-aid highway 
construction funds to 23 U.S.C. 402 State and Community Highway Safety 
Program grant funds for any State that fails to enact and enforce a 
conforming ``repeat intoxicated driver'' law.
    This regulation is being published as an interim final rule, which 
will go into effect prior to providing notice and the opportunity for 
comment. Following the close of the comment period, NHTSA will publish 
a separate document responding to comments and, if appropriate, will 
revise provisions of the regulation.

DATES: This interim final rule becomes effective on November 18, 1998. 
Comments on this interim rule are due no later than December 18, 1998.

ADDRESSES: Written comments should refer to the docket number of this 
notice and be submitted (preferably in two copies) to: Docket 
Management, Room PL-401 Section, 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. Jennifer Higley, Office 
of State and Community Services, NSC-01, National Highway Traffic 
Safety

[[Page 55797]]

Administration, 400 Seventh Street S.W., Washington, DC 20590, 
telephone (202) 366-2121; or Ms. Heidi L. Coleman, Office of Chief 
Counsel, NCC-30, telephone (202) 366-1834.
    In FHWA: Mr. Bing Wong, Office of Highway Safety, HHS-20, telephone 
(202) 366-2169; or Mr. Raymond W. Cuprill, HCC-20, telephone (202) 366-
0834.

SUPPLEMENTARY INFORMATION: The Transportation Equity Act for the 21st 
Century (TEA-21), H.R. 2400, P.L. 105-178, was signed into law on June 
9, 1998. On July 22, 1998, a technical corrections bill, entitled the 
TEA-21 Restoration Act, P.L. 105-206, was enacted to restore provisions 
that were agreed to by the conferees to H.R. 2400, but were not 
included in the TEA-21 conference report. Section 1406 of the Act 
amended chapter 1 of title 23, United States Code (U.S.C.), by adding 
Section 164, which established a transfer program under which a 
percentage of a State's Federal-aid highway construction funds will be 
transferred to the State's apportionment under Section 402 of Title 23 
of the United States Code, if the State fails to enact and enforce a 
conforming ``repeat intoxicated driver'' law.
    In accordance with Section 164, these funds are to be used for 
alcohol-impaired driving countermeasures or the enforcement of driving 
while intoxicated (DWI) laws, or States may elect to use all or a 
portion of the funds for hazard elimination activities, under 23 U.S.C. 
Section 152.
    As provided in Section 164, to avoid the transfer of funds, State 
``repeat intoxicated driver'' laws must provide for certain specified 
minimum penalties for persons who have been convicted of driving while 
intoxicated or under the influence upon their second and subsequent 
convictions.
    This new program was established to address the issue of impaired 
driving, which is a serious national 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 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 1997, alcohol was involved in approximately 39 percent of fatal 
traffic crashes and 7 percent of all crashes. Every 32 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.

Repeat Intoxicated Driver Laws

    State laws that are directed to individuals who have been convicted 
more than once of driving while intoxicated or driving under the 
influence are critical tools in the fight against impaired driving. In 
order to encourage States to enact and enforce effective impaired 
driving laws, Congress has created a number of different programs. 
Under the Section 410 program (under 23 U.S.C. 410), and its 
predecessor, the Section 408 program (under 23 U.S.C. 408), for 
example, States could qualify for incentive grant funds if they adopted 
and implemented certain specified laws and programs designed to deter 
impaired driving. Some of these laws and programs were directed 
specifically toward repeat impaired driving offenders.
    For example, prior to the enactment of TEA-21, to qualify for an 
incentive grant under the Section 410 program, a State was required to 
meet five out of seven basic grant criteria that were specified in the 
Act and the implementing regulation. The criteria included, among 
others, an expedited driver license suspension system, which required a 
mandatory minimum one-year license suspension for repeat offenders, and 
a mandatory minimum sentence of imprisonment or community service for 
individuals convicted of driving while intoxicated more than once in 
any five-year period.
    States that were eligible for a basic Section 410 grant could 
qualify also for additional grant funds by meeting supplemental grant 
criteria, such as the suspension of registration and return of license 
plate program. States could demonstrate compliance with this program by 
showing that they provided for the impoundment, immobilization or 
confiscation of an offender's motor vehicles.
    TEA-21 changed the Section 410 program and, specifically, the 
Section 410 criteria that were directed toward repeat offenders. The 
conferees to that legislation had intended to create a new repeat 
intoxicated driver transfer program to encourage States to enact repeat 
intoxicated driver laws, but this new program was inadvertently omitted 
from the TEA-21 conference report. The program was included instead in 
the TEA-21 Restoration Act, which was signed into law on July 22, 1998.

