[Federal Register Volume 65, Number 193 (Wednesday, October 4, 2000)]
[Rules and Regulations]
[Pages 59112-59124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25384]


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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

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

ACTION: Final rule.

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SUMMARY: This document adopts as a final rule, with some changes, the 
regulations that were published in an interim final rule to implement a 
new program established by the Transportation Equity Act for the 21st 
Century (TEA 21) Restoration Act. The final rule provides for a 
transfer of Federal-aid highway construction funds authorized under 23 
U.S.C. 104 to the State and Community Highway Safety Program under 23 
U.S.C. 402 for any State that fails to enact and enforce a conforming 
``repeat intoxicated driver'' law.

DATES: This final rule becomes effective on October 4, 2000.

FOR FURTHER INFORMATION CONTACT: In NHTSA: Mr. Glenn Karr, 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, National Highway Traffic Safety Administration, 400 Seventh 
Street SW., Washington, DC 20590. In FHWA: Mr. Byron E. Dover, Safety, 
HSA-1, telephone (202) 366-2161; or Mr. Raymond W. Cuprill, Office of 
the Chief Counsel, HCC-20, telephone (202) 366-0834, Federal Highway 
Administration, 400 Seventh Street SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:   

Table of Contents

I. Background
    A. The Problem of Impaired Driving
    B. Repeat Intoxicated Driver Laws
    C. Section 164 Repeat Intoxicated Driver Law Program
II. Interim Final Rule
    A. Compliance Criteria
    B. Demonstrating Compliance
    C. Enforcement
    D. Notification of Compliance
III. Written Comments
    A. Comments Received
    B. General Comments
    C. Definitions Adopted in the Interim Final Rule
    D. Specific Comments Regarding the Repeat Intoxicated Driver 
Criteria
    1. A minimum one-year license suspension
    2. Impoundment or immobilization of, or the installation of an 
ignition interlock system on, motor vehicles
    3. An assessment of their degree of alcohol abuse, and treatment 
as appropriate
    4. Mandatory minimum sentence
    E. Certifications
    F. Transfer of Funds
IV. Regulatory Analyses and Notices
    A. Executive Order 12778 (Civil Justice Reform)
    B. Executive Order 12866 (Regulatory Planning and Review) and 
DOT Regulatory Policies and Procedures
    C. Regulatory Flexibility Act
    D. Paperwork Reduction Act
    E. National Environmental Policy Act
    F. The Unfunded Mandates Reform Act
    G. Executive Order 13132 (Federalism)

I. Background

    The Transportation Equity Act for the 21st Century (TEA 21), H.R. 
2400, Pub. Law 105-178, was signed into law on June 9, 1998. On July 
22, 1998, the TEA 21 Restoration Act (the Act), Pub. Law 105-206, was 
enacted to restore provisions that had been agreed to by the conferees 
on TEA 21, 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 program to 
transfer a percentage of a State's Federal-aid highway construction 
funds 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 that provides 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.
    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 instead to use all or 
a portion of the funds for hazard elimination activities, under 23 
U.S.C. section 152.

A. The Problem of Impaired Driving

    Injuries caused by motor vehicle traffic crashes are the leading 
cause of death in America for people aged 5 to 29. Each year, traffic 
crashes in the United States claim approximately 41,000 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 
1999, alcohol was involved in approximately 38 percent of fatal traffic 
crashes. Every 33 minutes, someone in this country dies in an alcohol-
related crash. Impaired driving is the most frequently committed 
violent crime in America.

B. 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. To 
encourage States to enact and enforce effective impaired driving laws, 
Congress has created a number of different programs. Under the section 
410 program (23 U.S.C. 410), and its predecessor the section 408 
program (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.

[[Page 59113]]

    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.

C. Section 164 Repeat Intoxicated Driver Law Program

    Section 164 provides that, on October 1 of each year, 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 fails to 
enact and enforce a conforming ``repeat intoxicated driver'' law. If a 
State does not meet the statutory requirements on October 1, 2000 or 
October 1, 2001, an amount equal to one and one-half percent of the 
funds apportioned to the State will be transferred. If a State does not 
meet the statutory requirements on October 1, 2002, or on October 1 of 
any subsequent year, an amount equal to three percent of the funds 
apportioned to the State will be transferred.
    To avoid the transfer of funds, a State must enact and enforce a 
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.

II. Interim Final Rule

    On October 19, 1998, NHTSA and the FHWA published an interim final 
rule in the Federal Register to implement the section 164 program (63 
FR 55798). The interim final rule provided that, to avoid the transfer 
of funds, a State must have a law that has been enacted and made 
effective, and the State must be actively enforcing the law. In 
addition, the law must meet certain requirements.

A. Compliance Criteria

    The interim final rule provided that, to avoid a transfer of funds, 
a State must meet the following requirements:
    1. A minimum one-year license suspension. The State's law must 
impose a mandatory minimum one-year driver's license suspension or 
revocation on all repeat intoxicated drivers. Accordingly, during the 
one-year term, the offender cannot be eligible for any driving 
privileges, such as a restricted or hardship license.
    2. Impoundment or immobilization of, or the installation of an 
ignition interlock system on, motor vehicles. The State's law must 
require the impoundment or immobilization of, or the installation of an 
ignition interlock on, all motor vehicles owned by the repeat 
intoxicated offender. To comply with this criterion, the State law must 
require that the impoundment or immobilization be imposed during the 
one-year suspension term, or that the ignition interlock system be 
installed at the conclusion of the suspension period.
    3. An assessment of their degree of alcohol abuse, and treatment as 
appropriate. To avoid the transfer of funds, the State's law must 
require that all repeat intoxicated drivers undergo an assessment of 
their degree of alcohol abuse and the law must authorize the imposition 
of treatment as appropriate.
    4. Mandatory minimum sentence. The State's 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.
    A more detailed discussion of the four elements described above is 
contained in the interim final rule (63 FR 55798-800).

B. Demonstrating Compliance

    Section 164 provides that nonconforming States will be subject to 
the transfer of funds beginning in fiscal year 2001. The interim final 
rule provides that, to avoid the transfer, each 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 section 1275 of this part. A more detailed 
discussion regarding the certifications is contained in the interim 
final rule (63 FR 55800).

C. Enforcement

    Section 164 provides that a State must not only enact a conforming 
law, but must also enforce the law. In the interim final rule, the 
agencies encouraged the States to enforce their repeat intoxicated 
driver laws rigorously. In particular, the agencies recommended that 
States incorporate into their enforcement efforts activities designed 
to inform law enforcement officers, prosecutors, members of the 
judiciary and the public about all aspects of their repeat intoxicated 
driver laws. States should also take steps to integrate their repeat 
intoxicated driver enforcement efforts into their enforcement of other 
impaired driving laws.
    To demonstrate that they are enforcing their laws under the 
regulations, the interim rule indicated that States are required to 
submit a certification that they are enforcing their laws.

D. Notification of Compliance

    The interim final rule provided that, 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 yet been determined by the agencies, based 
on the State's laws and a conforming certification, to comply with 
section 164 and the implementing regulations, the agencies will make an 
initial determination that the State does not comply with section 164, 
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 until 
September 30 to rebut the initial determination or to come into 
compliance. 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.

III. Written Comments

    The agencies requested written comments from interested persons on 
the interim final rule. The agencies stated in the interim rule that 
all comments submitted would be considered and that, following the 
close of the comment period, the agencies would publish a document in 
the Federal Register responding to the comments and, if appropriate, 
make revisions to the provisions of part 1275.

