[Federal Register Volume 68, Number 163 (Friday, August 22, 2003)]
[Rules and Regulations]
[Pages 50703-50710]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-21492]


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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: Final rule.

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SUMMARY: This final rule implements a 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 or breath 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 final rule defines 
what constitutes a conforming 0.08 BAC law for purposes of this 
statute.

DATES: Effective Date: This final rule becomes effective on October 21, 
2003.
    Compliance Date: To meet the requirements of the 0.08 BAC sanction 
program, States must enact and enforce a conforming Section 163 law on 
or before September 30, 2003.

FOR FURTHER INFORMATION CONTACT: In NHTSA: Ms. Jo Ann Moore, Office of 
Injury Control Operations & Resources, NTI-200, telephone (202) 366-
2121, fax (202) 366-7394; Ms. Carmen Hayes, Office of Injury Control 
Operations & Resources, NTI-200, telephone (202) 366-2121; Ms. Tyler 
Bolden, Office of Chief Counsel, NCC-113, telephone (202) 366-1834, fax 
(202) 366-3820.
    In FHWA: Mr. Rudy Umbs, Office of Safety, HSA-1, telephone (202) 
366-2177, fax (202) 366-3222; Mr. Raymond W. Cuprill, Office of Chief 
Counsel, HCC-30, telephone (202) 366-0791, fax (202) 366-7499; or Mr. 
Byron E. Dover, Office of Safety, HSA-10, telephone (202) 366-2161, fax 
(202) 366-2249.

SUPPLEMENTARY INFORMATION:

[[Page 50704]]

Table of Contents for Supplementary Information

I. Background
    A. TEA-21, Section 163 Incentive Grant Program
    B. Effects of Section 163 Incentive Grant Program
    C. DOT Appropriations Act for FY 2001--Sanction Program
II. Notice of Proposed Rulemaking for the 0.08 BAC Sanction Program
    A. Compliance Criteria
    B. Demonstrating Compliance
    C. Period of Availability of Funds
III. Comments
    A. Federalism
    B. Comments Regarding Compliance Criteria
    C. Comments Regarding Procedures
IV. Regulatory Analyses and Notices
    A. Executive Order 12988 (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 Summary Impact Statement)
    H. Executive Order 13175 (Consultation and Coordination with 
Indian Tribal Governments)

I. Background

A. 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 effective 0.08 BAC laws. Section 163 provided 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 final 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, after considering the comments 
filed in response to the interim final rule, the agencies published a 
final rule implementing the Section 163 incentive grant program. See 64 
FR 35568.

B. Effects of Section 163 Incentive Grant Program

    Before the Section 163 incentive grant program was signed into law, 
only 16 States had enacted laws that established 0.08 BAC as their per 
se limit. Between June 1998 and October 2000, only two additional 
States and the District of Columbia enacted and began enforcing 0.08 
BAC laws that met all the Section 163 criteria.

C. DOT Appropriations Act for FY 2001--Sanction Program

    In an effort to further reduce impaired 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. That program 
will continue through FY 2003.
    The DOT Appropriations Act of FY 2001 was signed into law on 
October 23, 2000. Since that date, twenty-six additional States have 
enacted conforming 0.08 BAC laws. As of August 15, 2003, forty-four 
States, the District of Columbia and the Commonwealth of Puerto Rico 
have enacted 0.08 BAC laws that meet all the requirements of Section 
163.\1\ See Table 1.
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    \1\ To date, the following States have not enacted conforming 
0.08 BAC laws: Colorado, Delaware, Minnesota, New Jersey, 
Pennsylvania and West Virginia.