Section 164  Repeat Intoxicated Driver Law Program

    Section 164 provides that the Secretary must transfer a portion of 
a State's Federal-aid highway construction funds apportioned under 
Sections 104(b) (1), (3), and (4) of title 23 of the United States 
Code, for the National Highway System, Surface Transportation Program 
and Interstate System, to the State's apportionment under Section 402 
of that title, if the State does not meet certain statutory 
requirements. All 50 States, the District of Columbia and Puerto Rico 
are considered to be States, for the purpose of this program.
    To avoid the transfer, a State must enact and enforce a repeat 
intoxicated driver law that establishes, at a minimum, certain 
specified penalties for second and subsequent convictions for driving 
while intoxicated or under the influence. These penalties include: a 
one-year driver's license suspension; the impoundment or immobilization 
of, or the installation of an ignition interlock system on, the repeat 
intoxicated driver's motor vehicles; assessment of the repeat 
intoxicated driver's degree of alcohol abuse, and treatment as 
appropriate; and the sentencing of the repeat intoxicated driver to a 
minimum number of days of imprisonment or community service.
    Consistent with other programs that are administered by the 
agencies, a State's law must have been both passed and come into effect 
to permit a State to rely on the law to avoid the transfer of funds. In 
addition, the State must be actively enforcing the law.
    Any State that does not enact and enforce a conforming repeat 
intoxicated driver law will be subject to a transfer of funds. In 
accordance with Section 164, if a State does not meet the statutory 
requirements on October 1, 2000, or October 1, 2001, an amount equal to 
1\1/2\ percent of the funds apportioned to the State on those dates 
under each of Sections 104(b)(1), (3), and (4) of title 23 of the 
United States Code will be transferred to the State's apportionment 
under Section 402 of that title. If a State does not meet the statutory 
requirements on October 1, 2002, an amount equal to three percent of 
the funds apportioned to the State on that date under Sections 
104(b)(1), (3) and (4) will be transferred. An amount equal to three 
percent will continue to be transferred on October 1 of each subsequent 
fiscal year, if the State does

[[Page 55798]]

not meet the requirements on those dates.
    Section 164, and this implementing regulation, provides also that 
the amount of the apportionment to be transferred may be derived from 
one or more of the apportionments under Sections 104(b)(1), (3) and 
(4).
    In other words, the total amount to be transferred from a non-
conforming State will be calculated based on a percentage of the funds 
apportioned to the State under each of Sections 104(b)(1), (3) and (4). 
However, the actual transfers need not be evenly distributed among 
these three sources. The transferred funds may come from any one or a 
combination of the apportionments under Sections 104(b)(1), (3) or (4), 
as long as the appropriate total amount is transferred from one or more 
of these three sections.
    The funds transferred to Section 402 under this program are to be 
used for alcohol-impaired driving countermeasures or directed to State 
and local law enforcement agencies for the enforcement of laws 
prohibiting driving while intoxicated, driving under the influence or 
other related laws or regulations. The Act provides that States may 
elect to use all or a portion of the transferred funds for hazard 
elimination activities under 23 U.S.C. 152.

Compliance Criteria

    To avoid the transfer of funds under this program, Section 164 
provides that a State must enact and enforce:

    a ``repeat intoxicated driver law'' * * * that provides * * * 
that an individual convicted of a second or subsequent offense for 
driving while intoxicated or driving under the influence [must be 
subject to certain specified minimum penalties].

