[Federal Register Volume 68, Number 25 (Thursday, February 6, 2003)]
[Proposed Rules]
[Pages 6091-6100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-2790]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 68, No. 25 / Thursday, February 6, 2003 / 
Proposed Rules  

[[Page 6091]]



DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

Federal Highway Administration

23 CFR Part 1225

[Docket No. NHTSA-2002-13680]
RIN 2127-AI44


Operation of Motor Vehicles by Intoxicated Persons

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

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

-----------------------------------------------------------------------

SUMMARY: This document proposes to implement a new program enacted by 
the Department of Transportation and Related Agencies Appropriations 
Act, 2001 (DOT Appropriations Act of FY 2001), which requires the 
withholding of Federal-aid highway funds, beginning in fiscal year (FY) 
2004, from any State that has not enacted and is not enforcing a law 
that provides that any person with a blood alcohol concentration (BAC) 
of 0.08 percent or greater while operating a motor vehicle in the State 
shall be deemed to have committed a per se offense of driving while 
intoxicated or an equivalent per se offense. This document solicits 
comments on a proposed regulation to clarify what States must do to 
avoid the withholding of funds.

DATES: Comments must be received on or before April 7, 2003.

ADDRESSES: Submit written comments to the Docket Management Facility, 
DOT, 400 Seventh Street, SW., Room PL-401, Washington, DC 20590.
    Alternatively, you may submit your comments electronically by 
logging onto the Docket Management System (DMS) Web site at http://dms.dot.gov/submit. Click on ``Help & Information'' or ``Help/Info'' to 
view instructions for filing your comments electronically. Regardless 
of how you submit your comments, you should mention the docket number 
of this proposed rule.

FOR FURTHER INFORMATION CONTACT: In NHTSA: Ms. Marlene Markison, Office 
of Injury Control Operations & Resources, NTI-200, telephone (202) 366-
2121, fax (202) 366-7394; Ms. Heidi Coleman, Office of Chief Counsel, 
NCC-113, telephone (202) 366-1834, fax (202) 366-3820; or Ms. Tyler 
Bolden, Office of Chief Counsel, NCC-113, telephone (202) 366-1834, fax 
(202) 366-3820.
    In FHWA: Mr. Randy Umbs, Office of Safety, HSA-1, telephone (202) 
366-2177, fax (202) 366-3222; or Mr. Raymond W. Cuprill, Office of 
Chief Counsel, HCC-30, telephone (202) 366-0791, fax (202) 366-7499.

SUPPLEMENTARY INFORMATION: The DOT Appropriations Act of FY 2001 was 
signed into law on October 23, 2000. See Public Law 106-346--Appendix, 
sec. 351, 114 Stat. 1356A-34, 35. Section 351 of Public Law 106-346--
Appendix (Section 351) provides that, beginning in FY 2004, the 
Secretary of Transportation shall withhold certain Federal-aid highway 
funds from any State that has not enacted and is not enforcing a 0.08 
BAC law as described in 23 U.S.C. 163(a) (Section 163). Section 163 
provides that 0.08 BAC laws must specify that any person with a BAC of 
0.08 percent or greater while operating a motor vehicle in the State 
shall be deemed to have committed a per se offense of driving while 
intoxicated or an equivalent per se offense.

Background

The Problem of Impaired Driving

    In the year 2000, the number of people who were killed in motor 
vehicle crashes reached 41,821. Alcohol use was linked to 16,653 of 
these crashes, an average of 1 alcohol-related fatality every 32 
minutes. Although only about 8 percent of all motor vehicle crashes 
involve the use of alcohol, 40 percent of fatal crashes involve alcohol 
use.
    Injuries caused by motor vehicle crashes are the leading cause of 
death for people aged 4 to 33. Each year, these injuries 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. Alcohol-
related crashes account for roughly 30 percent of these costs--more 
than $45 billion each year.
    While alcohol-related fatalities have dropped significantly, from 
22,084 in 1990 to 16,653 in 2000, a 25 percent decrease in ten years, 
alcohol involvement is still the single greatest factor in motor 
vehicle deaths and injuries. The 25 percent decrease in alcohol-related 
fatalities can be attributed to more effective laws, strong enforcement 
and highly visible public information and education. Four laws that 
have been proven effective in the fight against impaired driving are: 
illegal per se laws; administrative license revocation (ALR) laws; 
``zero tolerance'' laws and 0.08 BAC laws. Both individually and 
collectively, these laws have played a crucial role in reducing the 
number of alcohol-related fatalities in this country. Indeed, it has 
been estimated that, if every State adopted a 0.08 BAC law, 
approximately 590 lives could be saved each year.

Support for 0.08 BAC Laws

    As we stated in the final rule for the Section 163 Incentive Grant 
program (64 FR 35568, July 1, 1999), a number of studies sponsored by 
NHTSA support a legal limit of 0.08 BAC, copies of which have been 
placed in the docket. For example, the effect of California's 0.08 law 
was analyzed in a 1991 NHTSA study entitled ``The Effects Following the 
Implementation of an 0.08 BAC Limit and an Administrative Per Se law in 
California.'' The study found that 81 percent of the driving population 
knew that the BAC limit had become stricter (as the result of a 
successful public education effort). The State experienced a 12 percent 
reduction in alcohol-related fatalities, although some of the reduction 
may have resulted from a new ALR law that was enacted during the same 
year that the BAC standard was lowered. The State also experienced an 
increase in the number of impaired driving arrests.
    Another study, ``Lowering State Legal Blood Alcohol Limits to 
0.08%: The Effect on Fatal Motor Vehicle Crashes,'' reported in the 
September 1996 issue of the ``American Journal of Public Health,'' 
analyzed the effect of lowering BAC levels to 0.08 in multiple states. 
The study, conducted by Boston University's School of Public Health,

[[Page 6092]]