   Table 1.--States With 0.08 BAC Laws That Meet Section 163 Criteria
                         [as of August 15, 2003]
------------------------------------------------------------------------
                                                   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
Iowa............................................    04/24/03    07/01/03
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
Massachusetts...................................    06/30/03    06/30/03
Michigan........................................    07/15/03    09/30/03
Mississippi.....................................    03/11/02    07/01/02
Missouri........................................    06/12/01    09/29/01
Montana.........................................    04/15/03    04/15/03
Nebraska........................................    03/01/01    09/01/01
Nevada..........................................    06/10/03    09/23/03
New Hampshire...................................    04/15/93    01/01/94
New Mexico......................................    03/19/93    01/01/94
New York........................................    12/30/02    11/01/03
North Carolina..................................    07/05/93    10/01/93
North Dakota*...................................    04/07/03    08/01/03
Ohio............................................    03/31/03    07/01/03
Oklahoma........................................    06/08/01    07/01/01
Oregon..........................................    08/04/83    10/15/83
Puerto Rico.....................................    01/10/00    01/10/01
Rhode Island....................................    07/02/03    07/02/03
South Carolina..................................    06/19/03    08/19/03
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
Wisconsin.......................................    07/03/03    09/30/03
Wyoming.........................................    03/11/02    07/01/02
-------------------------------------------------
Total: 44 States, plus the District of Columbia and Puerto Rico
------------------------------------------------------------------------
* North Dakota's 0.08 BAC law, which was scheduled to go into effect on
  August 1, 2003, was suspended by submission of a referendum petition,
  and the future status of this law is currently uncertain.

II. Notice of Proposed Rulemaking for the 0.08 BAC Sanction Program

    On February 6, 2003, the agencies published a notice of proposed 
rulemaking (NPRM) in the Federal Register to define the criteria to be 
applied to determine what constitutes a valid 0.08 BAC law for purposes 
of the statute (68 FR 6091). The statute requires the Secretary to 
withhold from apportionment a portion of Federal-aid highway funds from 
any State that does not meet the Section 163 requirements, beginning on 
October 1, 2003. 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. The Secretary has delegated the authority to 
define conforming 0.08 BAC laws to NHTSA and the authority to implement 
the 0.08 BAC sanction program to the FHWA.
    As required by statute, if any State has not enacted and is not 
enforcing a conforming 0.08 BAC law by October 1,

[[Page 50705]]

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. 
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.

A. Compliance Criteria

    In the NPRM, the agencies proposed that the same criteria that had 
been applied since 1998 to determine whether a State had enacted and 
made effective a conforming 0.08 BAC law under the Section 163 
incentive grant program, be applied also to the Section 163 sanction 
program. See 64 FR 35568. To meet the Section 163 criteria, a 
conforming 0.08 BAC 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 or Breath Alcohol Concentration (BAC) of 0.08 Percent
    A State must set a level of no more than 0.08 percent as the per se 
limit for blood or breath 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 meet the 
requirements of this part.
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 establish an 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.
    A more detailed discussion of the six elements described above is 
contained in the rulemaking for the incentive grant program. See 64 FR 
at 46883-84.

B. Demonstrating Compliance

    To demonstrate compliance with this rulemaking, the agencies 
proposed that States be required to submit conforming certifications to 
the appropriate NHTSA Regional Administrator on or before July 15, to 
receive an incentive grant in FY 2003; and on or before September 30, 
to avoid the withholding of funds in FY 2004 and subsequent fiscal 
years.
    In addition, the NPRM proposed not to require States in compliance 
with the Section 163 incentive grant program in FY 2003 to submit 
additional certifications for FY 2004, unless their law/s had changed 
in the interim.
    Each State initially determined to be in noncompliance would, under 
the proposal, have until September 30 to rebut the initial 
determination or to come into compliance. The State would be notified 
of the agencies' final determination of compliance or noncompliance and 
the amount of funds to be withheld as part of the final notice of 
apportionments (which normally is issued on October 1 of each year).

C. Period of Availability of Funds

    The NPRM proposed an incremental approach to the withholding of 
funds apportionment for noncompliance. Specifically, the NPRM proposed 
that 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 reached eight percent 
in FY 2007 and thereafter. See Table 2.
    In addition, the NPRM proposed that any State that comes into 
compliance with the requirements of Section 163 on or before September 
30, 2007, would have their withheld funds restored to them. 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 
would begin to lapse and would no longer be available for 
apportionment.

   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.
------------------------------------------------------------------------

III. Comments

    The NPRM was published on February 6, 2003. The agencies received 
five comments in response to it. Comments were received from two State 
agencies and three concerned individuals. The State comments were 
submitted by Judy E. Brown, Chief of the Texas Department of Public 
Safety (TXDPS), Driver License Division, and Frank J. Busalacchi, 
Secretary for the Wisconsin Department of Transportation (WIDOT).