    The statute defines the term ``repeat intoxicated driver law'' to 
mean a State law that provides certain specified minimum penalties for 
an individual convicted of a second or subsequent offense for driving 
while intoxicated or driving under the influence. The agencies' interim 
final rule adopts this definition. The interim rule also defines the 
term ``repeat intoxicated driver.'' Consistent with other programs 
conducted by the agencies and with State laws and practices regarding 
the maintenance of records of previous convictions, the implementing 
regulation provides that an individual is a ``repeat intoxicated 
driver'' if the driver was convicted of driving while intoxicated or 
driving under the influence of alcohol more than once in any five-year 
period.
    The agencies have conducted a preliminary review of State laws to 
determine whether any States use a period of time that is shorter than 
five years, for the purpose of considering an individual to be a repeat 
offender. We are aware of two States that consider individuals to be 
repeat offenders only if they have been convicted of an alcohol offense 
within the last three years. We are aware also of one State that 
provides the same sanctions for all offenders convicted of driving 
while intoxicated or driving under the influence of alcohol, including 
both first and subsequent offenders.
    To comply with the requirements of this Part, a State need not have 
a law that considers all drivers convicted of driving while intoxicated 
or driving under the influence of alcohol more than once in any five-
year period to be ``repeat intoxicated drivers,'' and the State law 
need not establish separate sanctions for first and repeat offenders. 
However, to comply, the State must have a law that imposes each of the 
sanctions described in Section 164 and this implementing regulation on 
all ``repeat intoxicated drivers,'' as that term is defined in this 
rule. In addition, the State must maintain its records on convictions 
for driving while intoxicated or driving under the influence of alcohol 
for a period of at least five years.
    The terms ``driving while intoxicated'' and ``driving under the 
influence'' are both defined by the statute to mean driving or being in 
actual physical control of a motor vehicle while having an alcohol 
concentration above the legal limit of the State. The statute also 
defines the term ``alcohol concentration.'' The regulation adopts these 
statutory definitions.
    To comply with Section 164 and the agencies' implementing 
regulation, and thereby avoid the transfer of Federal-aid highway 
construction funds, a State must impose all four penalties prescribed 
in Section 164 on all repeat intoxicated drivers. Each of these 
penalties is described below:
    1. A minimum one-year license suspension for repeat intoxicated 
drivers.
    To avoid the transfer of funds, the State law must impose a 
mandatory minimum one-year driver's license suspension or revocation on 
all repeat intoxicated drivers. Research has shown that driver 
licensing sanctions have a significant impact on the problem of 
impaired driving. Studies relating to licensing sanctions imposed under 
State administrative licensing revocation systems, for example, have 
found that these sanctions result in reductions in alcohol-related 
fatalities of between 6-10 percent.
    The term ``license suspension'' is defined in both the statute and 
the implementing regulation to mean a hard suspension of all driving 
privileges. Accordingly, during the one-year term, the offender cannot 
be eligible for any driving privileges, such as a restricted or a 
hardship license.
    Based on the agencies' review of current State laws, it appears 
that there are a number of States that do not impose a mandatory 
suspension of all driving privileges for a period of not less than one 
year. Some States permit hardship or restricted licenses during the 
one-year term. Others provide for the return of an offender's driver's 
license if an ignition interlock system is placed on the offender's 
vehicle. In addition, some States provide for a driver's license 
suspension, but do not establish a mandatory one-year term. These State 
laws do not conform to the regulation.
    2. Impoundment or immobilization of, or the installation of an 
ignition interlock system on, motor vehicles.
    To avoid the transfer of funds, the State law must require the 
impoundment or immobilization of, or the installation of an ignition 
interlock on, all motor vehicles owned by the repeat intoxicated 
offenders.
    The term ``impoundment or immobilization'' has been defined in the 
regulation to mean the removal of a motor vehicle or the rendering of a 
motor vehicle inoperable, and the agencies have determined that this 
definition will also include the forfeiture or confiscation of a motor 
vehicle or the revocation or suspension of a motor vehicle license 
plate or registration. The agencies have defined the term ``ignition 
interlock system'' in the regulation to mean a State-certified system 
designed to prevent drivers from starting their motor vehicles when 
their breath alcohol concentration is at or above a preset level.
    The State law does not need to provide for all three types of 
penalties to comply with this criterion, but it must require that at 
least one of the three penalties will be imposed on all repeat 
intoxicated drivers, for the State to avoid the transfer of funds.
    Section 164 does not specify when a State must impose the 
impoundment or immobilization of, or the installation of an ignition 
interlock system on, motor vehicles. To determine when these penalties 
must be imposed, the agencies considered the purpose of these three 
penalties.
    The agencies recognize that the purpose of an impoundment or 
immobilization sanction is very

[[Page 55799]]