compared the first five States to lower their BAC limit to 0.08 
(California, Maine, Oregon, Utah and Vermont) with five nearby States 
that retained the 0.10 BAC limit. The results of this study suggested 
that 0.08 BAC laws, particularly in combination with ALR laws, reduced 
the proportion of fatal crashes involving drivers and fatally injured 
drivers at blood alcohol levels of 0.08 percent and higher by 16 
percent and those at a BAC of 0.15 percent and greater by 18 percent.
    The immediate significance of these findings is that, the 0.08 BAC 
laws, particularly in combination with ALR laws, not only reduced the 
overall incidence of alcohol fatalities, but they also reduced 
fatalities at the higher BAC levels. The effect on the number of 
extremely impaired drivers was even greater than the overall effect. 
The study concluded that if all States lowered their BAC limits to 
0.08, alcohol-related fatalities would decrease nationwide by 500-600 
per year, which would result in an economic cost savings of 
approximately $1.5 billion.
    More recently, additional studies have been conducted to determine 
the effectiveness of 0.08 BAC laws. For example, in August 1999, NHTSA 
sponsored a study conducted by the Pacific Institute for Research and 
Evaluation, entitled ``The Relationship of Alcohol Safety Laws to 
Drinking Drivers in Fatal Crashes,'' which analyzed the relationships 
between the passage of key alcohol safety laws and the number of 
drinking drivers in fatal crashes. Specifically, the study evaluated 
the extent to which the reduction in alcohol-related fatalities could 
be attributed to ALR laws, 0.10 BAC laws and/or 0.08 BAC laws. Study 
results indicated that all three laws were associated with significant 
reductions in fatal crashes involving drinking drivers. In particular, 
0.08 BAC laws were associated with 8 percent reductions in the 
involvement of both high BAC and lower BAC drivers in fatal crashes. 
The study concluded that if all 50 States had 0.08 BAC laws in 1997, 
590 lives could have been saved.
    Also, Illinois' 0.08 BAC law, which was enacted in July 1997, was 
analyzed in a NHTSA-sponsored study conducted by the Pacific Institute 
for Research and Evaluation in December 2000. This study, entitled 
``The Effectiveness of the Illinois .08 Law,'' found that after 
enactment of the 0.08 BAC law, the number of DUI arrests of offenders 
in the new 0.08 to 0.09 range increased statewide, while the average 
BAC of arrested drivers declined. In addition, the proportion of 
offenders with BACs higher than 0.15 decreased, and the proportion of 
offenders in the 0.10 to 0.14 range increased slightly. Moreover, the 
State experienced an overall reduction of 13.7 percent in the 
proportion of alcohol-related fatalities, whereas surrounding States 
without a 0.08 BAC law showed no similar decline. Illinois also 
experienced an increase, by almost 11 percent, in the number of total 
impaired driving arrests, and it was estimated that the 0.08 law may 
have saved 47 lives in 1998 alone. However, only 18 months of data were 
available for the report, so the above-mentioned reductions are limited 
somewhat by the relatively short period of post-0.08 law data available 
and the possible effects of other legislation implemented at the same 
time as the 0.08 law.
    An update to the Illinois study was published in December 2001. The 
update, entitled ``Evaluation of the Illinois .08 Law: An Update with 
the 1999 FARS Data,'' concluded that Illinois' 0.08 law reduced the 
percentage of drinking drivers involved in fatal crashes by 13.65%. In 
addition, it was estimated that during a two-year period (1998 and 
1999), the 0.08 law had saved approximately 105 lives.
    Another recent study sponsored by NHTSA, entitled ``Relative Risk 
of Fatal Crash Involvement by BAC, Age, and Gender,'' provides further 
support for a 0.08 BAC limit. The study reported that the relative risk 
of involvement in a fatal passenger vehicle crash increased with higher 
driver BAC levels in every age and sex group, among both fatally 
injured and surviving drivers. Even a BAC increase of 0.02 percentage 
points among 16-20 year old male drivers was estimated to more than 
double the relative risk of a fatal single-vehicle crash injury. In 
addition, at the midpoint of the 0.08 to 0.10 BAC range, the relative 
risk of a fatal-single vehicle crash injury varied between 11.4 percent 
for drivers 35 and older to 51.9 percent for male drivers aged 16-20. 
The study concluded that drivers at non-zero BACs somewhat lower than 
0.10 percent pose substantially elevated risks to themselves and to 
other road users.
    In addition, the results of a study, entitled ``A Review of the 
Literature on the Effects of Low Doses of Alcohol on Driving-Related 
Skills,'' were published by NHTSA in 2000. The study indicated that 
alcohol impairs some driving skills, beginning with any significant 
departure from zero BAC. Moreover, significant impairment was reported 
at 0.05 BAC, and by 0.08 BAC, more than 94 percent of the reviewed 
studies showed impairment in measurable skills. The study concluded 
that all drivers can be expected to experience impairment in some 
driving-related skills by 0.08 BAC or less.
    Also in 2000, NHTSA published a study conducted by the Southern 
California Research Institute, entitled ``Driver Characteristics and 
Impairment at Various BACs.'' The study reported that there is evidence 
of significant alcohol-related impairment throughout the range from 
0.02 to 0.10 BAC. In addition, the study found that the percentage of 
people exhibiting impairment and the magnitude of that impairment grows 
as BAC levels increase. The study concluded that a majority of the 
driving population is impaired in some important measures at BACs as 
low as 0.02 BAC.

TEA-21, Section 163 Incentive Grant Program

    On June 9, 1998, the Transportation Equity Act for the 21st Century 
(TEA-21) was signed into law. Section 1404 of the Act established a 
$500 million incentive grant program under 23 U.S.C. 163 to encourage 
States to adopt tough 0.08 BAC laws. Section 163 provides that the 
Secretary of Transportation shall make a grant to any State that has 
enacted and is enforcing a law that provides that any person with a BAC 
of 0.08 percent or greater while operating a motor vehicle in the State 
shall be deemed to have committed a per se offense of driving while 
intoxicated or an equivalent per se offense.
    On September 3, 1998, NHTSA and the FHWA (the agencies) published a 
joint interim rule, establishing the criteria that States must meet and 
the procedures they must follow to qualify for an incentive grant. See 
63 FR 46881. On July 1, 1999, the agencies published a final rule, 
implementing the Section 163 incentive grant program. See 64 FR 35568.

Effects of Section 163 Incentive Grant Program

    Before the Section 163 program was implemented, only 16 States had 
enacted laws that established 0.08 BAC as their legal per se limit. 
Fifteen of these States had laws already in effect, so they were 
eligible to receive Section 163 incentive grant funds in FY 1998. One 
State, Washington, enacted a 0.08 BAC law on March 30, 1998, but the 
law did not become effective until January 1, 1999. Thus, Washington 
was not eligible to receive Section 163 incentive grant funds until FY 
1999. Between June 1998 and October 2000, only two additional States 
(Washington and Texas) and the District of Columbia enacted and began 
enforcing 0.08 BAC laws that met all of the Section 163 criteria. 
Although both

[[Page 6093]]

Kentucky and the Commonwealth of Puerto Rico enacted 0.08 BAC laws in 
2000, these laws did not become effective until October 1, 2000 and 
January 10, 2001 respectively. Thus, Kentucky and Puerto Rico were not 
eligible for Section 163 incentive grant funds until FY 2001. Rhode 
Island also adopted a 0.08 BAC law in 2000, but its 0.08 BAC law does 
not conform to all of the requirements of Section 163 and Rhode Island 
is not eligible to receive an incentive grant. See Table 1.

DOT Appropriations Act for FY 2001--Sanction Program

    In an effort to further reduce drunk driving injuries and 
fatalities, Congress created a new 0.08 BAC program in the DOT 
Appropriations Act of FY 2001. See Public Law 106-346--Appendix, sec. 
351, 114 Stat. 1356A-34, 35. Section 351 of Public Law 106-346--
Appendix (Section 351) provides for the withholding of Federal-aid 
highway funds from any State that has not enacted and is not enforcing 
a 0.08 BAC law by the beginning of FY 2004. This legislation did not 
alter the incentive grant program, which was established in TEA-21 and 
will continue through FY 2003.
    The DOT Appropriations Act of FY 2001 was signed into law on 
October 23, 2000. Since that date, fifteen additional States (Alaska, 
Arizona, Arkansas, Connecticut, Georgia, Indiana, Louisiana, Maryland, 
Mississippi, Missouri, Nebraska, Oklahoma, South Dakota, Tennessee and 
Wyoming) have enacted conforming 0.08 BAC laws. By October 2002, 
thirty-three States, the District of Columbia and the Commonwealth of 
Puerto Rico had established 0.08 BAC laws that met all of the 
requirements of Section 163. See Table 1.
    Although, Louisiana enacted a 0.08 BAC law in June 2001, this 0.08 
BAC law will not become effective until September 30, 2003. Thus, 
Louisiana will not be eligible to receive an incentive grant under the 
Section 163 program until FY 2003, but it will avoid the withholding of 
funds in FY 2004. Similarly, Tennessee enacted a 0.08 BAC law in June 
2002, however, this law will not become effective until July 1, 2003. 
Thus, Tennessee will not be eligible to receive an incentive grant 
under the Section 163 program until FY 2003, but it will avoid the 
withholding of funds in FY 2004.