[[Page 59114]]

A. Comments Received

    The agencies received submissions from thirteen commenters in 
response to the interim final rule. Comments were received from five 
States, three organizations representing State interests and five other 
individuals or organizations with an interest in the issues being 
considered as part of these proceedings. The State comments were 
submitted by Tricia Roberts, Director of the Delaware Office of Highway 
Safety, Brian J. Bushweller, Secretary of the Delaware Department of 
Public Safety and Anne P. Canby, Secretary of the Delaware Department 
of Transportation (Delaware); James R. DeSana, Director of the Michigan 
Department of Transportation and Betty J. Mercer, Division Director of 
the Office of Highway Safety Planning, Michigan Department of State 
Police (Michigan); Thomas E. Stephens, P.E., Director of the Nevada 
Department of Transportation (Nevada); Keith C. Magnusson, Director of 
Driver and Vehicle Services, North Dakota Department of Transportation 
(North Dakota); and Charles H. Thompson, Secretary of the Wisconsin 
Department of Transportation (Wisconsin).
    The comments received from organizations representing State 
interests were submitted by Kenneth M. Beam, President and CEO of the 
American Association of Motor Vehicle Administrators (AAMVA); Carl D. 
Tubbesing, Deputy Executive Director of the National Conference of 
State Legislatures (NCSL); and K. Craig Allred, Director of the Utah 
Highway Safety Office, who commented in his capacity as the Chair of 
the National Association of Governors' Highway Safety Representatives 
(NAGHSR).
    The comments from individuals or organizations with an interest in 
the issues being considered in these proceedings were submitted by 
Mothers Against Drunk Driving (MADD); Richard Freund, President of 
LifeSafer Interlock, Inc. (LifeSafer); Henry Jasny, General Counsel for 
Advocates for Highway and Auto Safety (Advocates); Robert B. Voas, 
Ph.D., of the Pacific Institute (Dr. Voas); and James Hedlund of 
Highway Safety North (Dr. Hedlund).
    Additionally, while not written in response to this rulemaking 
action, the National Transportation Safety Board (NTSB) issued a Safety 
Recommendation (H-00-27) to the Secretary of Transportation on August 
7, 2000, related to the section 164 program.
    The comments, and the agencies' responses to them, are discussed in 
detail below. Also discussed below are certain changes that the 
agencies have decided to make in this final rule based on their 
experience reviewing State laws and proposed legislation since the 
issuance of the interim final rule.

B. General Comments

    Some of the comments submitted in response to the interim final 
rule commended the agencies on the manner in which the interim rule 
implemented the statutory requirements. North Dakota, for example, 
stated that it did ``not have any problems with the text of the 
regulation'' and that the regulations ``appear to track with the law'' 
and ``seem to be straight forward and appropriate.'' Advocates also 
supported the interim regulations. Its comments provided that ``in 
nearly all respects, the agencies have made reasoned and well thought 
out decisions in areas left to agency discretion by the statute.''
    Many of the comments, however, were critical of the section 164 
program in general. While most commenters recognized that the criteria 
that States must meet and the consequences that will result to any 
State that fails to comply with them were defined by statute, many of 
the commenters were critical of these features of the program.
    For example, regarding the use of consequences for State non-
compliance, Delaware asserted that, while it ``has long supported 
efforts to reduce impaired driving on our roadways, we strongly oppose 
the sanctions related to this Repeat Intoxicated Driver Law. We believe 
that transfer penalties interfere with the [States'] progress towards 
comprehensive efforts.'' Michigan recommended that Congress should 
establish instead a ``performance-based alternative'' under which 
States ``can demonstrate measurable, significant success in reducing 
recidivism, either within the state or as compared to the national 
average.'' NCSL and the State of Wisconsin also objected to the use of 
transfer sanctions.
    Regarding the statutory criteria that States must meet to avoid the 
sanction, NCSL expressed its belief that ``a one-size-fits-all approach 
is not the best way to tackle the nation's drunk driving problem.'' In 
addition, NAGHSR and some of the State commenters predicted that the 
criteria are so stringent, it is unlikely that any State will fully 
comply.
    NHTSA and the FHWA acknowledge that some of the compliance criteria 
are strictly defined in section 164 and that some may consider the 
consequences established in section 164 for States that fail to comply 
with these criteria to be rather severe. However, the agencies are 
bound to implement the section 164 program, in accordance with the 
requirements that were established by the statute. Regarding Michigan's 
suggestion that a performance-based alternative be established, we note 
that Congress has established performance-based programs under section 
157 (for seat belt use) and section 410 (for impaired driving), but 
Congress has thus far chosen to use a different approach in the area of 
repeat intoxicated drivers.
    Moreover, we note that this program has had a significant impact on 
State repeat intoxicated driver laws. Since the enactment of the TEA 21 
Restoration Act, State repeat intoxicated driver laws have been 
strengthened, through the passage of new legislation, in 19 States and 
the District of Columbia. NHTSA has determined that the laws of nearly 
half the States (23 of them to date) and the District of Columbia fully 
comply with the section 164 requirements.
    Finally, we note that, in the Safety Recommendation that it issued 
to the Secretary on August 7, 2000, NTSB submitted detailed comments 
regarding the statutory requirements contained in section 164. NTSB 
stated that the section 164 program represents ``a substantial effort 
by Congress to address the hard core drinking driver problem * * * 
However, the Safety Board believes that this legislation could be even 
more effective.'' The Board recommended that the agency:

    Evaluate modifications to the provisions of [the TEA 21 
Restoration Act] so that it can be more effective in assisting the 
States to reduce the hard core drinking driver problem [and] 
recommend changes to Congress as appropriate. Considerations should 
include (a) a revised definition of ``repeat offender'' to include 
administrative actions on DWI offenses; (b) mandatory treatment for 
hard core offenders; (c) a minimum period of 10 years for records 
retention and DWI offense enhancement; (d) administratively imposed 
vehicle sanctions for hard core drinking drivers; (e) elimination of 
community service as an alternative to incarceration; and (f) 
inclusion of home detention with electronic monitoring as an 
alternative to incarceration.

    Since NTSB's comments recommend that the agency seek legislative 
changes to the section 164 program, these comments will not be 
addressed specifically in this final rule. These recommendations are 
being considered separately by the agency, outside the scope of this 
rulemaking action.

C. Definitions Adopted in the Interim Final Rule

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

    a ``repeat intoxicated driver law'' * * * that provides * * * 
that an individual

[[Page 59115]]

