[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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