 Table 1.--States With 0.08 BAC Laws That Meet Section 163 Criteria (as
                            of October 2002)
------------------------------------------------------------------------
                                                    Enactment  Effective
                       State                           Date       Date
------------------------------------------------------------------------
Alabama...........................................   07/31/95   10/01/95
Alaska............................................   07/03/01   09/01/01
Arizona...........................................   04/11/01   08/31/01
Arkansas..........................................   03/06/01   08/13/01
California........................................       1989   01/01/90
Connecticut.......................................   07/01/02   07/01/02
District of Columbia..............................   12/01/98   04/13/99
Florida...........................................   04/27/93   01/01/94
Georgia...........................................   04/16/01   07/01/01
Hawaii............................................   06/30/95   06/30/95
Idaho.............................................   03/17/97   07/01/97
Illinois..........................................   07/02/97   07/02/97
Indiana...........................................   05/09/01   07/01/01
Kansas............................................   04/22/93   07/01/93
Kentucky..........................................   04/21/00   10/01/00
Louisiana.........................................   06/26/01   09/30/03
Maine.............................................   04/28/88   08/04/88
Maryland..........................................   04/10/01   09/30/01
Mississippi.......................................   03/11/02   07/01/02
Missouri..........................................   06/12/01   09/29/01
Nebraska..........................................   03/01/01   09/01/01
New Hampshire.....................................   04/15/93   01/01/94
New Mexico........................................   03/19/93   01/01/94
North Carolina....................................   07/05/93   10/01/93
Oklahoma..........................................   06/08/01   07/01/01
Oregon............................................   08/04/83   10/15/83
Puerto Rico.......................................   01/10/00   01/10/01
South Dakota......................................   02/27/02   07/01/02
Tennessee.........................................   06/27/02   07/01/03
Texas.............................................   05/28/99   09/01/99
Utah..............................................   03/19/83   08/01/83
Vermont...........................................   06/06/91   07/01/91
Virginia..........................................   04/06/94   07/01/94
Washington........................................   03/30/98   01/01/99
Wyoming...........................................   03/11/02  07/01/02
Total: 33 States, plus the District of Columbia and Puerto Rico
------------------------------------------------------------------------

Adoption of 0.08 BAC Law

    Section 351 provides that the Secretary must withhold from 
apportionment a portion of Federal-aid highway funds from any State 
that does not meet the Section 163 requirements. To avoid such 
withholding, a State must enact and enforce a law that provides that 
any person with a BAC of 0.08 percent or greater while operating a 
motor vehicle in the State shall be deemed to have committed a per se 
offense of driving while intoxicated or an equivalent per se offense.
    Any State that does not enact and enforce a conforming 0.08 BAC law 
will be subject to the withholding of a portion of its Federal-aid 
highway funds. In accordance with the statute, if any State has not 
enacted and is not enforcing a conforming 0.08 BAC law by October 1, 
2003, two percent of its FY 2004 Federal-aid highway apportionment 
under 23 U.S.C. 104(b)(1), 104(b)(3) and 104(b)(4) shall be withheld on 
that date. These sections relate to the apportionments for the National 
Highway System, the Surface Transportation Program and the Interstate 
System (including resurfacing, restoring, rehabilitating and 
reconstructing the interstate system). The amount withheld would 
increase by two percent each year, until it reaches eight percent in FY 
2007 and thereafter.

Compliance Criteria

    To avoid the withholding from apportionment of Federal-aid highway 
funds, a State must enact and enforce a 0.08 BAC law that meets the 
criteria defined in the implementing regulations for the Section 163 
incentive grant program. See 64 FR 35568. To conform to the 
requirements of Section 163, a law must contain the following elements:

1. Any Person

    A State must enact and enforce a law that establishes a BAC limit 
of 0.08 or greater that applies to all persons. The law can provide for 
no exceptions.

2. Blood Alcohol Concentration (BAC) of 0.08 Percent

    A State must set a level of no more than 0.08 percent as the legal 
limit for blood alcohol concentration, thereby making it an offense for 
any person to have a BAC of 0.08 or greater while operating a motor 
vehicle.

3. Per Se Law

    A State must consider persons who have a BAC of 0.08 percent or 
greater while operating a motor vehicle in the State to have committed 
a per se offense of driving while intoxicated. In other words, States 
must establish a 0.08 ``per se'' law, that makes operating a motor 
vehicle with a BAC of 0.08 percent or above, in and of itself, an 
offense.

4. Primary Enforcement

    A State must enact and enforce a 0.08 BAC law that provides for 
primary enforcement. Under a primary enforcement law, law enforcement 
officials have the authority to enforce the law without, for example, 
the need to show that they had probable cause or had cited the offender 
for a violation of another offense. Any State with a law that provides 
for secondary enforcement of its 0.08 BAC provision will not qualify 
for funds under this program.

5. Both Criminal and ALR Laws

    A State must establish a 0.08 BAC per se level under its criminal 
code. In addition, if the State has an administrative license 
revocation or suspension (ALR) law, the State must

[[Page 6094]]

establish an illegal 0.08 BAC per se level under its ALR law, as well.