A. Federalism

    To ensure that States had a full opportunity to raise any 
Federalism concerns, the agencies conducted an outreach program aimed 
at eliciting comments on the possible Federalism implications of this 
rule.
    Since the incentive grant program was signed into law, States have 
had continuous contact with the agencies. States that were considering 
passing 0.08 BAC legislation were encouraged to submit copies of their 
proposals to the agencies' regional offices for review and initial 
comment. These legislative proposals were then forwarded to NHTSA's 
Office of Chief Counsel (OCC) to determine compliance with the 
requirements of Section 163. During this review process, OCC staff and 
staff from the Office of Injury Control Operations and Resources (ICOR) 
interacted with different State employees and officials by telephone 
and through electronic mail. These communications, both formal and 
informal, provided substantial opportunities for State and local 
officials to discuss and comment

[[Page 50706]]

on program compliance and policy issues. Following a full review of all 
applicable State laws and implementing regulations, OCC notified States 
of their compliance with Section 163 by letter. Any State found not to 
be in compliance with Section 163 was notified of the reasoning behind 
this determination and reminded of the impending sanction program 
becoming effective in FY 2004.
    The agencies also solicited comments in the NPRM, and following its 
publication, sent letters requesting comments on possible Federalism 
implications to several National organizations representing State and 
local officials. The six organizations included: The National Governors 
Association, National Conference of State Legislatures, International 
Association of Chiefs of Police, Governors Highway Safety Association, 
National Sheriff's Association, and the American Association of State 
Highway and Transportation Officials. NHTSA has not received any 
indication of concerns about the Federalism implications of this 
rulemaking from these representatives. In addition, none of these 
groups submitted comments in response to the NPRM.
    In sum, the agencies have considered the impact of this action on 
State and local agencies. We have concluded that the effects on States 
and local agencies will be minimal and consist of changes that States 
make as a matter of course when amending a State law. Furthermore, the 
agencies received no comments from State or local agencies to indicate 
otherwise. Accordingly, the agencies do not believe that this final 
rule raises any Federalism issues and no changes to this document are 
required.

B. Comments Regarding Compliance Criteria

    The agencies received few comments to the NPRM. In particular, the 
agencies received no comments or objections to the compliance criteria 
proposed in the NPRM. Accordingly, these portions of the NPRM are being 
adopted without change.

C. Comments Regarding Procedures

    The agencies received some comments and questions regarding 
procedural aspects of the NPRM. Texas, which has had a conforming 0.08 
BAC law since September 1, 1999, commented on the proposed 
certification process. Specifically, the TXDPS commented favorably on 
the proposed certification process, stating that the ``proposed 
certifications will legitimately serve NHTSA's goal of ascertaining 
state compliance for the purpose of Federal-aid highway and grant funds 
distribution.'' Accordingly, TXDPS indicated that it has no objections 
or additional comments regarding the agencies' proposal.
    WIDOT requested clarification regarding ``the mechanics and 
timeline of the process to restore withheld funding.'' Specifically, 
WIDOT noted that Section 1225.9 of the proposed rule did not specify 
``the manner in which withheld funds would be restored to a state that 
comes into compliance following September 30, 2003.'' In its comments, 
WIDOT indicated that it presumed that the certification process 
detailed in Section 1225.7 of the proposed rule would be used for 
restoration of withheld funds. However, WIDOT noted that the rule did 
not specify that this would be the case. In addition, it remarked that 
the NPRM did not indicate ``how quickly the restored funding will be 
available to a compliant state.''
    In response to these comments, the agencies have decided to modify 
the regulation by adding new provisions to the sections regarding 
``Certification requirements for sanction program'' and ``Period of 
availability of withheld funds.'' The agencies have determined that no 
other changes to the regulation are needed.
    These new provisions specify the certification process that should 
be followed for States that comply with the requirements of Section 163 
in FY 2004 or thereafter. These new provisions also clarify that States 
that are seeking compliance with Section 163, following a withholding 
of funds under Section 1225.8, should contact their appropriate NHTSA 
Regional Administrator and inform them that they have enacted a 0.08 
BAC law they believe to be conforming. The new law and subsequent 
certification of compliance will be reviewed by NHTSA. If NHTSA 
determines, based on the State's law and its certification, that the 
State is now in compliance with Section 163 and these implementing 
regulations, NHTSA will inform the FHWA of its determination and the 
FHWA will restore all withheld apportionment funds to the State's 
appropriate apportionment categories as quickly as possible.
    Three individuals also commented on the proposal, expressing 
support and opposition to the federal policy underlying the 
Congressional mandate and raising concerns about the constitutionality 
of the proposal and the ability of States to receive incentive grants 
in FY 2003.
    Similar programs, such as the National Minimum Drinking Age and the 
National Maximum Speed Limit programs, have been found constitutional 
in the past and we consider this program to fall within the ambit of 
those judicial rulings. See, South Dakota v. Dole, 483 U.S. 203 (1987) 
(upholding the withholding of funds from States without a conforming 
minimum drinking age act under the spending clause and the Twenty-first 
Amendment) and The People v. Williams, 175 Cal. App. 3d Supp. 16 (1985) 
(finding that the Federal withholding of funds from States without a 
conforming maximum speed limit was an appropriate exercise of Congress' 
authority under the spending clause and that the authority was not 
limited by the Tenth Amendment).
    The agencies also note that a commenter from Texas expressed 
concern about this rulemaking because of ``a potential Procedural Due 
Process problem.'' She asserted that, ``according to a literal reading 
of Sec.  1225.5(a)(1), Louisiana's 0.08 BAC law must be enforced (and 
therefore must also be effective) when Louisiana sends in its 
certification letter * * * [yet] [t]he last day that Louisiana can send 
a certification letter is July 15, 2003--a full 2\1/2\ months before 
its 0.08 BAC law will be effective and enforced.''
    To address this concern, the commenter suggested certain revisions 
to the certification statements to allow Louisiana to qualify for an 
incentive grant fund in FY 2003. Specifically, the commenter suggested 
that the agencies amend the certification statement contained in 
Section 1225.5(a)(1) to allow States to submit certifications by July 
15, 2003, if the newly enacted laws become effective before the end of 
the fiscal year.
    While it is clear that States have no property interest in 
receiving TEA-21 funds, the comment raises a legitimate question 
regarding the manner in which States, such as Louisiana, are to certify 
that they qualify for an incentive grant if they enact a law prior to 
July 15 (when certifications are due to be submitted), and their law 
becomes effective on or before September 30, but after July 15. This 
issue had already been addressed in the 0.08 incentive grant 
regulations. See 64 FR at 35572.
    In particular, the regulations provide that, ``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