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 incorporated this definition into the interim final rule. The 
interim rule also defined the term ``repeat intoxicated driver.'' 
Consistent with other programs conducted by the agencies and with State 
laws and practices, the interim regulations provided 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 terms ``driving while intoxicated'' and ``driving under the 
influence'' were defined in the statute to mean ``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.'' 
The statute also defined the term ``alcohol concentration.'' The 
interim regulations adopted these definitions without change.
    The agencies received a number of comments regarding these 
definitions. Most of the comments sought to expand the definition of 
the terms ``driving while intoxicated'' and ``driving under the 
influence,'' so that a broader set of offenses would result in 
mandatory sanctions.
    For example, MADD, Dr. Hedlund and Dr. Voas questioned the use of 
language in this definition, which provides that offenders must have 
had ``an alcohol concentration above the permitted limit as established 
by [the] State.'' As Dr. Hedlund explained in his comments, the 
inclusion of this language ``raises the issue of whether an alcohol 
concentration test is required to establish the offense of driving 
while intoxicated (or driving under the influence). In practice, for a 
variety of reasons, it is not possible to obtain an alcohol 
concentration test for every individual arrested for driving while 
intoxicated. In particular, some individuals refuse to provide a breath 
test. But many individuals are convicted of driving while intoxicated 
without an alcohol concentration test, based on other evidence obtained 
by the arresting officer.'' Accordingly, these three commenters urged 
the agencies to modify the interim regulations to clarify that the 
mandatory sanctions must apply to offenders who are convicted of 
``driving while intoxicated'' or ``driving under the influence,'' even 
if their alcohol concentrations are not known.
    The agencies agree with these comments. Offenders who were 
convicted of driving while intoxicated or driving under the influence 
should not avoid the mandatory sanctions, simply because their alcohol 
concentrations are not known. Congress would not have intended such an 
outcome. To provide clarification in the implementing regulations, the 
agencies have modified the definition of the terms ``driving while 
intoxicated'' and ``driving under the influence'' to mean ``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, or an equivalent non-BAC intoxicated driving offense.''
    These definitions should clarify that, to comply with the Section 
164 program, a State's law must apply the mandatory sanctions to any 
offender who is convicted of driving while intoxicated or driving under 
the influence of alcohol, whether or not the conviction is based on the 
offender's alcohol concentration level. The definitions should clarify 
also that the driving while intoxicated or driving under the influence 
offense must be the ``standard'' offense in the State. In other words, 
the sanctions need not apply to lesser included offenses (such as .05 
BAC driving while impaired offenses), but it is not sufficient if the 
sanctions apply only to ``high BAC'' (such as .17 or .20 BAC) offenses.
    MADD and the State of Wisconsin recommended two additional changes. 
They urged the agencies to expand these definitions to require the 
imposition of mandatory sanctions on offenders who refuse to submit to 
an alcohol test, even if they are not convicted of driving while 
intoxicated or driving under the influence, and on offenders who are 
convicted of driving while under the influence ``of drugs'' other than 
alcohol.
    The agencies are unable to adopt these recommendations because they 
are outside the scope of the section 164 program, as authorized by 
Congress. section 164 specifically provides that a conforming ``repeat 
intoxicated driver law'' is a law that applies the specified mandatory 
sanctions to individuals ``convicted'' of a second or subsequent 
offense. Accordingly, the agencies do not have the authority to require 
that States apply these sanctions to offenders who are not convicted of 
the driving while intoxicated or driving while under the influence 
offense. As discussed above, the agencies have modified the regulations 
to clarify that the mandatory sanctions specified in section 164 must 
apply to offenders who refuse to submit to an alcohol test and are 
convicted of driving while intoxicated or driving under the influence. 
However, the sanctions need not apply to offenders who refuse to submit 
to an alcohol test and are not convicted of such an offense. Of course, 
if States choose to apply additional sanctions to these offenders, the 
section 164 program will not prevent them from doing so.
    Similarly, there is nothing in the language or the legislative 
history of section 164 that indicates that Congress expected that the 
mandatory sanctions must apply to offenders convicted of driving under 
the influence ``of drugs'' other than alcohol. In fact, several 
portions of the statute make it clear that the program was designed 
specifically to address repeat offenders convicted only of driving 
while intoxicated or under the influence ``of alcohol.'' For example, 
the offenses are defined to require that the driver had ``an alcohol 
concentration above the permitted limit.'' In addition, two of the 
sanctions that must be imposed include requiring ``an assessment of the 
individual's degree of abuse of alcohol [not drugs]'' and vehicle 
sanctions, such as ``the installation of an ignition interlock system'' 
on the offenders'' vehicles, which would prevent the offender from 
starting or operating a vehicle with any alcohol (not drugs) in his or 
her system.
    Since these recommended changes would exceed the scope of section 
164, they have not been adopted in this final rule.
    As stated above, the interim regulations defined the term ``repeat 
intoxicated driver'' to mean ``a person who has been convicted 
previously of driving while intoxicated or driving under the influence 
within the past five years.'' The agencies received two comments, from 
the State of Delaware and from Advocates, regarding the meaning of this 
definition.
    Specifically, Delaware noted that ``this provision does not take 
into account an offender who has been arrested of more than one DUI 
offense within a 5 year period but has not been convicted of both at 
the time of the second or subsequent arrest.'' Advocates requested 
clarification about the effect of this definition on States that do not 
maintain or, ``look back'' at, records for the full five-year period. 
According to Advocates, ``the agencies do not unequivocally state that 
laws with only a 3 year ``look back'' provision do not comply with the 
implementing regulations in the interim final rule.''

[[Page 59116]]

    The agencies wish to verify that Delaware's interpretation of the 
regulations is correct. To determine whether an individual is a repeat 
intoxicated offender for the purpose of this program, the State is 
required to consider whether an individual was convicted (not arrested) 
more than once within a five-year period. In response to the comments 
received from Advocates, we wish to clarify that, to comply with the 
section 164 requirements, States must not only provide that mandatory 
sanctions apply to offenders convicted more than once within a five-
year period, the States must also ensure that such sanctions are 
imposed. This requires necessarily that the State has the ability to, 
and in fact does, ``look back'' five (or more) years to determine 
whether the sanctions should be applied.
    To further clarify this definition, the agencies have modified the 
language slightly, so that it now provides that the term ``repeat 
intoxicated driver'' means ``a person who has been convicted of driving 
while intoxicated or driving under the influence of alcohol more than 
once in any five-year period.''

D. Specific Comments Regarding the Repeat Intoxicated Driver Criteria

    Most comments received by the agencies in response to the interim 
final rule related to the specific criteria that repeat intoxicated 
driver laws must meet for a State to avoid a transfer of funds. 
Comments were received regarding each of the four penalties, described 
in the criteria, that State laws must impose on repeat intoxicated 
drivers. These comments and the agencies' responses to them are 
discussed in greater detail below.
1. A Minimum One-Year License Suspension
    Section 164 provides that, to avoid a transfer of funds, the State 
must have a law that imposes a mandatory minimum one-year driver's 
license suspension on all repeat intoxicated drivers. The statute 
defines the term ``license suspension'' to mean ``the suspension of all 
driving privileges.'' Accordingly, the interim final rule provided that 
the offender must be subject to a hard suspension (or revocation), for 
a minimum period of one year, during which the offender cannot be 
eligible for any driving privileges, such as a restricted or hardship 
license.
    The agencies received comments from NAGHSR, LifeSafer, and the 
States of Wisconsin, Michigan and Delaware objecting to the one-year 
hard license suspension requirement. These commenters cited a number of 
reasons for their objections. Wisconsin, NAGHSR and Michigan, for 
example, thought a one-year hard license suspension could result in 
financial hardships to some offenders, particularly those who live in 
rural communities. According to comments from both NAGHSR and Michigan, 
``Rural offenders would be especially adversely impacted since they may 
not be able to arrange for alternative means of transportation during 
such an extended period.'' In addition, Delaware, Wisconsin and 
Michigan suggested that, ultimately, this strict requirement might have 
the unintended effect of, as Delaware put it, offering some offenders 
with ``no alternatives'' and encouraging them to drive without a valid 
license. These commenters all seem to agree that repeat intoxicated 
drivers should be subject to a one-year driver's license suspension 
that includes some period of hard suspension, but they suggested hard 
suspension periods of less than one year, such as 30 or 60 days.
    Further, NAGHSR asserted that it had ``found nothing in the 
legislative history of [section 164] which would support the need for a 
one-year hard license suspension.'' In addition, Michigan stated that 
it thought it ``unlikely that any State will be in compliance with the 
provision'' and NAGHSR predicted that ``few State legislatures will be 
willing to enact [conforming] legislation.''
    The agencies do not share the concerns that were expressed in these 
comments. Regarding the agencies' authority to include in the 
regulations a one-year hard driver's license suspension requirement, 
the agencies have determined that inclusion of this requirement is not 
only supported by section 164's legislative history, but is required by 
the plain language of the statute itself. The statute provides 
specifically that State laws must provide, ``as a minimum penalty, that 
[repeat intoxicated drivers] * * * shall receive a driver's license 
suspension for not less than 1 year'' and the statute defines the term 
``license suspension'' to mean ``the suspension of all driving 
privileges.'' [Emphasis added.]
    Regarding the predictions that few, if any, States would enact 
conforming legislation, we note that, to date, 23 States and the 
District of Columbia have laws that NHTSA has determined meet all the 
section 164 requirements and at least 11 additional States meet the 
one-year hard driver's license suspension criterion, although they do 
not meet all the requirements of the section 164 program. We note also 
that, although they objected initially to this criterion in their 
comments to the interim final rule, Michigan and Utah are two of the 
States whose laws have been determined to comply fully with section 
164, including the one-year hard license suspension requirement.
    Regarding the comments that suggest that a one-year hard license 
suspension could result in financial hardships to some offenders, 
particularly those who live in rural communities, the agencies note 
that the research that has been performed in this area does not support 
that conclusion. Although the research to date has not studied the 
impact of hard suspensions of a full one-year period, there has been 
research that found that hard suspensions of a shorter length of time 
did not have an impact at all on an offender's employment. In a 1996 
study of three States with administrative license revocation programs, 
for example, researchers found that 94% of the offenders who were 
employed at the time of arrest were still working after a one-month 
revocation period. The researchers found also that the percentage of 
offenders still employed one month after arrest was the same in 
comparison States that did not apply a license revocation sanction. 
Moreover, the agencies note that many of the States with conforming 
laws contain regions that are rural in nature. Some of the States with 
conforming laws include Alabama, Arizona, Iowa, New Hampshire, Oregon 
and Utah.
    The agencies recognize, as the commenters do, that many offenders 
who are subject to license suspensions or revocations operate motor 
vehicles anyway, without a valid license. As we noted in the interim 
final rule, 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.
    However, the agencies do not believe that the elimination or even 
the reduction of driver licensing sanctions is the best remedy for this 
problem. We believe that Congress hoped that States would address that 
concern instead by enacting strong vehicle sanctions, including those 
outlined in the second criterion of the section 164 program (and 
discussed in greater detail below), such as by impounding or 
immobilizing the motor vehicles owned by the offender during the 
suspension or revocation period. In addition, States are encouraged, 
under NHTSA's Section 410 program, to establish separate vehicle 
sanctions for offenders who operate a motor vehicle while their license 
is under suspension or revocation.