6. Standard Driving While Intoxicated Offense

    The State's 0.08 BAC per se law must be deemed to be or be 
equivalent to the State's standard driving while intoxicated offense. 
That is the State's non-BAC per se driving while intoxicated offense in 
the State.
    In States with multiple drinking and driving provisions, the final 
rule for the Section 163 incentive grant program stated that the 
agencies will consider a number of factors to determine whether the 
State's 0.08 BAC per se law has been deemed to be or is equivalent to 
the standard driving while intoxicated offense in the State. These 
factors include the treatment of these offenses, their relation to 
other offenses in the State and the sanctions and other consequences 
that result when persons violate these offenses. See 64 FR 35568.
    A more detailed discussion of the six elements described above is 
contained in the interim final rule establishing the criteria for the 
Section 163 incentive grant program. See 63 FR at 46883-84.
    During the agency's administration of the Section 163 incentive 
grant program, we have considered a number of proposed laws to 
determine whether a State's proposed 0.08 BAC offense was equivalent to 
the State's standard driving while intoxicated offense. In some 
reviews, these proposed laws were determined to be equivalent and in 
others they were determined not to be equivalent. Two examples are 
described below.
A. Rhode Island
    Following our review of Rhode Island's new 0.08 BAC law (enacted in 
2000), we concluded that the law did not make driving while intoxicated 
with a BAC of 0.08 the standard driving while intoxicated offense or 
equivalent to that offense in the State. Moreover, we determined that 
the Rhode Island law did not apply the 0.08 BAC legal limit to the 
State's criminal code.
    Previously, Rhode Island's law provided that a person convicted of 
driving while intoxicated (with a BAC of 0.10 or more) had committed a 
misdemeanor and was subject to a fine of $100-$300, 10 to 60 hours of 
public community restitution and/or imprisonment for up to one year. 
Such person was subject also to a driver's license suspension of three 
to six months.
    Rhode Island's new law creates a three-tiered penalty scheme that 
distinguishes between offenders with BACs of: (1) 0.08-0.09; (2) 0.10-
0.14 and (3) 0.15 and above. Under the new law, a person convicted of 
driving while intoxicated with a BAC of 0.08 or 0.09 may receive the 
following sanctions: a fine of $100-$250; 10-60 hours of public 
community restitution; a special driving course; and suspension of 
their driver's license up to 45 days. Moreover, the new law treats a 
first time violation to the 0.08 offense only as a civil violation.
    However, under Rhode Island's new law, a person convicted of 
driving while intoxicated with a BAC of 0.10-0.14 is subject to a fine 
of $100-$300, 10 to 60 hours of public community restitution and/or 
imprisonment for up to one year, and suspension of their driver's 
license for 3 to 6 months. Likewise, persons convicted of driving while 
intoxicated with a BAC level of 0.15 or more, would receive increased 
penalties of a fine of $500, 20-60 hours of public community 
restitution, imprisonment up to one year, and suspension of their 
driver's license for 3-6 months. Thus, the agency concluded that Rhode 
Island's new law subjected 0.08 offenders to less severe sanctions than 
those imposed on 0.10 offenders; and contained sanctions that were 
permissive, and not mandatory, as required by Section 163 and the 
agency's implementing regulations. In addition, violations to the 0.08 
offense were only civil offenses and violations to the 0.10 offense 
were criminal. Accordingly, the agency determined that Rhode Island's 
law did not make driving while intoxicated with a BAC of 0.08 the 
standard driving while intoxicated offense or an equivalent offense.
B. Alaska
    Following our review of Alaska's new law (enacted in 2001), the 
agency concluded that the 0.08 law was equivalent to the standard 
driving while intoxicated offense in the State.
    Previously, Alaska's law provided that a person committed the crime 
of driving while intoxicated if the person operated or drove a motor 
vehicle while they were under the influence of intoxicating liquor or 
if a chemical test revealed a BAC of 0.10 or more (within four hours 
after the alleged offense). This offense was a Class A misdemeanor and 
was subject to at least 72 hours of imprisonment and a fine of not less 
than $250.
    Under Alaska's new law, people commit the crime of driving while 
intoxicated if they operate or drive a motor vehicle while they are 
under the influence of intoxicating liquor or if a chemical test 
reveals a BAC of 0.08 or more (within four hours after the alleged 
offense). This offense is a Class A misdemeanor and is subject to not 
less than 72 hours of imprisonment and a fine of not less than $250.
    In summary, Alaska's new 0.08 law retained the same penalties as 
those previously imposed on the State's 0.10 law. Indeed, the new law 
merely changed the State's legal limit from 0.10 to 0.08 BAC. 
Accordingly, the agency concluded that Alaska's new 0.08 BAC offense 
was equivalent to the standard driving while intoxicated offense in the 
State.

Demonstrating Compliance

A. Sanction Program
    Section 351 provides that funds will be withheld from apportionment 
from noncomplying States beginning in FY 2004. To avoid the 
withholding, each State would be required by this proposed regulation 
to submit a certification. Under the agencies' proposal, States would 
be required to submit their certifications on or before September 30, 
2003, to avoid the withholding from apportionment of FY 2004 funds on 
October 1, 2003. The agencies propose to permit (and strongly 
encourage) States to submit certifications in advance.
    States that are found in noncompliance with these requirements in 
any fiscal year would be required to submit a certification to avoid 
the withholding of funds from apportionment in the following fiscal 
year. To avoid the withholding in that fiscal year, these States would 
be required to submit a certification demonstrating compliance before 
the last day (September 30) of the previous fiscal year.
    Certifications submitted under this part would provide agencies 
with the basis for finding States in compliance with the Section 351 
requirements. The agencies are proposing that the certification must 
consist of: (1) A statement from an appropriate State official that the 
State has enacted and is enforcing a 0.08 BAC per se law that conforms 
to 23 U.S.C. Sec.  163 and 23 CFR Part 1225; and (2) citations to the 
State's conforming 0.08 BAC per se law, including all applicable 
definitions and provisions of the State's criminal code and, if the 
State has an ALR law, all applicable provisions of that law, as well.
    Once a State is determined by the agencies to be in compliance with 
the requirements of Section 163, the agencies propose that the State 
would not be required to submit certifications in subsequent fiscal 
years, unless the State's law had changed. This proposal specifies that 
it would be the

[[Page 6095]]

responsibility of the States to inform the agencies of any such change 
in a subsequent fiscal year, by submitting an amendment or supplement 
to its certification.
B. Incentive Grant Program
    In this notice, the agencies propose to simplify the certification 
process for the incentive grant program. States that are receiving 
their first grant under the incentive grant program, must submit a 
certification consisting of: (1) A statement from an appropriate State 
official that the State has enacted and is enforcing a 0.08 BAC per se 
law that conforms to 23 U.S.C. 163 and 23 CFR Part 1225; (2) a 
statement that the funds received by the State under this program will 
be used for projects eligible for assistance under title 23 of the 
United States Code, which include highway construction as well as 
highway safety projects and programs; and (3) citations to the State's 
conforming 0.08 BAC per se law, including all applicable definitions 
and provisions of the State's criminal code and, if the State has an 
ALR law, all applicable provisions of that law, as well.
    To receive subsequent-year grants under this program, a State must 
submit a certification consisting of: (1) A statement from an 
appropriate State official, stating either that the State either has 
amended or has not changed its 0.08 BAC per se law; (2) a statement 
that the State is enforcing the law; and (3) a statement that the funds 
received by the State under this program will be used for projects 
eligible for assistance under title 23 of the United States Code, which 
include highway construction as well as highway safety projects and 
programs. Citations to the States' laws will not be required for 
subsequent-year certifications.
    For all States in compliance with the requirements of Section 163 
in FY 2003, certifications submitted for the incentive grant program 
will apply toward avoiding the withholding of apportionment funds in FY 
2004. No further certification is necessary from these States. To 
qualify for an incentive grant in any fiscal year, the regulations 
would continue to provide that the certifications must be received by 
July 15.

Certification Requirements

    As stated previously, under the agencies' proposal, States would be 
required to submit a conforming certification on or before July 15, to 
receive an incentive grant in a fiscal year; and on or before September 
30, to avoid the withholding of funds in a fiscal year.

Advance Notice of Apportionments Under the Sanction Program

    To avoid a sanction beginning in FY 2004, the agencies propose that 
States would be required to enact and make effective a conforming 0.08 
BAC law and submit a conforming certification on or before the last day 
(September 30) of the previous fiscal year.
    However, NHTSA and the FHWA expect that States will want to know 
well in advance of the September 30 deadline whether their laws meet 
the requirements of Section 163 and its implementing regulations. 
Accordingly, the agencies encourage States to submit their laws for 
review as quickly as they can. More importantly, the agencies encourage 
States that are considering proposed 0.08 BAC legislation to request 
reviews from the agencies while the legislation is still pending. The 
agencies will review the legislation and determine whether it would 
conform to the Federal requirements if enacted without change, thus 
avoiding a situation whereby a State unintentionally enacts a non-
conforming 0.08 BAC law and then is unable to meet the Section 163 
requirements. Requests should be submitted through NHTSA's Regional 
Administrators, who will refer the requests to appropriate NHTSA and 
FHWA offices for review.
    To ensure that the States are advised of their status under the 
Section 163 program well in advance of any withholding, the agencies 
propose to notify States of their compliance or non-compliance with the 
requirements of Section 163 through FHWA's normal certification of 
apportionments process. Under this process, States are advised in 
advance of the amount of funds expected to be withheld from their 
apportionments in the upcoming fiscal year. The advance notice normally 
is issued not later than ninety days prior to the date on which the 
funds are to be apportioned. (Since funds normally are apportioned on 
October 1 of each year, the advance notice ordinarily is issued on or 
about July 1 of each year.)
    Under the agencies' proposal, if the agencies have not received a 
law and certification from a State and determined that they conform 
with the requirements of Section 163 and its implementing regulations 
before June 15, the agencies would make an initial determination that 
the State is in non-compliance with Section 163, and the State would be 
advised in FHWA's advance notice of apportionments of the amount of 
funds expected to be withheld from the State in the following fiscal 
year.
    Accordingly, if States wish to avoid receiving an advance notice of 
apportionments, based on an initial determination that the State is in 
non-compliance with Section 163, the State should submit a conforming 
law and certification to the agencies well in advance of June 30.
    Each State that receives an advance notice of non-compliance with 
the requirements of Section 163 will have an opportunity to rebut the 
agencies' initial determination. In addition, these States will be 
notified of the agencies' final determination of compliance or non-
compliance as part of the final notice of apportionments (which 
normally is issued on October 1 of each year).