[[Page 50707]]

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.'' 23 CFR 1225.5(a)(1)(ii).

    Since the start of the incentive grant program in 1998, the 
agencies have received and accepted certifications from a number of 
States using this type of certification statement. Given that the State 
of Louisiana enacted a conforming 0.08 BAC per se law prior to July 15, 
2003, and it will become effective on September 30, 2003, the State 
should be able to submit this type of certification, in conformance 
with the current regulation.
    The agencies did not propose to change this aspect of the 
regulation. However, after consideration of the comments received in 
response to this action, the agencies have decided to modify the 
certification requirements for the sanction program by adopting a 
similarly worded certification for States that are seeking to 
demonstrate conformance with the sanction program based on an enacted 
law that has not yet become effective.

IV. Regulatory Analyses and Notices

A. Executive Order 12988 (Civil Justice Reform)

    This final rule will 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.

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

    The agencies have determined that this action is a significant 
regulatory action within the meaning of Executive Order 12866 and is 
significant within the meaning of the Department of Transportation 
Regulatory Policies and Procedures. This determination is based on the 
fact that the withholding of Federal-aid highway funds under the 0.08 
BAC sanction program is a matter of substantial interest to the public 
and to Congress. Further, there is a possibility that the State 
withholdings resulting from this action could total from $34 million to 
over $137 million. Accordingly, a final regulatory evaluation was 
prepared in conjunction with this rule.
    The final regulatory evaluation concludes that, aside from 
advertising costs, the costs for implementing this rulemaking action 
are minimal and consist of changes that States make as a matter of 
course when amending a State law. A complete discussion of the economic 
impact of this rule is contained in the final regulatory evaluation, 
which is in the docket.

C. Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), the agencies have evaluated the effects of this 
action on small entities. 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 enacted 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.
    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 6 States affected, only 15 percent of all State highway 
expenditures. Accordingly, even if the sanction were 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 
1.09 percent (in Minnesota or New Jersey) to 1.93 percent (in 
Delaware). Further, most of these businesses do not rely totally on 
highway construction contracts for their revenue.
    Based on these considerations, we hereby certify that this action 
will not have a significant economic impact on a substantial number of 
small entities.