[[Page 59117]]

    For the reasons discussed above, this portion of the interim 
regulations has been adopted without change.
2. Impoundment or Immobilization of, or the Installation of an Ignition 
Interlock System, on Motor Vehicles
    Section 164 provides that, to avoid the transfer of funds, the 
State must have a law that requires the impoundment or immobilization 
of, or the installation of an ignition interlock on, each motor vehicle 
owned by the repeat intoxicated offender.
    The term ``impoundment or immobilization'' was defined in the 
interim regulations to mean ``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,'' and the agencies 
indicated that the definition would also include ``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.'' The agencies defined the term 
``ignition interlock system'' in the interim regulations 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 interim final rule explained that 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.
    The interim final rule also specified that, to comply with the 
interim regulations, the State law must require that the impoundment or 
immobilization must be imposed during the one-year suspension period, 
or that the ignition interlock be installed at the conclusion of the 
suspension period. The interim regulations did not specify the length 
of time during which these penalties must remain in effect.
    The impoundment, immobilization or ignition interlock criterion is 
the most complex of the section 164 requirements. Accordingly, it is 
not surprising that it generated the most comments. Every respondent 
that submitted comments in response to the interim final rule addressed 
at least some aspect of this requirement. The comments received 
regarding this criterion and the agencies' responses to them are 
discussed in detail below.
    a. Mandatory Penalty. The agencies explained, in the preamble to 
the interim final rule, that 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. Later in the interim rule, when describing the time frame for 
these three penalties, the agencies stated that 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. These statements 
generated four comments regarding the mandatory nature of this 
criterion.
    AAMVA and the State of North Dakota objected to the statement that 
the State law must ``require that at least one of the three penalties 
will be imposed.'' They asserted that the impoundment, immobilization 
or ignition interlock sanctions need only ``be available'' or that they 
``may'' be imposed. These commenters did not believe that these 
sanctions ``must'' be imposed. The agencies disagree. Section 164 
provides for four minimum penalties, and we find that there is nothing 
in either the statutory language or the legislative history to suggest 
that three of the penalties are mandatory and the fourth (the 
impoundment, immobilization or ignition interlock requirement) is 
optional.
    The commenters seem to base their assertion on the fact that the 
statute provides that State laws must require that repeat intoxicated 
drivers must ``receive'' license suspensions, minimum sentences and 
assessment and treatment, while the statute provides that they must 
``be subject to'' the impoundment, immobilization or ignition interlock 
requirement. The agencies conclude that the difference in language in 
this provision does not signify any difference in the mandatory nature 
of the requirement, but is simply a grammatical device used, since an 
offender may ``receive'' a suspension, a sentence, an assessment and 
treatment, but an offender would not ``receive'' an impoundment, 
immobilization or ignition interlock installation. Rather the offender 
is ``subject to'' these sanctions when the sanctions are applied to the 
offender's vehicles. The agencies continue to conclude that, to avoid a 
sanction, the State law must require that at least one of these three 
penalties must be imposed on all repeat intoxicated drivers.
    The State of Nevada objected to the statement in the interim final 
rule that ``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.'' [Emphasis added.] Nevada thought this statement was 
meant to signify that States must impose the impoundment or 
immobilization penalty (during the license suspension period) and also 
the ignition interlock penalty (at the end of the suspension period).
    However, this was not the meaning that the agencies had intended to 
convey. Rather, the statement was included simply to clarify the time 
frames for each of these sanctions. Regarding the mandatory nature of 
these sanctions, the agencies believe the plain language in the interim 
regulations is clear. It provides, ``to avoid the transfer of funds * * 
*, a State must enact and enforce a law that establishes that all 
repeat intoxicated drivers shall * * * be subject to either * * * the 
impoundment * * *, immobilization * * * or ignition interlock 
[sanction].'' In addition, as the agencies explain in the preamble to 
the interim final rule, ``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.'' 
Since the statement which Nevada found ambiguous was in the preamble to 
the rule, and not the interim regulations themselves, no regulatory 
changes are needed in this final rule to clarify this statement.
    Moreover, we note that no other commenters interpreted the interim 
final rule in this way. Advocates, for example, stated in its comments, 
``The agencies appropriately analyzed the distinct purposes of these 
sanctions, and correctly noted that section 164 requires the imposition 
only of one sanction since they are set forth disjunctively in the 
statute.''
    Accordingly, no changes to the interim regulations have been 
adopted in response to these comments.
    b. Timing of the Sanctions. In the interim final rule, the agencies 
explained that 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. Therefore, to determine 
when these penalties must be imposed, the agencies considered the 
purpose of the three penalties.
    The agencies recognized in the interim rule that the purpose of an 
impoundment or immobilization sanction is very different from that of 
the installation of an ignition interlock system. We explained that, 
when an individual convicted of driving while intoxicated is subject to 
a driver license suspension, it is expected that the

[[Page 59118]]