Period of Availability for Funds

    Section 351 provides an incremental approach to the withholding of 
funds from apportionment for noncompliance. If a State is found to be 
in noncompliance on October 1, 2003, the State would be subject to a 
two percent withholding of its FY 2004 apportionment on that date. If a 
State is found to be in noncompliance on October 1 of any subsequent 
fiscal year, the withholding percentage would increase by two percent 
each year, until it reaches eight percent in FY 2007 and thereafter. 
See Table 2.
    In addition, if a State comes into compliance with the requirements 
of Section 163 on or before September 30, 2007, the funds withheld from 
apportionment would be restored to the State. Specifically, Section 351 
provides that, ``If within four years from the date that the 
apportionment for any State is reduced in accordance with this section 
the Secretary determines that such State has enacted and is enforcing a 
provision described in section 163(a) of chapter 1 of title 23, United 
States Code, the apportionment of such State shall be increased by an 
amount equal to such reduction.''
    However, if a State is not in compliance with the requirements of 
Section 163 on October 1, 2007, any funds withheld from apportionment 
to the State will begin to lapse and will no longer be available for 
apportionment. Section 351 provides that, ``If at the end of such four-
year period, any State has not enacted and is not enforcing a provision 
described in section 163(a) of title 23, United States Code, any 
amounts so withheld shall lapse.''

[[Page 6096]]



   Table 2.--Effects of the 0.08 BAC Sanction Program on Non-Complying
                                 States
------------------------------------------------------------------------
                               Withhold
         Fiscal year          (percent)               Lapse
------------------------------------------------------------------------
2004........................         2   ...............................
2005........................         4   ...............................
2006........................         6   ...............................
2007........................         8   ...............................
2008........................         8   2% withheld in FY04.
2009........................         8   4% withheld in FY05.
2010........................         8   6% withheld in FY06.
2011........................         8   8% withheld in FY07.
2012........................         8   8% withheld in FY08.
------------------------------------------------------------------------

Comments

    Interested persons are invited to comment on this notice of 
proposed rulemaking. It is requested, but not required, that two copies 
be submitted. All comments must be limited to 15 pages in length. 
Necessary attachments may be appended to those submissions without 
regard to the 15 page limit. See 49 CFR 553.21. This limitation is 
intended to encourage commenters to detail their primary arguments in a 
concise fashion.
    You may submit your comments by one of the following methods:
    (1) By mail to: Docket Management Facility, Docket No. NHTSA-01-
XXXX, DOT, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590;
    (2) By hand delivery to: Room PL-401 on the Plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday;
    (3) By fax to the Docket Management Facility at (202) 493-2251; or
    (4) By electronic submission: log onto the DMS website at http://dms.dot.gov and click on ``Help and Information'' or ``Help/Info'' to 
obtain instructions.
    All comments received before the close of business on the comment 
closing date will be considered and will be available for examination 
in the docket at the above address before and after that date. To the 
extent possible, comments filed after the closing date will also be 
considered. However, the rulemaking action may proceed at any time 
after that date. The agencies will continue to file relevant material 
in the docket as it becomes available after the closing date, and it is 
recommended that interested persons continue to examine the docket for 
new material.
    You may review submitted comments in person at the Docket 
Management Facility located at Room PL-401 on the Plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday. You may also review submitted 
comments on the Internet by taking the following steps:

    (1) Go to the DMS web page at http://dms.dot.gov/search/.
    (2) On that page, click on ``search''.
    (3) On the next page (http://dms.dot.gov/search/) type in the 
four digit docket number shown at the beginning of this notice. 
Click on ``search''.
    (4) On the next page, which contains docket summary information 
for the docket you selected, click on the desired comments. You may 
also download the comments. Although the comments are imaged 
documents, instead of word processing documents, the ``pdf'' 
versions of the documents are word searchable.

    Those persons who wish to be notified upon receipt of their 
comments in the docket should enclose, in the envelope with their 
comments, a self-addressed stamped postcard. Upon receiving the 
comments, the docket supervisor will return the postcard by mail.

Regulatory Analyses and Notices

Executive Order 12988 (Civil Justice Reform)

    This proposed rule would not have any preemptive or retroactive 
effect. This action meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

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

    Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 
51735, October 4, 1993), provides for making determinations whether a 
regulatory action is ``significant'' and therefore subject to Office of 
Management and Budget (OMB) review and to the requirements of the 
Executive Order.
    The Order defines a ``significant regulatory action'' as one that 
is likely to result in a rule that may:

    (1) Have an annual effect on the economy of $100 million or more 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with 
an action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations or 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.

    The agency has considered the impact of this rulemaking action 
under Executive Order 12866 and the Department of Transportation's 
regulatory policies and procedures and determined that it is 
``significant'' because it involves the withholding of Federal-aid 
highway funds to any State that has not enacted and is not enforcing a 
0.08 BAC law by FY 2004, a matter of substantial interest to the public 
and to Congress. Further, there is a possibility that the State 
withholdings resulting from this proposed rule could total from $100 
million to $400 million. See NHTSA, Preliminary Regulatory Evaluation, 
0.08 Sanction Program 20. Thus, this rulemaking could be economically 
significant under Executive Order 12866, i.e., have an annual effect on 
the economy of $100 million or more. Accordingly, a preliminary 
regulatory evaluation has been prepared to review costs and benefits 
imposed on States to enact a 0.08 BAC law. The preliminary regulatory 
evaluation has been placed in the docket for this proposed rule.
    The preamble to this rulemaking indicates that the adoption of 0.08 
BAC laws could save 590 lives each year. This ``benefit'' is based upon 
a research study published in 1999 that measured the effects of 0.08 
BAC laws by reviewing the fatality numbers in States with conforming 
0.08 BAC laws at the time this study was conducted (15 States). This 
study concluded that 0.08 BAC laws might reduce alcohol-related 
fatalities by approximately 8 percent.
    The preliminary regulatory evaluation uses a slightly different 
measure to determine the ``benefit'' of adoption of 0.08 BAC laws. As 
explained in more detail below, the ``benefit'' was determined in the 
preliminary regulatory evaluation by measuring the fatality numbers for 
the States that had not enacted conforming 0.08 BAC laws before the 
creation of the 0.08 sanction program in October 2000 (32 States), 
using an estimate that 0.08 BAC laws might reduce alcohol-related 
fatalities by 7 percent. This estimate was derived from a recent Center 
for Disease Control (CDC)-sponsored independent task force study, which 
calculated 7 percent as the median effectiveness percentage for 0.08 
BAC laws. Using these measures, the preliminary regulatory evaluation 
concludes that 616 lives (are being/could be) saved each year by the 
adoption of 0.08 BAC laws. See Preliminary Regulatory Evaluation, 
supra, at 1.
A. Benefits
    The preliminary regulatory evaluation concludes that changing the 
level of