different from that of the installation of an ignition interlock 
system.
    When an individual convicted of driving while intoxicated is 
subject to a driver license suspension, it is expected that the 
individual will not drive for the length of the suspension term. 
However, some studies have found that as many as 70 percent of all 
repeat offenders continue to drive even after their driver's licenses 
have been suspended or revoked. In 1997, nearly 6000 drivers involved 
in fatal crashes did not have a valid driver's license. This number 
represents approximately 10.8 percent of the total number (54,935) of 
drivers involved in fatal crashes, with known license status.
    Accordingly, laws that provide for the impoundment or 
immobilization of motor vehicles are designed to ensure that driver's 
license suspension sanctions are not to be ignored. They seek to 
prevent offenders from driving vehicles while their driver's licenses 
are under suspension.
    Laws that provide for the installation of an ignition interlock 
system on a motor vehicle, on the other hand, are not designed to 
prevent the individual from driving. Such laws generally provide that 
these systems will be installed on a motor vehicle once the 
individual's driver's license has been restored and the individual's 
immobilized or impounded vehicles have been returned. Instead, these 
laws recognize that many individuals convicted of driving while 
intoxicated have difficulty controlling their drinking. Accordingly, 
they are designed to prevent individuals, once they are free again to 
drive, from drinking and driving. Research indicates that about one-
third or all drivers arrested or convicted of driving while intoxicated 
or driving under the influence are repeat offenders. These laws are 
designed to prevent recidivism.
    Based on the nature of these penalties, the agencies have decided 
that a uniform time frame for all three penalties would not be 
appropriate. Instead, the regulation provides that, to comply with this 
criterion, the State law must require that the impoundment or 
immobilization be imposed during the one-year suspension term, and that 
the ignition interlock system be installed at the conclusion of the 
one-year term. The regulation does not specify the length of time 
during which these penalties must remain in effect, since the statute 
was silent in that regard. Leaving this condition undefined in the 
regulation will permit each State to establish a term that is most 
appropriate under its own statutory scheme. The agencies note, however, 
that many States impose impoundment and immobilization sanctions for 
the duration of license suspension terms. The agencies believe this 
approach is a sensible one, and States are encouraged to adopt it.
    Consistent with past practices under the Section 410 program, the 
agencies will permit States to provide limited exceptions to the 
impoundment or immobilization requirement on an individual basis, to 
avoid undue hardship to an individual, including a family member of the 
repeat intoxicated driver, or a co-owner of the motor vehicle, but not 
including the repeat intoxicated driver. To ensure that the 
availability of these exceptions do not undermine the impoundment or 
immobilization requirement, however, exceptions must be made in 
accordance with Statewide published guidelines developed by the State, 
and in exceptional circumstances specific to the offender.
    An exception to the installation of the ignition interlock system, 
however, will not be acceptable. The agencies believe that an exception 
to the requirement that an ignition interlock system be installed is 
not necessary, since the requirement does not prevent a motor vehicle 
from being available for others dependent on that vehicle. It only 
prevents an individual from operating the vehicle under the influence 
of alcohol.
    These sanctions must be mandatory and they must apply to all repeat 
intoxicated drivers for the State law to conform to this criterion. The 
agencies are aware of some States that only impose these sanctions on 
individuals determined to be habitual traffic law offenders. These laws 
do not conform to the requirements of the regulation. Also, in order to 
qualify under this criterion, each motor vehicle owned by the repeat 
intoxicated driver must be subject to one of the three penalties. A 
``motor vehicle'' is defined by Section 164 to mean a vehicle driven or 
drawn by mechanical power and manufactured primarily for use on public 
highways, but does not include a vehicle operated exclusively on a rail 
line or a commercial vehicle. A motor vehicle is subject to this 
element if the repeat intoxicated driver's name appears on the motor 
vehicle registration or title.
    Based on the agencies' review of State laws, it appears that many 
laws provide for an impoundment, immobilization or ignition interlock 
sanction. However, a number of State laws do not impose these sanctions 
on all vehicles owned by the repeat intoxicated driver. If this 
condition is not present in a State law, the law will not conform to 
the agencies' regulation.
    3. An assessment of their degree of alcohol abuse, and treatment, 
as appropriate.
    To avoid the transfer of funds, the State law must require that all 
repeat intoxicated drivers undergo an assessment of their degree of 
alcohol abuse and the State law must authorize the imposition of 
treatment as appropriate.
    Repeat arrests for either driving while intoxicated or driving 
under the influence of alcohol is one indication of a drinking problem, 
and problem drinkers (if they drive at all) are at risk of drinking and 
driving. Assessments of repeat intoxicated drivers for problems and 
referrals to appropriate treatments may help to identify and address 
the underlying problems that lead to drinking and driving.
    Under an assessment, individuals are assessed with regard to their 
alcohol and other drug use (e.g., the frequency and quantity of use, 
the consequences of alcohol and other drug use, and any evidence of 
loss of control over use). Generally, an assessment will contain a 
second component, as well, under which individuals are assessed with 
regard to their risk of driving while intoxicated or of driving under 
the influence of alcohol (their recidivism risk) based on factors in 
addition to their drinking behavior.
    In practice, an assessment typically consists of the administration 
of a standardized psychometric test and a personal interview by a 
trained evaluator. The information obtained through these means are 
then supplemented with information from the courts (regarding the 
individual's criminal and driving history), and family members 
(regarding the individual's alcohol and other drug use).
    Based on the information obtained from the assessment, an informed 
determination can be made regarding the appropriate treatment, if any, 
for the repeat intoxicated driver. This determination should be made by 
a person qualified to evaluate alcohol abuse levels.
    There is a wide array of programs and activities that are 
considered to be ``treatment.'' Examples include: Attendance at 
outpatient counseling sessions; long-term inpatient (i.e, residential) 
programs conducted in hospitals and clinics; the use of medications; 
participation in self-help programs such as Alcoholics Anonymous; or 
any other program, including educational programs, psychological 
treatment or rehabilitation, that has been proven to be effective.

[[Page 55800]]