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.
    Accordingly, the agencies concluded that the laws that provide for 
the impoundment or immobilization of motor vehicles are designed to 
ensure that driver's license suspension sanctions are not ignored. They 
seek to prevent offenders from driving vehicles while their driver's 
licenses are under suspension.
    The agencies explained in the interim final rule that 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. The agencies stated that 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 permitted to drive again, from drinking and 
driving.
    Based on the nature of these penalties, the agencies decided in the 
interim final rule not to adopt a uniform time frame for these three 
penalties. Instead, the interim regulations provided that the State law 
must require either the impoundment or immobilization of the offender's 
vehicles during the one-year suspension term or the installation of an 
ignition interlock system at the conclusion of the suspension. The 
interim regulations did not specify the length of time during which 
these penalties must remain in effect.
    The agencies received a number of comments regarding these features 
of the interim regulations.
    Some of the comments expressed support for these aspects of the 
interim regulations. For example, Advocates stated, ``the agencies 
accurately recognize that impoundment or immobilization are sanctions 
that should be imposed concurrently with a one-year suspension, whereas 
the ignition interlock would logically apply after the suspension is 
completed.'' However, most of the comments received by the agencies 
were critical of these aspects of the interim rule.
    Regarding the application of impoundment or immobilization 
sanctions, many of the commenters were troubled that the interim 
regulations did not establish a minimum length of time for these 
penalties. NCSL, NAGHSR and the State of Michigan, for example, were 
concerned that a State could comply with this requirement by impounding 
or immobilizing a vehicle for a single day, and MADD and LifeSafer 
ventured that a State may even be able to comply by impounding or 
immobilizing a vehicle for only an hour. Some of the commenters 
specified a minimum period of time that would be appropriate, such as 
30 days, which was suggested by MADD and Dr. Voas, or 15-30 days, which 
was suggested by LifeSafer.
    Some of the commenters also suggested that the impoundment or 
immobilization sanction should be imposed quickly, to maximize the 
impact of these sanctions and to prevent offenders from transferring 
their vehicles. MADD, LifeSafer and Dr. Voas, for example, urged the 
agencies to require that such sanctions occur immediately, at the time 
of the offender's arrest.
    Regarding the installation of ignition interlock devices, many of 
the commenters objected to the requirement that ignition interlock 
devices must be installed at the conclusion of the one-year driver's 
license suspension. LifeSafer asserted that these devices have been 
shown to be effective and predicted that a one-year delay would greatly 
curtail their use. NCSL and the State of Michigan thought it was 
unlikely that any State would adopt the ignition interlock sanction 
under these conditions. MADD asserted that, ``the longer the ignition 
interlock device remains on the offender's vehicle, the more effective 
it is in changing his or her behavior and increasing the likelihood of 
reducing recidivism.'' Accordingly, MADD suggested that ignition 
interlock devices should be installed at the time of arrest and should 
remain on the offender's vehicle for a minimum period of one year 
following license reinstatement.
    The agencies have decided not to change the regulations in response 
to these comments. As the agencies explained in the interim final rule, 
while section 164 required that State laws must provide for the 
impoundment or immobilization of, or the installation of an ignition 
interlock device on, motor vehicles, the statute was silent regarding 
the timing of these sanctions. Section 164 did not specify the length 
of time that these sanctions must remain in effect, or require that 
these sanctions must take place immediately at the time of arrest.
    Moreover, the use of these sanctions is still a relatively new 
development in the field of impaired driving countermeasures. The 
agencies do not believe there are currently sufficient research 
findings to dictate a minimum period of time for these sanctions, in 
the absence of statutory direction. In addition, while States may 
choose to require the imposition of these sanctions at the time of the 
offender's arrest as part of their programs, the agencies do not 
believe we have sufficient information, in the absence of statutory 
direction, to make this a condition of compliance. Plus, we do not want 
to stifle innovation. The rule has been drafted, within the framework 
of the statute, to provide States with as much flexibility as possible, 
to enable them to establish the terms for conducting their programs in 
ways that are most appropriate under their own statutory schemes.
    While a number of the commenters were concerned that States would 
be able to qualify under this criterion by impounding or immobilizing 
vehicles for only a day or even an hour, the agencies note that, to 
date, 11 States and the District of Columbia have demonstrated 
compliance with this section 164 criterion based on an impoundment or 
immobilization law, and no State law provides that vehicles (or the 
license plate or registration) will be impounded or immobilized for 
such an insignificant period of time. Although two States provide for a 
five-day minimum and one State requires a 30 day minimum impoundment or 
immobilization, all other States and the District of Columbia require 
that the impoundment or immobilization remain in effect for the 
duration of the license suspension or for a minimum of at least one 
year.
    Regarding the installation of ignition interlock devices, the 
agencies recognize that a significant number of offenders continue to 
drive even after they lose their driving privileges, and that many of 
them choose not to reapply for a license even once they become eligible 
to do so. We recognize also that ignition interlock devices have been 
shown to be effective at reducing the incidence of impaired driving 
during their use. Accordingly, the agencies appreciate the sentiments 
expressed by a number of the commenters, who suggested that strategies 
be used to create an incentive for repeat offenders to drive only with 
a valid license and not to drink and drive. These commenters 
recommended that we permit States to restore restricted driving 
privileges to repeat intoxicated drivers and install ignition interlock 
devices on their vehicles prior to the completion of a one-year hard 
license suspension.
    However, the agencies continue to conclude that such a strategy is 
not permitted under section 164, since the

[[Page 59119]]

statute specifically provides under the first criterion (discussed in 
detail above) that State laws must require that repeat intoxicated 
drivers receive a one-year suspension of all their driving privileges. 
In addition, we find that, while the installation of ignition 
interlocks has been shown to reduce the incidence of drinking and 
driving, other strategies (such as impoundment, immobilization or 
strict driving while suspended laws) may be more appropriate when 
seeking to prevent offenders whose licenses have been suspended from 
getting behind the wheel of a vehicle during their periods of 
suspension.
    Morever, we note that, if States choose to install ignition 
interlock devices on offenders' vehicles prior to the end of the one-
year license suspension, as an extra measure of protection against 
impaired driving, even though the offender should not be driving at 
all, the regulations will not prevent the States from doing so. 
However, to satisfy the one-year license suspension criterion of 
section 164, such States may not restore to these offenders any driving 
privileges during the one-year period. In addition, to satisfy the 
impoundment, immobilization or ignition interlock criterion of section 
164, the ignition interlock devices must remain on the offenders' 
vehicles for some period of time after the license suspension has 
ended.
    While some commenters were concerned that States would not be 
willing to adopt a law that provides for the installation of ignition 
interlock devices under the conditions established in the interim 
regulations, the agencies note that, to date, 12 States have 
demonstrated compliance with this section 164 criterion based on an 
ignition interlock law.
    For all of the reasons discussed above, the agencies have adopted 
this portion of the interim regulations without change.
    c. All Vehicles Owned by the Offender. The agencies indicated in 
the interim final rule that, 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 number of comments were submitted to the agencies objecting to 
this feature of the rule. The comments raised two types of concerns. 
Some considered this requirement to be overly broad; others considered 
its scope not to be broad enough.
    The commenters who considered the requirement to be overly broad 
called it ``unreasonably severe,'' ``unjustified'' and ``counter 
productive.'' Dr. Hedlund of Highway Safety North, for example, 
explained that ``State impoundment and immobilization laws typically 
apply to a single vehicle (the vehicle driven by the offender when the 
offense was committed), not to all vehicles owned by the offender'' and 
that ``State interlock programs typically require the offender to 
install an interlock on his (or her) primary vehicles and require the 
offender to drive only that vehicle.''
    Dr. Hedlund, LifeSafer, NAGHSR and others expressed concern that 
such a strict application of this requirement could prove to be a 
disincentive to its adoption and use. In addition, the State of 
Wisconsin questioned whether the impoundment or seizure of all vehicles 
owned by an offender would raise constitutional issues. As an 
alternative, LifeSafer recommended that the ignition interlock sanction 
should be ``tied'' to the offender's license, rather than to the 
vehicles owned by the offender (i.e., as a license restriction that 
provides that the offender may drive only vehicles on which ignition 
interlocks are installed). Finally, NAGHSR asserted that ``nothing in 
the legislative history of this provision indicates that Congress 
intended the sanctions to apply to every vehicle owned by the 
offender.''
    Regarding the agencies' authority to require that these sanctions 
apply to every vehicle owned by the offender, the agencies have 
determined that inclusion of this requirement is not only supported by 
section 164's legislative history, but is required by the plain 
language of the statute itself. Section 164 provides specifically that 
repeat intoxicated offenders must ``be subject to the impoundment or 
immobilization of each of the individual's motor vehicles or the 
installation of an ignition interlock system on each of the motor 
vehicles [emphasis added].''
    The agencies believe Congress established these requirements 
because, for repeat offenders, taking his or her vehicle at the time of 
arrest and placing an ignition interlock restriction on the offender's 
license may not be enough. Congress wanted to do more than get the 
attention of these offenders. Congress wanted States to take steps to 
prevent repeat intoxicated drivers from driving at all during their 
license suspension or from drinking and driving once their licenses 
were returned. If one of the offender's vehicles has been impounded or 
immobilized, but another vehicle is available at home, or if one of the 
offender's vehicles is fitted with an ignition interlock device and 
another is not, these objectives may not be achieved.
    Moreover, the agencies note that, to date, 25 States and the 
District of Columbia have been determined to comply with this 
criterion, by applying either an impoundment, immobilization or the 
installation of ignition interlock devices on all motor vehicles owned 
by repeat intoxicated drivers.
    The commenters who considered the requirement not to be broad 
enough were concerned that offenders could avoid these sanctions by 
using a variety of ``loopholes.'' Dr. Hedlund of Highway Safety North, 
MADD and the State of Michigan, for example, were concerned that 
offenders could transfer title to their vehicles after arrest and prior 
to conviction; the State of Wisconsin suggested that offenders could 
register vehicles using the names of friends or family members, or 
other aliases; and MADD was concerned that offenders could operate 
vehicles that are ``owned'' by other people.
    Section 164 did not require that State laws address these 
particular issues, and the agencies have not expanded this criterion by 
adding any such requirements. The agencies note, however, that some 
States have enacted laws that surpass the minimum requirements 
established in section 164, and include provisions that have the 
potential to ``close'' some of these ``loopholes.'' Some States, for 
example, apply their vehicle sanctions not only to vehicles ``owned'' 
by the repeat offender, but also to vehicles ``operated'' by such 
offender. Other State laws contain provisions that specifically 
prohibit offenders from transferring title to their vehicles. States 
that choose to include in their laws similar provisions, which exceed 
the section 164 requirements, are able (and encouraged) to do so, but 
such provisions are not necessary for the State to demonstrate 
compliance with the impoundment, immobilization or ignition interlock 
criterion.
    For the reasons discussed above, this portion of the interim 
regulations has been adopted without change.
    d. Exceptions Permitted. In the interim final rule, the agencies 
explained that, consistent with past practices under the section 410 
program, the agencies will permit States to provide limited exceptions 
to the impoundment or immobilization requirements 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. However, the 
agencies decided not to permit an exception to the installation of the 
ignition interlock system requirement.