[[Page 6097]]

alcohol from 0.10 to 0.08 in State per se laws will result in fewer 
alcohol-related traffic crashes and fatalities. Specifically, the 
preliminary regulatory evaluation cites a review performed by a CDC-
sponsored independent task force, to support the conclusion that 0.08 
BAC laws may reduce alcohol-related fatalities by 7 percent each year. 
This 7 percent reduction could annually prevent 616 fatalities, over 
13,800 non-fatal injuries, and over 50,000 damaged vehicles involved in 
over 30,000 property-damage only (PDO) crashes. See Preliminary 
Regulatory Evaluation, supra, at 23.
B. Costs
    The regulatory evaluation concludes that the impact of 0.08 BAC 
laws will depend on drinking drivers' perceptions that they are more 
likely to be caught over the limit, and thereby reduce the amount they 
drink before driving. To successfully accomplish this goal, States will 
develop public information campaigns, both at the time of legislative 
debate to inform the public of the need for the law and later during 
enforcement and prosecution of the law to help achieve compliance. 
Typically, States will use unpaid media exposure, such as news stories 
and public service messages, however, some States will implement public 
information campaigns that involve paying for airtime on radio and 
television and/or advertising space in print media and billboards. Both 
approaches would require the time of State and local workers, 
especially in the State Highway Safety Office, to develop and manage 
these public information programs.
    To mitigate costs incurred in educating the public, States may use 
Federal highway safety grant funds to pay for the development of public 
information programs and for airtime and print advertising space. In 
addition, NHTSA provides sample press release kits to aid communities 
in publicizing new programs through newspapers, TV and radio.
    Aside from advertising costs, the preliminary regulatory evaluation 
expects that the costs for implementing this proposed rule will be 
minimal and consist of changes that States make as a matter of course 
when amending a State law (e.g., updating driver handbooks and forms).
C. Conclusion
    The preliminary regulatory evaluation notes that it is difficult to 
measure the effects of 0.08 BAC laws. This difficulty arises because 
impaired-driving laws are often passed concurrently or within the same 
year. In addition, the degree of the law's enforcement, and especially 
the publicity surrounding that enforcement, can vary significantly and 
such variability can influence the law's effectiveness. Nonetheless, 
the preliminary regulatory evaluation concludes that 616 lives (are 
being/could be) saved each year by the adoption of 0.08 BAC laws.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612) 
requires an agency to review regulations to assess their impact on 
small entities unless the agency determines that a rule is not expected 
to have a significant impact on a substantial number of small entities. 
We hereby certify that the rule proposed in this notice of proposed 
rulemaking will not have a significant economic impact on a substantial 
number of small entities. As a sanction program, this rule will have 
different consequences depending on whether the States enact and 
enforce a conforming 0.08 BAC law or whether they choose to accept the 
sanction for not enacting and enforcing a conforming law.
    In States that have passed 0.08 BAC laws, consumption of beer has 
dropped 3.5 percent on average. By contrast, consumption of wine and 
spirits do not correlate with the number of drinking drivers in fatal 
crashes. Thus, if a State passes a 0.08 law, all businesses, large and 
small, that sell and serve beer are likely to experience a small 
reduction in sales. However, most businesses sell other products, such 
as food or other beverages. Therefore, the overall impact on those 
businesses would be significantly less than 3.5 percent. For some 
businesses, such as beer distributors (where a small business is 
defined as 100 employees or less), the decline may approach the 3.5 
percent range. See Preliminary Regulatory Evaluation, supra, at 21.
    States that do not enact and enforce conforming 0.08 BAC laws will 
lose Federal-aid highway funds. This loss may impact highway 
construction firms, where a small business is defined as $28.5 million 
in annual gross income. The precise number of small businesses that may 
be affected cannot be determined, since it is assumed that any impact 
is just as likely to impact businesses of any size. In addition, the 
penalty affects only Federal highway funds, which make up, on average 
in the 17 States affected, only 16 percent of all State highway 
expenditures. Accordingly, even if the sanction was imposed at the 
highest rate of 8 percent, the maximum reductions in highway 
expenditures in the relevant States would be within a range of only 
0.77 percent (in Massachusetts) to 3.62 percent (in Montana). Further, 
most of these businesses do not rely totally on highway construction 
contracts for their revenue. Based on these considerations, the 
preliminary regulatory evaluation finds that this action would not 
result in a significant impact on the small businesses involved. See 
Preliminary Regulatory Evaluation, supra, at 21.

Paperwork Reduction Act

    This action does not contain a collection of information 
requirement for purposes of the Paperwork Reduction Act of 1995, 44 
U.S.C. Chapter 35, as implemented by the Office of Management and 
Budget (OMB) in 5 CFR Part 1320.

National Environmental Policy Act

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

The Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531) requires 
agencies to prepare a written assessment of the costs, benefits and 
other effects of rules that include a Federal mandate likely to result 
in the expenditure by State, local or tribal governments, in the 
aggregate, or by the private sector, of $100 million or more (adjusted 
annually for inflation) in any one year. This proposed rule does not 
require an assessment under this law. The costs to States to enact and 
make effective conforming 0.08 BAC laws will not result in annual 
expenditures that exceed the $100 million threshold. Moreover, States 
that enact 0.08 BAC laws will avoid the loss of millions of dollars in 
Federal-aid highway funds.

Executive Order 13132 (Federalism)

    Executive Order 13132 requires the agencies to develop an 
accountable process to ensure ``meaningful and timely input by State 
and local officials in the development of regulatory policies that have 
Federalism implications.'' ``Policies that have Federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.''
    Under Executive Order 13132, the agency may not issue a regulation 
with

[[Page 6098]]

Federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, the agency consults with 
State and local governments, or the agency consults with State and 
local officials early in the process of developing the proposed 
regulation. The agencies also may not issue a regulation with 
Federalism implications that preempts State law unless the agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    We have analyzed this proposed rule in accordance with the 
principles and criteria set forth in Executive Order 13132 and have 
determined that this proposal may have Federal implications. We intend 
to consult with State and local officials about this proposal, and we 
will include a Federalism summary impact statement in the preamble to 
the final rule. NHTSA seeks comments on the federalism impact of this 
proposal.

Executive Order 13175 (Consultation and Coordination with Indian Tribal 
Governments)

    The agencies have analyzed this proposed rule under Executive Order 
13175, and believe that the proposed action would not have a 
substantial direct effect on one or more Indian tribes; would not 
impose substantial direct compliance costs on Indian tribal 
governments; and would not preempt tribal law. Therefore, a tribal 
summary impact statement is not required.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory section listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be used to cross-reference this section with the 
Unified Agenda.