    To qualify under this criterion, the State law must make it 
mandatory for the repeat intoxicated driver to undergo an assessment, 
but the law need not impose any particular treatment (or any treatment 
at all). It need only authorize the imposition of treatment when it is 
determined to be warranted.
    A review of current State laws reveals that a number of States 
provide for a mandatory assessment of repeat intoxicated drivers and 
have the authority to assign such drivers to treatment as appropriate. 
Other States, however, do not provide for both of these elements.
    Some State laws provide for a mandatory education or treatment 
program for repeat intoxicated drivers, but do not specify that these 
drivers must be assessed. To comply with Section 164 and the agencies' 
implementing regulation, such States must demonstrate, such as by 
submitting sections of the State's statutes, regulations or binding 
policy directives, that under its laws an assessment is a required 
component of the mandatory education or treatment program.
    Other States provide for an assessment and appropriate treatment 
for offenders, but only as a condition to permit the offender to avoid 
certain other sanctions. To comply with Section 164 and the agencies' 
implementing regulation, such States must demonstrate that an 
assessment is required and treatments are available for all repeat 
intoxicated drivers. In addition, the other minimum penalties specified 
under the Section 164 program must continue to be imposed.
    4. Mandatory minimum sentence. 
    To avoid the transfer of funds, the State law must impose a 
mandatory minimum sentence on all repeat intoxicated drivers. For a 
second offense, the law must provide for a mandatory minimum sentence 
of not less than five days of imprisonment or 30 days of community 
service. For a third or subsequent offense, the law must provide for a 
mandatory minimum sentence of not less than ten days of imprisonment or 
60 days of community service.
    Consistent with NHTSA's administration of the Section 410 program, 
the agencies have defined ``imprisonment'' to mean confinement in a 
jail, minimum security facility, community corrections facility, 
inpatient rehabilitation or treatment center, or other facility, 
provided the individual under confinement is in fact being detained.
    House arrests have not been considered to fall within the 
definition of ``imprisonment'' to date under the Section 410 program, 
because it was thought that they did not have a sufficient deterrent 
effect. However, recent NHTSA research seems to indicate that house 
arrests are effective if they are coupled with electronic monitoring. A 
recent study, for example, found markedly lower recidivism rates among 
offenders who had been placed under house arrest with such monitoring. 
Accordingly, the agencies have included house arrests under the 
definition of ``imprisonment'' under the Section 164 program, provided 
that electronic monitoring is used.
    The agencies note that, under NHTSA's Section 410 program, States 
were eligible to receive incentive grants if they met certain specified 
requirements, including a mandatory 48 consecutive hours of 
imprisonment for repeat offenders. As a result of this requirement, 
some current State laws impose a mandatory sentence of 48 consecutive 
hours of imprisonment on second or subsequent offenses of driving while 
intoxicated or driving under the influence of alcohol. This Repeat 
Intoxicated Driver Program, however, requires longer terms of 
imprisonment than were required under Section 410. To comply with this 
new program, States must provide for the longer sentences required 
under this new program and the State laws must establish these 
sentences as mandatory minimum terms.

Demonstrating Compliance

    Section 164 provides that nonconforming States will be subject to 
the transfer of funds beginning in fiscal year 2001. To avoid the 
transfer, this interim final rule provides that each State must submit 
a certification demonstrating compliance with all four elements.
    The certifications submitted by the States under this Part will 
provide the agencies with the basis for finding States in compliance 
with the Repeat Intoxicated Driver requirements. Accordingly, until a 
State has been determined to be in compliance with these requirements, 
a State must submit a certification by an appropriate State official 
that the State has enacted and is enforcing a repeat intoxicated driver 
law that conforms to 23 U.S.C. 164 and Sec. 1275 of this Part.
    Certifications must include citations to the State's conforming 
repeat intoxicated driver law. These citations must include all 
applicable provisions of the State's law.
    Once a State has been determined to be in compliance with the 
requirements, the State would not be required to submit certifications 
in subsequent fiscal years, unless the State's law had changed or the 
State had ceased to enforce the repeat intoxicated driver law. It is 
the responsibility of each State to inform the agencies of any such 
change in a subsequent fiscal year, by submitting an amendment or 
supplement to its certification.
    States are required to submit their certifications on or before 
September 30, 2000, to avoid the transfer of FY 2001 funds on October 
1, 2000.
    States that are found in noncompliance with these requirements in 
any fiscal year, once they have enacted complying legislation and are 
enforcing the law, must submit a certification to that effect before 
the following fiscal year to avoid the transfer of funds in that 
following fiscal year. Such certifications demonstrating compliance 
must be submitted on or before the first day (October 1) of the 
following fiscal year.
    The agencies strongly encourage States to submit their 
certifications in advance. The early submission of these documents will 
enable the agencies to inform States as quickly as possible whether or 
not their laws satisfy the requirements of Section 164 and the 
implementing regulation, and will provide States with noncomplying laws 
an opportunity to take the necessary steps to meet these requirements 
before the date for the transfer of funds.
    The agencies also strongly encourage States that are considering 
the enactment of legislation to conform to these requirements 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, will conform 
to the new regulation, thereby avoiding a situation in which a State 
unintentionally enacts a non-conforming repeat intoxicated driver law 
and the State remains subject to the transfer of funds. Requests should 
be submitted through NHTSA's Regional Administrators, who will refer 
the requests to appropriate NHTSA and FHWA offices for review.

Enforcement

    Section 164 provides that, to qualify for grant funding, a State 
must not only enact a conforming law, but must also enforce the law. To 
ensure the effective implementation of a repeat intoxicated driver law, 
the agencies encourage the States to enforce their laws rigorously. In 
particular, the agencies recommend that States incorporate into their 
enforcement efforts activities designed to inform law enforcement 
officers,

[[Page 55801]]

prosecutors, members of the judiciary and the public about all aspects 
of their repeat intoxicated driver laws.
    To demonstrate that they are enforcing their laws under the 
regulation, however, States are required only to submit a certification 
that they are enforcing their laws.