[[Page 59120]]

The interim final rule explained that 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.
    Comments regarding this portion of the interim regulations 
suggested that additional exceptions should be permitted. NAGHSR, NCSL 
and the States of Delaware, Michigan and Wisconsin emphasized that the 
imposition of an impoundment or immobilization or the installation of 
ignition interlock devices can be very costly to offenders and their 
families. Not only do these sanctions cause vehicles to be unavailable, 
but there are also administrative costs associated with the sanctions. 
The commenters asserted that these costs can result in an undue 
financial hardship for many families.
    In addition, NAGHSR and LifeSafer both asserted that there is a 
need for an employer exception. LifeSafer explained that, in States 
where the ignition interlock device is tied to a restriction on the 
license, States ``have recognized the need for an employer exemption 
that allows the offender to operate an employer vehicle in the course 
and scope of employment without the [ignition interlock device]'' so 
long as certain conditions are met. LifeSafer states that the exemption 
is necessary ``to avoid undue hardship on an employer.''
    NAGHSR and LifeSafer indicated that the employer exception they 
seek is needed if the ignition interlock device is tied to a 
restriction on the offender's license. Since section 164 requires that 
the installation of ignition interlocks must be tied to all vehicles 
owned by the offender, and not to the offender's driver's license, the 
agencies believe the employer exception sought by NAGHSR and LifeSafer 
is not needed. Accordingly, the agencies have not added an employer 
exception to the regulations.
    Based on the concerns raised in the comments regarding the 
financial hardship that families may suffer due to the administrative 
expenses that may be imposed in connection with the installation of 
ignition interlock devices on each vehicle owned by the offender, 
however, the agencies have reconsidered their decision to not permit a 
hardship exception to the ignition interlock sanction.
    Accordingly, the interim regulations have been modified in this 
final rule to add an exception to the ignition interlock requirement. A 
State may provide an exception to the ignition interlock requirement 
for financial hardship, provided the State law requires that the 
offender may not drive a vehicle without an ignition interlock system, 
such as by requiring that a restriction be placed on the offender's 
license.
    To ensure that the availability of these exceptions do not 
undermine the impoundment, immobilization or ignition interlock 
requirements, exceptions must be made in accordance with Statewide 
published guidelines developed by the State, and in exceptional 
circumstances specific to the offender's motor vehicle.
    e. Other Comments Related to the Sanctions. The interim regulations 
provided that ``impoundment or immobilization'' included ``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.'' 
The interim regulations provided that these terms include also ``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.''
    LifeSafer objected to this aspect of the interim regulations. 
According to LifeSafer, ``physically revoking the license plate or 
canceling the registration is not anywhere near as strong a message of 
physically taking or rendering incapable the operation [of] a motor 
vehicle. Secondly, the sanction is rendered ineffective because another 
license plate can be quickly obtained or transferred from another 
vehicle or the vehicle re-registered under another name.''
    The agencies find, based on studies conducted in Minnesota and 
Ohio, that the research demonstrates that the revocation or suspension 
of vehicle registrations and license plates is an effective sanction. 
In fact, NHTSA has encouraged States to impose such a sanction on 
repeat offenders and individuals who drive with a suspended driver's 
license, under its section 410 program since 1992. Moreover, the 
agencies are not aware of any research findings that demonstrate a 
significant difference in effectiveness between the impoundment or 
immobilization of a motor vehicle as compared with the revocation or 
suspension of a vehicle registration or license plate. In the absence 
of any such findings, the agencies prefer to provide the States with 
some flexibility in this regard.
    Finally, NAGHSR recommended in its comments that ignition 
interlocks should be used as part of a comprehensive, interrelated 
system, such as one under which the driver's license of the offender is 
suspended and the offender's vehicle is impounded or immobilized for a 
short period (e.g., 15-30 days), at the time of arrest. Once that 
period of time passes, limited driving privileges are restored, the 
vehicle may be reclaimed and an ignition interlock is installed. Then, 
when the offender participates and completes treatment, the ignition 
interlock is removed.
    The agencies appreciate the objectives that NAGHSR seeks to meet by 
suggesting such an approach, and we note that States may take this type 
of approach, if they wish to do so, when fashioning sanctions for first 
offenders. However, as stated previously in this final rule, such an 
approach would not be permitted under section 164 for repeat offenders. 
Under such an approach, a repeat intoxicated driver would be permitted 
to receive driving privileges during the initial one-year driver's 
license suspension period, and the statutory language contained in 
section 164 specifically requires that all driving privileges must be 
suspended for a period of one year. Accordingly, the agencies are 
unable to address this comment without an amendment to the underlying 
statute.
    Accordingly, no changes will be made to the interim regulations in 
response to these particular comments.
3. An Assessment of Their Degree of Alcohol Abuse, and Treatment as 
Appropriate
    Section 164 provides that, to avoid the transfer of funds, the 
State must have a law that requires that all repeat intoxicated drivers 
must receive ``an assessment of the individual's degree of abuse of 
alcohol and treatment as appropriate.'' In the interim final rule, the 
agencies specified further that the State's law must require that all 
repeat intoxicated drivers must undergo an alcohol assessment and the 
law must authorize the imposition of treatment as appropriate.
    The agencies received comments regarding this criterion from 
LifeSafer, NAGHSR, MADD, the State of Delaware and Dr. Voas. Both 
NAGHSR and LifeSafer indicated that they are aware that there are some 
States that provide for mandatory treatment of repeat intoxicated 
offenders, but may not require that these offenders be assessed. In 
their view, since the treatment is provided automatically, these States 
should be considered to be fully in

[[Page 59121]]