List of Subjects in 23 CFR Part 1225

    Alcohol and alcoholic beverages, Transportation, Highway safety.
    In consideration of the foregoing, the agencies propose to revise 
23 CFR part 1225 as follows:

PART 1225--OPERATION OF MOTOR VEHICLES BY INTOXICATED PERSONS

Sec.
1225.1 Scope.
1225.2 Purpose.
1225.3 Definitions
1225.4 Adoption of 0.08 BAC per se law.
1225.5 General requirements for incentive grant program.
1225.6 Award procedures for incentive grant program.
1225.7 Certification requirements for sanction program.
1225.8 Funds withheld from apportionment.
1225.9 Period of availability of withheld funds.
1225.10 Apportionment of withheld funds after compliance.
1225.11 Notification of compliance.
1225.12 Procedures affecting states in noncompliance.
    Appendix A To Part 1225--Effects of the 0.08 BAC Sanction 
Program on Non-Complying States

    Authority: 23 U.S.C. 163; sec. 351, Pub. L 106-346--Appendix, 
114 Stat. 1356A-34, 35; delegation of authority at 49 CFR 1.48 and 
1.50.


Sec.  1225.1  Scope.

    This part prescribes the requirements necessary to implement 23 
U.S.C. 163, which encourages States to enact and enforce 0.08 BAC per 
se laws through the use of incentive grants and section 351 of Public 
Law 106-346--Appendix, which requires the withholding of Federal-aid 
highway funds from any State that has not enacted and is not enforcing 
a 0.08 BAC per se law as described in 23 U.S.C. 163.


Sec.  1225.2  Purpose.

    The purpose of this part is to specify the steps that States must 
take to qualify for incentive grant funds in accordance with 23 U.S.C. 
163; and the steps that States must take to avoid the withholding of 
funds as required by Section 351 of Public Law 106-346--Appendix.


Sec.  1225.3  Definitions.

    As used in this part:
    (a) Alcohol concentration means either grams of alcohol per 100 
milliliters of blood or grams of alcohol per 210 liters of breath.
    (b) ALR means either administrative license revocation or 
administrative license suspension.
    (c) BAC means either blood or breath alcohol concentration.
    (d) BAC per se law means a law that makes it an offense, in and of 
itself, to operate a motor vehicle with an alcohol concentration at or 
above a specified level.
    (e) Citations to State law means citations to all sections of the 
State's law relied on to demonstrate compliance with 23 U.S.C. 163, 
including all applicable definitions and provisions of the State's 
criminal code and, if the State has an ALR law, all applicable 
provisions of the State's ALR law.
    (f) Has enacted and is enforcing means the State's law is in effect 
and the State has begun to implement the law.
    (g) Operating a motor vehicle means driving or being in actual 
physical control of a motor vehicle.
    (h) Standard driving while intoxicated offense means the non-BAC 
per se driving while intoxicated offense in the State.
    (i) State means any one of the fifty States, the District of 
Columbia, or Puerto Rico.


Sec.  1225.4  Adoption of 0.08 BAC per se law.

    In order to avoid the withholding of funds as specified in Sec.  
1225.8 of this part, and to qualify for an incentive grant under Sec.  
1225.5 of this part, a State must demonstrate that it has enacted and 
is enforcing a law that provides that any person with a blood alcohol 
concentration (BAC) of 0.08 percent or greater while operating a motor 
vehicle in the State shall be deemed to have committed a per se offense 
of driving while intoxicated or an equivalent per se offense. The law 
must:
    (a) Apply to all persons;
    (b) Set a BAC of not higher than 0.08 percent as the legal limit;
    (c) Make operating a motor vehicle by an individual at or above the 
legal limit a per se offense;
    (d) Provide for primary enforcement;
    (e) Apply the 0.08 BAC legal limit to the State's criminal code 
and, if the State has an administrative license suspension or 
revocation (ALR) law, to its ALR law; and
    (f) Be deemed to be or be equivalent to the standard driving while 
intoxicated offense in the State.


Sec.  1225.5  General requirements for incentive grant program.

    (a) Certification requirements.
    (1) To qualify for a first-year grant under 23 U.S.C. 163, a State 
must submit a certification by an appropriate State official, that the 
State has enacted and is enforcing a 0.08 BAC per se law that conforms 
to 23 U.S.C. 163 and Sec. 1225.4 of this part and that the funds will 
be used for eligible projects and programs.
    (i) If the State's 0.08 BAC per se 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 0.08 BAC 
per se law that conforms to 23 U.S.C. 163 and 23 CFR 1225.4, 
(citations to State law), and that the funds received by the (State 
or Commonwealth) of ---------- under 23 U.S.C. 163 will be used for 
projects eligible

[[Page 6099]]

for assistance under title 23 of the United States Code, which 
include highway construction as well as highway safety projects and 
programs.

    (ii) If the State's 0.08 BAC per se law is not currently in effect, 
but will become effective and be enforced before the end of the current 
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 0.08 BAC per se law that 
conforms to 23 U.S.C. 163 and 23 CFR 1225.4, (citations to State 
law), and will become effective and be enforced as of (effective 
date of the law), and that the funds received by the (State or 
Commonwealth) of ---------- under 23 U.S.C. 163 will be used for 
projects eligible for assistance under title 23 of the United States 
Code, which include highway construction as well as highway safety 
projects and programs.

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

    (Name of certifying official), (position title), of the (State 
or Commonwealth) of ----------, do hereby certify that the (State or 
Commonwealth) of ---------- has not changed and is enforcing a 0.08 
BAC per se law, which conforms to 23 U.S.C. 163 and 23 CFR 1225.4, 
and that the funds received by the (State or Commonwealth) of ------
---- under 23 U.S.C. 163 will be used for projects eligible for 
assistance under title 23 of the United States Code, which include 
highway construction as well as highway safety projects and 
programs.

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

    (Name of certifying official), (position title), of the (State 
or Commonwealth) of ----------, do hereby certify that the (State or 
Commonwealth) of ---------- has amended and is enforcing a 0.08 BAC 
per se law that conforms to 23 U.S.C. 163 and 23 CFR 1225.4, 
(citations to State law), and that the funds received by the (State 
or Commonwealth) of ----------, under 23 U.S.C. 163 will be used for 
projects eligible for assistance under title 23 of the United States 
Code, which include highway construction as well as highway safety 
projects and programs.

    (3) An original and four copies of the certification shall be 
submitted to the appropriate NHTSA Regional Administrator. Each 
Regional Administrator will forward the certifications it receives to 
appropriate NHTSA and FHWA offices.
    (4) Each State that submits a certification will be informed by the 
agencies whether or not it qualifies for funds.
    (5) To qualify for grant funds in a fiscal year, certifications 
must be received by the agencies not later than July 15 of that fiscal 
year.
    (b) Limitation on grants. A State may receive grant funds, subject 
to the following limitations:
    (1) The amount of a grant apportioned to a State under Sec.  1225.4 
of this part shall be determined by multiplying:
    (i) The amount authorized to carry out section 163 of 23 U.S.C. for 
the fiscal year; by
    (ii) The ratio that the amount of funds apportioned to each such 
State under section 402 for such fiscal year bears to the total amount 
of funds apportioned to all such States under section 402 for such 
fiscal year.
    (2) A State may obligate grant funds apportioned under this part 
for any project eligible for assistance under title 23 of the United 
States Code.
    (3) The Federal share of the cost of a project funded with grant 
funds awarded under this part shall be 100 percent.


Sec.  1225.6  Award procedures for incentive grant program.

    (a) In each Federal fiscal year, grant funds will be apportioned to 
eligible States upon submission and approval of the documentation 
required by Sec.  1225.5(a) and subject to the limitations in Sec.  
1225.5(b). The obligation authority associated with these funds are 
subject to the limitation on obligation pursuant to section 1102 of the 
Transportation Equity Act for the 21st Century (TEA-21).
    (b) As soon as practicable after the apportionment in a fiscal 
year, but in no event later than September 30 of the fiscal year, the 
Governor's Representative for Highway Safety and the Secretary of the 
State's Department of Transportation for each State that receives an 
apportionment shall jointly identify, in writing to the appropriate 
NHTSA Regional Administrator and FHWA Division Administrator, the 
amounts of the State's apportionment that will be obligated to highway 
safety program areas and to Federal-aid highway projects.