Notification of Compliance

    For each fiscal year, beginning with FY 2001, NHTSA and the FHWA 
will notify States of their compliance or noncompliance with Section 
164, based on a review of certifications received. If, by June 30 of 
any year, beginning with the year 2000, a State has not submitted a 
certification or if the State has submitted a certification and it does 
not conform to Section 164 and the implementing regulation, the 
agencies will make an initial determination that the State does not 
comply with Section 164 and with this regulation, and the transfer of 
funds will be noted in the FHWA's advance notice of apportionment for 
the following fiscal year, which generally is issued in July.
    Each State determined to be in noncompliance will have an 
opportunity to rebut the initial determination. The State will be 
notified of the agencies' final determination of compliance or 
noncompliance and the amount of funds to be transferred as part of the 
certification of apportionments, which normally occurs on October 1 of 
each fiscal year.
    As stated earlier, NHTSA and the FHWA expect that States will want 
to know as soon as possible whether their laws satisfy the requirements 
of Section 164, or they may want assistance in drafting conforming 
legislation.
    States are strongly encouraged to submit certifications in advance, 
and to request preliminary reviews and assistance from the agencies. 
Requests should be submitted through NHTSA's Regional Administrators, 
who will refer these requests to appropriate NHTSA and FHWA offices for 
review.

Interim Final Rule

    This document is being published as an interim final rule. 
Accordingly, the new regulations in Part 1275 are fully in effect 30 
days after 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. Some State legislatures do not meet every 
year. Other State legislatures do meet every year, but limit their 
business every other year to certain limited matters, such as budget 
and spending issues. The agencies are aware of six State legislatures 
that are not scheduled to meet at all in the Year 2000, and additional 
State legislatures may have limited agendas in that year. These States 
will have just one opportunity (during the 1999 session of their State 
legislatures) to enact conforming legislation, and they are preparing 
agendas and proposed legislation now for their 1999 legislative 
sessions. These States have an urgent need to know what the criteria 
will be as soon as possible so they can develop and enact conforming 
legislation and avoid the transfer of funds on October 1, 2000.
    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 avoid 
the transfer of funds under this new program are similar to procedures 
that States have followed in other 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 demonstrate that 
they have a conforming repeat intoxicated driver law are derived from 
the Federal statute and are similar to some of the criteria that were 
included under the Section 408 and 410 programs. The regulations that 
implemented NHTSA's Section 408 and 410 programs 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 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 1275.

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 December 
18, 1998. To expedite the submission of comments, simultaneous with the 
issuance of this notice, NHTSA and the 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 the Docket 98-XXXX 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 not a significant 
action within the meaning of Executive Order 12866 or significant 
within the meaning of Department of Transportation Regulatory Policies 
and Procedures. States can choose to enact and enforce a repeat 
intoxicated driver law, in conformance with Public Law 105-206, and 
thereby avoid the transfer of

[[Page 55802]]

Federal-aid highway funds. Alternatively, if States choose not to enact 
and enforce a conforming law, their funds will be transferred, but not 
withheld. Accordingly, the amount of funds provided to each State will 
not change.
    In addition, the costs associated with this rule are minimal and 
are expected to be offset by resulting highway safety benefits. The 
enactment and enforcement of repeat intoxicated driver laws should help 
to reduce impaired driving, which is a serious and costly problem in 
the United States. Accordingly, further economic assessment is not 
necessary.
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. This rulemaking implements a new program 
enacted by Congress in the TEA-21 Restoration Act. As the result of 
this new Federal program and the implementing regulation, States will 
be subject to a transfer of funds if they do not enact and enforce 
repeat intoxicated driver laws that provide for certain specified 
mandatory penalties. This interim final rule will affect only State 
governments, which are not considered to be small entities as that term 
is defined by the Regulatory Flexibility Act. 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, and have determined that it will not 
have a significant effect on the human environment.
The Unfunded Mandates Reform Act
    The Unfunded Mandates Reform Act of 1995 (Pub. L. 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 the 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, because the resulting annual expenditures will not 
exceed the $100 million threshold. In addition, the program is optional 
to the States. States may choose to enact and enforce a conforming 
repeat intoxicated driver law and avoid the transfer of funds 
altogether. Alternatively, if States choose not to enact and enforce a 
conforming law, funds will be transferred, but no funds will be 
withheld from any State.
Executive Order 12612 (Federalism)
    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, a 
Federalism Assessment has not been prepared.

List of Subjects in 23 CFR Part 1275

    Alcohol and alcoholic beverages, Grant programs-- transportation, 
Highway safety.

    In accordance with the foregoing, a new Part 1275 is added to 
Subchapter D, of title 23 of the Code of Federal Regulations to read as 
follows:

PART 1275--REPEAT INTOXICATED DRIVER LAWS

Sec.
1275.1  Scope.
1275.2  Purpose.
1275.3  Definitions.
1275.4  Compliance criteria.
1275.5  Certification requirements.
1275.6  Transfer of funds.
1275.7  Use of transferred funds.
1275.8  Procedures affecting States in noncompliance.

    Authority: 23 U.S.C. 164; delegation of authority at 49 CFR 
Secs. 1.48 and 1.50.


Sec. 1275.1  Scope.