compliance with the assessment and treatment requirement.
    It is the view of the agencies that, if a State provides for 
mandatory treatment of repeat intoxicated offenders and the State's 
mandatory treatment program includes a mandatory assessment component, 
such a program will enable the State to demonstrate compliance with the 
section 164 assessment and treatment criterion. If assessments are not 
conducted of all repeat offenders as part of such a program, however, 
the agencies will find that the State's program does not fully comply. 
This decision is based on the agencies' conclusion that the purpose of 
the assessment is to determine not only whether an offender should 
undergo treatment, but also what type and level of treatment is 
appropriate for that offender. Programs that assign treatment to 
offenders without first assessing the needs of those offenders may be 
ineffective in resolving any alcohol abuse problems that the offenders 
may have. The agencies note that, in addition to the District of 
Columbia and the 23 States that meet all of the section 164 
requirements, at least 10 additional States meet the assessment and 
treatment criterion.
    The agencies received comments also from MADD, the State of 
Delaware and Dr. Voas regarding this criterion. According to their 
statements, these commenters do not believe the agencies went far 
enough in the interim regulations when we provided that the State's law 
``must authorize the imposition of treatment as appropriate.'' These 
commenters urged the agencies instead to require that States make 
treatment mandatory. MADD, for example, stated that, ``while the rule 
requires mandatory alcohol assessment, there is no requirement that 
treatment is mandatory even when the results of the assessment calls 
for treatment.'' Dr. Voas explained why he thought such a requirement 
should be adopted. He asserted that ``the value of assessment is 
entirely dependent on the offender receiving the treatment.''
    As the agencies indicated in the interim final rule, there is a 
wide array of programs and activities that can be used to treat 
offenders who have alcohol abuse problems. Because of the many options 
available, the agencies believe it would be difficult to establish a 
specific requirement in the regulations that would have meaning, and 
also provide the States and their judicial systems with the flexibility 
they need to have the greatest impact.
    In his comments, Dr. Voas took particular issue with a statement 
that was included in the preamble to the interim final rule, in which 
the agencies said that, ``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).'' The agencies wish to clarify that, the 
agencies did not mean to imply by this statement that States should not 
refer individuals to treatment if treatment is warranted. Since the 
Section 164 requirements provide that all repeat intoxicated drivers 
must be assessed, we trust that the court systems will refer those 
offenders to treatment when warranted, and that offenders will be 
referred to the treatment that is most appropriate. Since the statement 
to which Dr. Voas objected was in the preamble to the rule, and not the 
interim regulations themselves, no regulatory changes are needed in 
this final rule to clarify this statement.
    For the reasons discussed above, this portion of the interim 
regulations has been adopted without change.
4. Mandatory Minimum Sentence
    Section 164 provides that, to avoid a transfer of funds, the State 
must have a law that imposes 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.
    The agencies explained in the interim final rule that, consistent 
with NHTSA's administration of the section 410 program, the term 
``imprisonment'' has been defined to include ``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.'' 
In addition, we indicated in the interim final rule that house arrests 
would be included within the definition of ``imprisonment'' under the 
section 164 program, provided that electronic monitoring is used.
    We received five comments in response to the interim final rule 
regarding this criterion. Most of the comments received related to the 
agencies' decision to include house arrests within the definition of 
imprisonment.
    MADD and Dr. Voas objected to its inclusion. They argued that a 
house arrest for a period of only five or ten days is not a 
sufficiently strong penalty. MADD, for example, asserted ``House arrest 
does not carry with it the specific deterrence or social stigma that 
incarceration in a jail facility does.'' According to MADD, such a 
penalty ``will have little or no impact on reducing recidivism which is 
the very purpose of this legislation.''
    Conversely, LifeSafer, NAGHSR and Advocates supported the inclusion 
of house arrest, coupled with electronic monitoring, within the 
definition of the term imprisonment. LifeSafer ``applauded'' this 
decision based on its belief that ``jail is the least effective 
sanction to reduce recidivism, States have severe jail overcrowding 
problems * * * [and] studies which indicate electronic monitoring has 
an impact greater than jail on reducing recidivism.'' NAGHSR called 
this aspect of the interim rule the ``most positive attribute of the 
interim final regulations.'' According to Advocates, ``although the 
historic use of the word imprisonment entails confinement in a 
traditional prison facility, we agree with the agencies that non-
traditional approaches and the use of technological advancements should 
be utilized in attempt to make inroads against repeat intoxicated 
offenders. In this regard it is clear that courts are using home 
confinement and monitoring as an alternative means of detaining 
criminal offenders.''
    As noted in the interim final rule, recent NHTSA research seems to 
indicate that house arrests are effective if they are coupled with 
electronic monitoring. While the agencies recognize that the periods of 
house arrest studied tended to be longer than five or ten days, we 
consider this alternative means of detaining offenders to be a 
promising strategy that should not be stifled under the provisions of 
these regulations. Accordingly, the agencies have decided to continue 
to permit States to use house arrest, coupled with electronic 
monitoring, in lieu of other confinement methods.
    Dr. Voas suggested in his comments that, if the use of house arrest 
is permitted under the regulations, the State should extend the period 
of detention from five or ten days to a period of 90 days. The agencies 
do not find authority for establishing such an alternative length of 
time in the section 164 statute. Accordingly, we have not adopted this 
change in the regulations.
    Finally, NCSL pointed out that many States have, over the years, 
enacted mandatory minimum sentences for repeat intoxicated drivers, in 
response to the Federal requirements that were established in the 
section 410 program.

[[Page 59122]]

However, since section 164 requires States to establish a longer 
mandatory sentence (five and ten days, rather than 48 hours), even 
these States will need to enact new legislation. The agencies agree 
with NCSL's observation. However, these longer sentencing requirements 
are dictated by the statute.
    This portion of the interim regulations has been adopted without 
change.

E. Certifications

    The interim final rule provided that, to avoid a transfer of funds, 
each State must submit a certification demonstrating compliance with 
the four section 164 criteria, which includes citations to all 
applicable provisions of their laws, as well as regulations or case 
law, as needed. The certifications must also assert that the State is 
enforcing its law. According to the interim final rule, once a State 
has been determined to be in compliance with the section 164 
requirements, the State would not be required to resubmit 
certifications in subsequent fiscal years, unless the State's law had 
changed or the State had ceased to enforce its repeat intoxicated 
driver law. The interim final rule provided that 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.
    The interim final rule provided further that, to avoid a transfer 
in FY 2001, the agencies must receive a State's certification no later 
than September 30, 2000, and the certification must indicate that the 
State ``has enacted and is enforcing a repeat intoxicated driver law 
that conforms to 23 U.S.C. 164 and [the agencies' implementing 
regulations].'' States found in noncompliance with the 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 a transfer of funds in that 
following fiscal year. The interim rule indicated that such 
certifications must be submitted by October 1 of the following fiscal 
year.
    In its comments in response to the interim final rule, Advocates 
recommended that States should be required to submit more than a 
certification to demonstrate that they are enforcing their repeat 
intoxicated driver laws. Advocates stated, ``while the agencies need 
not require burdensome evidence of such enforcement, some indicia that 
a good faith effort is being made to enforce the repeat offender law 
should be sought. Since convictions and penalties imposed under such a 
law are relatively simple to establish through computerized records, 
the agencies can require some indicia as to the level of state 
enforcement without imposing significant burdens on the states.''
    The agencies have not adopted this change. While there may be 
information in computerized records that States would be able to 
compile and submit to the agencies, we are uncertain how such a 
sufficient ``level of enforcement'' would be defined. Moreover, we find 
that the benefit of such a reporting requirement would not justify the 
effort that would be required.
    Although the agencies did not receive any comments regarding the 
dates by which certifications must be submitted, we have concluded that 
this feature of the regulations requires clarification. The interim 
final rule provided that conforming certifications were due by 
September 30 to avoid a transfer of funds in FY 2001, and that 
certifications from States that did not previously comply with section 
164 were due by October 1 to avoid a transfer of funds in subsequent 
fiscal years. To avoid confusion, the agencies have concluded that the 
same date should apply in any fiscal year. Accordingly, the regulations 
have been changed to provide that, to avoid a transfer of funds in FY 
2001 or in any subsequent fiscal year, States will be required to 
submit certifications by September 30.
    In addition, some States enacted conforming laws prior to September 
30, 2000, but their new laws will not be effective until the next day, 
on October 1, 2000. The interim rule, which requires States to assert 
that they are already enforcing their laws on September 30, did not 
anticipate this occurrence. The agencies have determined that a 
conforming law that becomes effective on October 1 will enable a State 
to avoid a transfer of funds on that date. Accordingly, the agencies 
have amended the regulations to enable these States to certify that 
they have enacted a repeat intoxicated driver law that conforms to 23 
U.S.C. 164 and the agencies' implementing regulations, and that the law 
will become effective and be enforced by October 1 of the following 
fiscal year.