Sec.  1225.7  Certification requirements for sanction program.

    (a) Beginning with FY 2004, to avoid the withholding of funds, each 
State shall certify to the Secretary of Transportation, before the last 
day of the previous fiscal year, that it meets all of the requirements 
of 23 U.S.C. 163 and this part.
    (b) The certification shall contain a statement from an appropriate 
State official that the State has enacted and is enforcing a 0.08 BAC 
per se law that conforms to 23 U.S.C. 163 and 23 CFR part 1225. The 
certifying statement should be worded as follows:

    I, (name of certifying official), (position title), of the 
(State or Commonwealth) of ----------, do hereby certify that the 
(State or Commonwealth) of ----------, has enacted and is enforcing 
a 0.08 BAC per se law that conforms to the requirements of 23 U.S.C. 
163 and 23 CFR 1225, (citations to State law).

    (c) An original and four copies of the certification shall be 
submitted to the appropriate NHTSA Regional Administrator. Each 
Regional Administrator will forward the certifications it receives to 
appropriate NHTSA and FHWA offices.
    (d) Once a State has been determined to be in compliance with the 
requirements of 23 U.S.C. 163 and this part, it is not required to 
submit additional certifications, except that the State shall promptly 
submit an amendment or supplement to its certification provided under 
paragraphs (a) and (b) of this section if the State's 0.08 BAC per se 
law changes.
    (e) FY 2003 Certifications.
    (1) Any State that submits a certification of compliance in 
conformance with the requirements of 23 U.S.C. 163 on or before July 
15, 2003, will qualify for an incentive grant in FY 2003 and will avoid 
the withholding of funds in FY 2004. All certifications submitted in 
conformance with the incentive grant program will meet the 
certification requirements of the sanction program. No further 
certification is necessary from these States.
    (2) Any State that submits a certification of compliance in 
conformance with the requirements of 23 U.S.C. 163 between July 16, 
2003 and September 30, 2003, will not qualify for an incentive grant in 
FY 2003, but will meet the certification requirements of the sanction 
program, thereby avoiding the withholding of funds in FY 2004. No 
further certification is necessary from these States.


Sec.  1225.8  Funds withheld from apportionment.

    (a) Beginning in fiscal year 2004, the Secretary shall withhold two 
percent of the amount required to be apportioned for Federal-aid 
highways to any State under each of paragraphs (1), (3), and (4) of 
section 104(b) of title 23, United

[[Page 6100]]

States Code, if a State has not enacted and is not enforcing a law that 
meets the requirements of 23 U.S.C. 163 and Sec.  1225.4 of this part.
    (b) In fiscal year 2005, the Secretary shall withhold four percent 
of the amount required to be apportioned for Federal-aid highways to 
any State under each of paragraphs (1), (3), and (4) of section 104(b) 
of title 23, United States Code, if a State has not enacted and is not 
enforcing a law that meets the requirements of 23 U.S.C. 163 and Sec.  
1225.4 of this part.
    (c) In fiscal year 2006, the Secretary shall withhold six percent 
of the amount required to be apportioned for Federal-aid highways to 
any State under each of paragraphs (1), (3), and (4) of section 104(b) 
of title 23, United States Code, if a State has not enacted and is not 
enforcing a law that meets the requirements of 23 U.S.C. 163 and Sec.  
1225.4 of this part.
    (d) In fiscal year 2007, and in each fiscal year thereafter, the 
Secretary shall withhold eight percent of the amount required to be 
apportioned for Federal-aid highways to any State under each of 
paragraphs (1), (3), and (4) of section 104(b) of title 23, United 
States Code, if a State has not enacted and is not enforcing a law that 
meets the requirements of 23 U.S.C. 163 and Sec.  1225.4 of this part.


Sec.  1225.9  Period of availability of withheld funds.

    If a State meets the requirements of 23 U.S.C. 163 and Sec.  1225.4 
of this part within four years from the date that a State's 
apportionment is reduced under Sec.  1225.8, the apportionment for such 
State shall be increased by an amount equal to the reduction, as 
illustrated by appendix A of this part.


Sec.  1225.10  Apportionment of withheld funds after compliance.

    If a State has not met the requirements of 23 U.S.C. 163 and Sec.  
1225.4 of this part by October 1, 2007, the funds withheld under Sec.  
1225.8 shall begin to lapse and will no longer be available for 
apportionment to the State, in accordance with appendix A of this part.


Sec.  1225.11  Notification of compliance.

    (a) Beginning with FY 2004, NHTSA and FHWA will notify States of 
their compliance or noncompliance with the statutory and regulatory 
requirements of 23 U.S.C. 163 and this part, based on a review of 
certifications received. States will be required to submit their 
certifications on or before September 30, to avoid the withholding of 
funds in a fiscal year.
    (b) This notification of compliance will take place through FHWA's 
normal certification of apportionments process. If the agencies do not 
receive a certification from a State or if the certification does not 
conform to the requirements of 23 U.S.C. 163 and this part, the 
agencies will make an initial determination that the State is not in 
compliance.


Sec.  1225.12  Procedures affecting states in noncompliance.

    (a) Each fiscal year, beginning with FY 2004, based on a 
preliminary review of certifications received, States that are 
determined to be in noncompliance with 23 U.S.C. 163 and this part, 
will be advised of the amount of funds expected to be withheld through 
FHWA's advance notice of apportionments, normally not later than ninety 
days prior to final apportionment.
    (b) If NHTSA and FHWA determine that any State is not in compliance 
with 23 U.S.C. 163 and this part, based on the agencies' preliminary 
review, the State may, within 30 days of its receipt of the advance 
notice of apportionments, submit documentation showing why it is in 
compliance. Documentation shall be submitted through NHTSA's Regional 
Administrators, who will refer the requests to appropriate NHTSA and 
FHWA offices for review.
    (c) Each fiscal year, each State determined not to be in compliance 
with 23 U.S.C. 163 and this part, based on NHTSA's and FHWA's final 
determination, will receive notice of the funds being withheld under 
Sec.  1225.8 from apportionment, as part of the certification of 
apportionments required under 23 U.S.C. 104(e), which normally occurs 
on October 1 of each fiscal year.

Appendix A to Part 1225--Effects of the 0.08 BAC Sanction Program on 
Non-Complying States

    Effects of the 0.08 BAC Sanction Program on Non-Complying States
------------------------------------------------------------------------
                               Withhold
         Fiscal year          (percent)          Lapse  (percent)
------------------------------------------------------------------------
2004........................         2   ...............................
2005........................         4   ...............................
2006........................         6   ...............................
2007........................         8   ...............................
2008........................         8   2% withheld in FY04.
2009........................         8   4% withheld in FY05.
2010........................         8   6% withheld in FY06.
2011........................         8   8% withheld in FY07.
2012........................         8   8% withheld in FY08.
------------------------------------------------------------------------


    Issued on: January 31, 2003.
Mary E. Peters,
Administrator, Federal Highway Administration.
Jeffrey W. Runge,
Administrator, National Highway Traffic Safety Administration.
[FR Doc. 03-2790 Filed 2-5-03; 8:45 am]
BILLING CODE 4910-59-P