    This part prescribes the requirements necessary to implement 
Section 164 of Title 23, United States Code, which encourages States to 
enact and enforce repeat intoxicated driver laws.


Sec. 1275.2  Purpose.

    The purpose of this part is to specify the steps that States must 
take to avoid the transfer of Federal-aid highway funds for 
noncompliance with 23 U.S.C. 164.


Sec. 1275.3  Definitions.

    As used in this part:
    (a) Alcohol concentration means grams of alcohol per 100 
milliliters of blood or grams of alcohol per 210 liters of breath.
    (b) Driver's motor vehicle means a motor vehicle with a title or 
registration on which the repeat intoxicated driver's name appears.
    (c) Driving while intoxicated means driving or being in actual 
physical control of a motor vehicle while having an alcohol 
concentration above the permitted limit as established by each State.
    (d) Driving under the influence has the same meaning as ``driving 
while intoxicated.''
    (e) Enact and enforce means the State's law is in effect and the 
State has begun to implement the law.
    (f) Ignition interlock system means a State-certified system 
designed to prevent drivers from starting their car when their breath 
alcohol concentration is at or above a preset level.
    (g) Impoundment or immobilization means the removal of a motor 
vehicle from a repeat intoxicated driver's possession or the rendering 
of a repeat intoxicated driver's motor vehicle inoperable. For the 
purpose of this regulation, ``impoundment or immobilization'' also 
includes the forfeiture or confiscation of a repeat intoxicated 
driver's motor vehicle or the revocation or suspension of a repeat 
intoxicated driver's motor vehicle license plate or registration.
    (h) Imprisonment means confinement in a jail, minimum security 
facility, community corrections facility, house arrest with electronic 
monitoring, inpatient rehabilitation or treatment center, or other 
facility, provided the individual under confinement is in fact being 
detained.
    (i) License suspension means a hard suspension of all driving 
privileges.
    (j) Motor vehicle means a vehicle driven or drawn by mechanical 
power and manufactured primarily for use on public highways, but does 
not include a vehicle operated solely on a rail line or a commercial 
vehicle.
    (k) Repeat intoxicated driver means a person who has been convicted 
previously of driving while intoxicated or driving under the influence 
within the past five years.
    (l) Repeat intoxicated driver law means a State law that imposes 
the minimum penalties specified in Sec. 1275.4 of this part for all 
repeat intoxicated drivers.
    (m) State means any of the 50 States, the District of Columbia or 
the Commonwealth of Puerto Rico.


Sec. 1275.4  Compliance criteria.

    (a) To avoid the transfer of funds as specified in Sec. 1275.6 of 
this part, a State must enact and enforce a law that

[[Page 55803]]

establishes, as a minimum penalty, that all repeat intoxicated drivers 
shall:
    (1) Receive a driver's license suspension of not less than one 
year;
    (2) Be subject to either--
    (i) The impoundment of each of the driver's motor vehicles during 
the one-year license suspension;
    (ii) The immobilization of each of the driver's motor vehicles 
during the one-year license suspension; or
    (iii) The installation of a State-approved ignition interlock 
system on each of the driver's motor vehicles at the conclusion of the 
one-year license suspension;
    (3) Receive an assessment of their degree of alcohol abuse, and 
treatment as appropriate; and
    (4) Receive a mandatory sentence of--
    (i) Not less than five days of imprisonment or 30 days of community 
service for a second offense; and
    (ii) Not less than ten days of imprisonment or 60 days of community 
service for a third or subsequent offense.
    (b) Exceptions. (1) A State may provide limited exceptions to the 
impoundment or immobilization requirements contained in paragraphs 
(a)(2)(i) and (a)(2)(ii) of this section on an individual basis, to 
avoid undue hardship to any individual who is completely dependent on 
the motor vehicle for the necessities of life, including any family 
member of the convicted individual, and any co-owner of the motor 
vehicle, but not including the offender.
    (2) Such exceptions may be issued only in accordance with a State 
law, regulation or binding policy directive establishing the conditions 
under which vehicles may be released by the State or under Statewide 
published guidelines and in exceptional circumstances specific to the 
offender's motor vehicle, and may not result in the unrestricted use of 
the vehicle by the repeat intoxicated driver.


Sec. 1275.5  Certification requirements.

    (a) Until a State has been determined to be in compliance, or after 
a State has been determined to be in non-compliance, with the 
requirements of 23 U.S.C. 164, to avoid the transfer of funds in any 
fiscal year, beginning with FY 2001, the State shall certify to the 
Secretary of Transportation, on or before September 30 of the previous 
fiscal year, that it meets the requirements of 23 U.S.C. 164 and this 
part.
    (b) The certification shall be made by an appropriate State 
official, and it shall provide that the State has enacted and is 
enforcing a repeat intoxicated driver law that conforms to 23 U.S.C. 
164 and Sec. 1275.4 of this part. 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 repeat intoxicated driver law that conforms to the 
requirements of 23 U.S.C. 164 and 23 CFR 1275.4, (citations to State 
law).