F. Transfer of Funds

    As explained in the interim final rule, section 164 provides that 
the Secretary must transfer a portion of a State's Federal-aid highway 
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.
    The interim rule indicated that, in accordance with the statute, 
the 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 drawn evenly from these three sources. The 
transferred funds may come from any one or a combination of the 
apportionments under sections 104(b)(1), (3) and (4), as long as the 
total amount meets the statutory requirement.
    One commenter noted that the interim rule did not specify which 
State agency has authority to decide from which category funds should 
be transferred. The agencies believe that, because the decision 
concerning which of the three highway apportionments should lose funds 
solely affects State Department of Transportation (DOT) programs, the 
State DOT should have authority to inform the FHWA of any changes in 
distribution. The agencies have added language to the final rule, in 
the section on Transfer of Funds, indicating that on October 1, the 
FHWA will make the transfers based on a proportionate amount, then the 
State's Department of Transportation will be given until October 30 to 
notify the FHWA if they would like to change the distribution among 
sections 104(b)(1), (3) and (4).
    The interim rule indicated that the funds transferred to section 
402 could 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. In addition, 
the interim final rule indicated that States may elect to use all or a 
portion of the transferred funds for hazard elimination activities 
under 23 U.S.C. 152.
    NAGHSR, Michigan, Delaware and NCSL noted that the interim final 
rule did not specify which State agency has the authority to determine 
how transferred funds should be used. NAGSHR stated that ``it is 
unclear whether these decisions are state department of transportation 
decisions, state highway safety office decisions, or both.'' Michigan 
suggested that ``it should be made clear that all affected state 
agencies are to participate, and that states' decisions may be guided 
by the traffic safety benefit returned by the investment.''
    The agencies have determined that all of the affected State 
agencies should participate in deciding how transferred funds should be 
directed. Accordingly, the agencies have added language to the section 
on Use of Transferred Funds

[[Page 59123]]

specifying that both the State DOT, which will ``lose'' the funds, and 
the State Highway Safety Office (SHSO), which will ``gain'' the funds 
must decide jointly.
    The State DOT and SHSO officials will provide written notification 
of their funding decisions to the agencies, within 60 days of the 
transfer, identifying the amounts of apportioned funds to be obligated 
to alcohol-impaired driving programs, hazard elimination programs, and 
related planning and administration costs allowable under section 402. 
This process will permit account entries to be made. Joint decision 
making by the DOT and SHSO is the same process required by NHTSA and 
the FHWA for other TEA 21 programs in which Congress authorized 
flexible highway safety/highway construction funding choices--the 
section 157 Seat Belt Use Incentive Grant Program, the section 163.08 
BAC Per Se Incentive Program and the section 154 Open Container 
Transfer Program.

IV. Regulatory Analyses and Notices

A. Executive Order 12778 (Civil Justice Reform)

    This 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 
pursue other administrative proceedings before they may file suit in 
court.

B. 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 Pub. Law 105-206, and 
thereby avoid the transfer of Federal-aid highway construction 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.

C. Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. Law 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 regulations, 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 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.

D. 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.

E. 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.

F. The Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (Pub. Law 104-4) requires 
agencies to prepare a written assessment of the costs, benefits and 
other effects 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. In the interim final rule, the agencies indicated that the 
section 164 program did not meet the definition of a Federal mandate, 
because the resulting annual expenditures were not expected to exceed 
$100 million and because the States were not required to enact and 
enforce a conforming repeat intoxicated driver law.
    NCSL asserted that the rule will result in an unfunded mandate. It 
stated that ``the total cost to the states to enforce these repeat 
offender laws will exceed one hundred million dollars in cost.'' NCSL 
noted that the UMRA requires agencies to prepare a written assessment 
of the anticipated costs and benefits of any unfunded Federal mandate 
and that NHTSA failed to do so. NCSL asserted also that NHTSA failed to 
consult with State officials to determine the financial and political 
ramifications of this regulatory proposal.
    The agencies have determined that the rule will not result in an 
unfunded mandate because the section 164 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. Moreover, the agencies do not believe that the resulting cost to 
States from implementing conforming laws will be over $100 million. 
Prior to the passage of TEA 21, States already had enacted and were 
enforcing repeat intoxicated driver laws. Some of these States have 
amended their laws to conform to the new section 164 requirements, but 
such changes will not result in expenditures of over $100 million. For 
States that have amended their repeat intoxicated driver laws, the cost 
to enact such amendments will be minimal. There may be some costs to 
provide training to law enforcement or other officials or to educate 
the public about these changes, but these costs are not likely to be 
significant.
    In the interim final rule, the agencies recommended that States 
incorporate into their enforcement efforts activities designed to 
inform law enforcement officers, prosecutors, members of the judiciary 
and the public about their repeat intoxicated driver laws. In addition, 
the agencies advised States to take steps to integrate their repeat 
intoxicated driver enforcement efforts into their enforcement of other 
impaired driving laws. If States take these steps, the cost to enforce 
such laws would likely be absorbed into the State's overall law 
enforcement budget because the States would not be required to conduct 
separate enforcement efforts to enforce their repeat intoxicated driver 
laws.
    Accordingly, the agencies have determined that it is not necessary 
to prepare a written assessment of the costs and benefits, or other 
effects of the rule.

G. Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and

[[Page 59124]]

criteria contained in Executive Order 13132, 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 consideration of the foregoing, the interim final rule published 
in the Federal Register of October 19, 1998, 63 FR 55796, is adopted as 
final, with the following changes:

PART 1275--REPEAT INTOXICATED DRIVER LAWS

    1. The authority citation for part 1275 continues to read as 
follows:

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

    2. Section 1275.3 is amended by revising paragraphs (c) and (k) to 
read as follows:


Sec. 1275.3  Definitions.

* * * * *
    (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, 
or an equivalent non-BAC intoxicated driving offense.
* * * * *
    (k) Repeat intoxicated driver means a person who has been convicted 
of driving while intoxicated or driving under the influence of alcohol 
more than once in any five-year period.
* * * * *

    3. In Sec. 1275.4, paragraph (b)(2) is redesignated as paragraph 
(b)(3) and a new paragraph (b)(2) is added to read as follows:


Sec. 1275.4  Compliance criteria.

* * * * *
    (b) * * *
    (2) A State may provide limited exceptions to the requirement to 
install an ignition interlock system on each of the offender's motor 
vehicles, contained in paragraph (a)(2)(iii) of this section, on an 
individual basis, to avoid undue financial hardship, provided the State 
law requires that the offender may not operate a motor vehicle without 
an ignition interlock system.
* * * * *

    4. Section 1275.5 is amended by revising paragraph (b) to read as 
follows:


Sec. 1275.5  Certification requirements.

* * * * *
    (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.
    (1) If the State's repeat intoxicated driver law is currently in 
effect and is being enforced, the certification shall be worded as 
follows:

    (Name of certifying official), (position title), of the (State 
or Commonwealth) of ______, do hereby certify that the (State or 
Commonwealth) of ______, has enacted and is enforcing a repeat 
intoxicated driver law that conforms to the requirements of 23 
U.S.C. 164 and 23 CFR 1275.4, (citations to pertinent State 
statutes, regulations, case law or other binding legal requirements, 
including definitions, as needed).

    (2) If the State's repeat intoxicated driver law is not currently 
in effect, but will become effective and be enforced by October 1 of 
the following fiscal year, the certification shall be worded as 
follows:

    (Name of certifying official), (position title), of the (State 
or Commonwealth) of ______, do hereby certify that the (State or 
Commonwealth) of ______, has enacted a repeat intoxicated driver law 
that conforms to the requirements of 23 U.S.C. 164 and 23 CFR 
1275.4, (citations to pertinent State statutes, regulations, case 
law or other binding legal requirements, including definitions, as 
needed), and will become effective and be enforced as of (effective 
date of the law).
* * * * *

    5. Section 1275.6 is amended by adding paragraph (c) to read as 
follows:


Sec. 1275.6  Transfer of funds.

* * * * *
    (c) On October 1, the transfers to section 402 apportionments will 
be made based on proportionate amounts from each of the apportionments 
under 23 U.S.C. 104(b)(1),(b)(3) and (b)(4). Then the States will be 
given until October 30 to notify FHWA, through the appropriate Division 
Administrator, if they would like to change the distribution among 23 
U.S.C. 104(b)(1),(b)(3) and (b)(4).

    6. Section 1275.7 is amended by redesignating paragraphs (c) 
through (f) as paragraphs (d) through (g), and by adding a new 
paragraph (c) to read as follows:


Sec. 1275.7  Use of transferred funds.

* * * * *
    (c) The Governor's Representative for Highway Safety and the 
Secretary of the State's Department of Transportation for each State 
shall jointly identify, in writing to the appropriate NHTSA 
Administrator and FHWA Division Administrator, how the funds will be 
programmed among alcohol-impaired driving programs, hazard elimination 
programs, and planning and administration costs, no later than 60 days 
after the funds are transferred.
* * * * *

    Issued on: September 28, 2000.
Kenneth R. Wykle,
Administrator, Federal Highway Administration.
Dr. Sue Bailey,
Administrator, National Highway Traffic Safety Administration.
[FR Doc. 00-25384 Filed 9-29-00; 3:34 pm]
BILLING CODE 4910-59-P