D. 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.

E. National Environmental Policy Act

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

F. 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 final 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.

G. Executive Order 13132 (Federalism Summary Impact Statement)

    Executive Order 13132 requires Federal agencies to consider the 
impact of their regulatory actions on State and local governments. 
Where such actions have ``federalism implications,'' agencies are 
directed to provide ``a description of the extent of the agency's prior 
consultation with State and local officials; a summary of the nature of 
their concerns and the agency's position supporting the need to issue 
the regulation; and a statement of the extent to which the concerns of 
the State and local officials have been met.''
    For the reasons cited earlier in the preamble, the agencies 
conclude that the effects of this rule on States and local agencies 
will be minimal and consist of changes that States make as a matter of 
course when amending a State law. Furthermore, the agencies note that 
Congress created the 0.08 BAC sanction program in Public Law 106-346-
Appendix, and the agencies are required to carry out this program in 
accordance with the principles established by Congress.

[[Page 50708]]

    Accordingly, the agencies do not believe that this final rule 
raises any Federalism issues and no changes to this document are 
required.

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

    The agencies have analyzed this action under Executive Order 13175, 
and believe that this final rule will not have a substantial direct 
effect on one or more Indian tribes; will not impose substantial direct 
compliance costs on Indian tribal governments; and will 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.

0
In accordance with the foregoing, 23 CFR Part 1225 is revised to read 
as follows:

PART 1225--OPERATION OF MOTOR VEHICLES BY INTOXICATED PERSONS

Sec.
1225.1 Scope.
1225.2 Purpose.
1225.3 Definitions.
1225.4 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 50 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 or breath 
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 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.


[[Page 50709]]


    (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 is 
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, the amounts of the State's apportionment 
that will be obligated to highway safety program areas and to Federal-
aid highway projects. Each NHTSA Regional Administrator will forward 
copies of the joint letters to the appropriate NHTSA and FHWA offices.
    (c) Apportionments will not be made by the NHTSA and FHWA unless 
this letter from the State is received.


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 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.
    (1) 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:

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 1225.4, (citations to State law).

    (2) 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:

I, (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 the requirements of 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).

    (c) An original and four copies of the certification shall be 
submitted to the appropriate NHTSA Regional Administrator. Each NHTSA 
Regional Administrator will forward copies of the certifications 
received to the appropriate NHTSA and FHWA offices.
    (d) Once a State has been determined to be in compliance with the 
requirements of 23 U.S.C. 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 
this section if the State's 0.08 BAC per se law changes.
    (e) Certifications submitted in FY 2003. (1) Any State that submits 
a certification of compliance under Sec.  1225.5 of this part, 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.
    (2) Any State that submits a certification of compliance under this 
section, 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.
    (f) Certifications submitted in FY 2004 or thereafter. Any State 
that has been in noncompliance with the requirements of 23 U.S.C. 163 
and this part, in or after FY 2004, will initially be subject to a 
withholding of funds in accordance with Sec.  1225.8 of this part. 
Following the submission of a conforming certification of compliance by 
such States, all withheld funds will be restored to a States' 
appropriate apportionment categories in accordance with Sec.  1225.9 of 
this part.

[[Page 50710]]

Sec.  1225.8  Funds withheld from apportionment.

    (a) Beginning in fiscal year 2004, the Secretary shall withhold 2 
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.
    (b) In fiscal year 2005, the Secretary shall withhold 4 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 6 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 8 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 4 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. The restored apportionment will be available 
to a State, as quickly as possible, upon a determination by NHTSA that 
the State is in conformance and notification to the FHWA.


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, by June 15 of any fiscal year, 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, each State determined to be in noncompliance 
with 23 U.S.C. 163 and this part, based on NHTSA and FHWA's preliminary 
review of its certification, will be advised of the amount of funds 
expected to be withheld under Sec.  1225.8 from apportionment, as part 
of the advance notice of apportionments required under 23 U.S.C. 
104(e), which is ordinarily issued on July 1 of each fiscal year.
    (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 submit documentation showing why it is in 
compliance. States will have until September 30 to rebut the initial 
determination or to come into compliance with 23 U.S.C. and this part. 
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
------------------------------------------------------------------------
        Fiscal year          Withhold                 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.
------------------------------------------------------------------------


    Issued on: August 18, 2003.
Mary E. Peters,
Administrator, Federal Highway Administration.
Jeffrey W. Runge,
Administrator, National Highway Traffic Safety Administration.
[FR Doc. 03-21492 Filed 8-21-03; 8:45 am]
BILLING CODE 4910-59-U