    (c) An original and four copies of the certification shall be 
submitted to the appropriate NHTSA Regional Administrator. Each 
Regional Administrator will forward the certifications to the 
appropriate NHTSA and FHWA offices.
    (d) Once a State has been determined to be in compliance with the 
requirements of 23 U.S.C. 164, it is not required to submit additional 
certifications, except that the State shall promptly submit an 
amendment or supplement to its certification provided under paragraphs 
(a) and (b) of this section if the State's repeat intoxicated driver 
legislation changes or the State ceases to enforce its law.


Sec. 1275.6  Transfer of funds.

    (a) On October 1, 2000, and October 1, 2001, if a State does not 
have in effect or is not enforcing the law described in Sec. 1275.4, 
the Secretary shall transfer an amount equal to 1\1/2\ percent of the 
funds apportioned to the State for the fiscal year under each of 23 
U.S.C. 104(b)(1), (b)(3), and (b)(4) to the apportionment of the State 
under 23 U.S.C. 402.
    (b) On October 1, 2002, and each October 1 thereafter, if a State 
does not have in effect or is not enforcing the law described in 
Sec. 1275.4, the Secretary shall transfer an amount equal to 3 percent 
of the funds apportioned to the State for the fiscal year under each of 
23 U.S.C. 104(b)(1), (b)(3), and (b)(4) to the apportionment of the 
State under 23 U.S.C. 402.


Sec. 1275.7  Use of transferred funds.

    (a) Any funds transferred under Sec. 1275.6 may:
    (1) Be used for approved projects for alcohol-impaired driving 
countermeasures; or
    (2) Be directed to State and local law enforcement agencies for 
enforcement of laws prohibiting driving while intoxicated or driving 
under the influence and other related laws (including regulations), 
including the purchase of equipment, the training of officers, and the 
use of additional personnel for specific alcohol-impaired driving 
countermeasures, dedicated to enforcement of the laws (including 
regulations).
    (b) States may elect to use all or a portion of the transferred 
funds for hazard elimination activities eligible under 23 U.S.C. 152.
    (c) The Federal share of the cost of any project carried out with 
the funds transferred under Sec. 1275.6 of this part shall be 100 
percent.
    (d) The amount to be transferred under Sec. 1275.6 of this Part may 
be derived from one or more of the following:
    (1) The apportionment of the State under Sec. 104(b)(1);
    (2) The apportionment of the State under Sec. 104(b)(3); or
    (3) The apportionment of the State under Sec. 104(b)(4).
    (e)(1) If any funds are transferred under Sec. 1275.6 of this part 
to the apportionment of a State under Section 402 for a fiscal year, an 
amount, determined under paragraph (e)(2) of this section, of 
obligation authority will be distributed for the fiscal year to the 
State for Federal-aid highways and highway safety construction programs 
for carrying out projects under Section 402.
    (2) The amount of obligation authority referred to in paragraph 
(e)(1) of this section shall be determined by multiplying:
    (i) The amount of funds transferred under Sec. 1275.6 of this Part 
to the apportionment of the State under Section 402 for the fiscal 
year; by
    (ii) The ratio that:
    (A) The amount of obligation authority distributed for the fiscal 
year to the State for Federal-aid highways and highway safety 
construction programs; bears to
    (B) The total of the sums apportioned to the State for Federal-aid 
highways and highway safety construction programs (excluding sums not 
subject to any obligation limitation) for the fiscal year.
    (f) Notwithstanding any other provision of law, no limitation on 
the total obligations for highway safety programs under Section 402 
shall apply to funds transferred under Sec. 1275.6 to the apportionment 
of a State under such section.


Sec. 1275.8  Procedures affecting States in noncompliance.

    (a) Each fiscal year, each State determined to be in noncompliance 
with 23 U.S.C. 164 and this part, based on NHTSA's and FHWA's 
preliminary review of its certification, will be advised of the funds 
expected to be transferred under Sec. 1275.4 from apportionment, as 
part of the advance notice of apportionments required under 23 U.S.C. 
104(e), normally not later than ninety days prior to final 
apportionment.

[[Page 55804]]

    (b) If NHTSA and FHWA determine that the State is not in compliance 
with 23 U.S.C. 164 and this part, based on the agencies' preliminary 
review, the State may, within 30 days of its receipt of the advance 
notice of apportionments, submit documentation showing why it is in 
compliance. Documentation shall be submitted to the appropriate 
National Highway Traffic Safety Administration Regional office.
    (c) Each fiscal year, each State determined not to be in compliance 
with 23 U.S.C. 164 and this part, based on NHTSA's and FHWA's final 
determination, will receive notice of the funds being transferred under 
Sec. 1275.6 from apportionment, as part of the certification of 
apportionments required under 23 U.S.C. 104(e), which normally occurs 
on October 1 of each fiscal year.

    Issued on: October 14, 1998.
Ricardo Martinez,
Administrator, National Highway Traffic Safety Administration.
Anthony Kane,
Executive Director, Federal Highway Administration.
[FR Doc. 98-27969 Filed 10-14-98; 3:13 pm]
BILLING CODE 4910-59-P