[Federal Register Volume 71, Number 77 (Friday, April 21, 2006)]
[Rules and Regulations]
[Pages 20555-20573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3781]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

23 CFR Part 1313

[Docket No. NHTSA-2005-23454]
RIN 2127-AJ73


Amendment To Grant Criteria for Alcohol-Impaired Driving 
Prevention Programs

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

ACTION: Final rule.

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SUMMARY: This final rule amends the regulation that implements 23 
U.S.C. 410, under which States can receive incentive grants for 
alcohol-impaired driving prevention programs. The final rule implements 
changes that were made to the Section 410 program by the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
For Users (SAFETEA-LU).
    SAFETEA-LU provides States with two alternative means to qualify 
for a Section 410 grant. Under the first alternative, States may 
qualify as a ``low fatality rate State'' if they have an alcohol-
related fatality rate of 0.5 or less per 100 million vehicle miles 
traveled (VMT). Under the second alternative, States may qualify as a 
``programmatic State'' if they demonstrate that they meet three of 
eight grant criteria for fiscal year 2006, four of eight grant criteria 
for fiscal year 2007, and five of eight grant criteria for fiscal years 
2008 and 2009. Qualifying under both alternatives does not entitle the 
State to receive additional grant funds. SAFETEA-LU also provides for a 
separate grant to the ten States that are determined to have the 
highest rates of alcohol-related driving fatalities.
    This final rule establishes the criteria States must meet and the 
procedures they must follow to qualify for Section 410 grants, 
beginning in FY 2006.

DATES: This final rule becomes effective on June 20, 2006.

FOR FURTHER INFORMATION CONTACT: For programmatic issues: Ms. Carmen 
Hayes, Highway Safety Specialist, Injury Control Operations & Resources 
(ICOR), NTI-200, National Highway Traffic Safety Administration, 400 
Seventh Street, SW., Washington, DC 20590. Telephone: (202) 366-2121. 
For legal issues: Mr. Roland (R.T.) Baumann III, Attorney-Advisor, 
Legislation and General Law Division, Office of the Chief Counsel, NCC-
113, National Highway Traffic Safety Administration, 400 Seventh 
Street, SW., Washington, DC 20590. Telephone: (202) 366-1834.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. Section 410 Statutory Requirements
III. Section 410 Administrative Requirements
IV. Notice of Proposed Rulemaking
V. Comments
    A. In General
    B. Comments Regarding Programmatic Criteria
    1. High Visibility Impaired Driving Enforcement Program
    2. Prosecution and Adjudication Outreach Program
    3. BAC Testing Program
    4. High Risk Drivers Program
    5. Alcohol Rehabilitation or DWI Court Program
    6. Underage Drinking Prevention Program
    7. Administrative License Suspension or Revocation System
    8. Self-Sustaining Impaired Driving Prevention Program
    C. Comments Regarding Low and High Fatality Rate States
    D. Comments Regarding Administrative Issues
VI. Statutory Basis for This Action
VII. Regulatory Analyses and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act
    C. Executive Order 13132 (Federalism)
    D. Executive Order 12988 (Civil Justice Reform)
    E. Paperwork Reduction Act
    F. Unfunded Mandates Reform Act
    G. National Environmental Policy Act
    H. Executive Order 13175 (Consultation and Coordination With 
Indian Tribes)
    I. Plain Language

[[Page 20556]]

    J. Regulatory Identifier Number (RIN)
    K. Privacy Act

I. Background

    The Alcohol Impaired Driving Countermeasures program was created by 
the Drunk Driving Prevention Act of 1988 and codified at 23 U.S.C. 410. 
As originally conceived, States could qualify for basic and 
supplemental grants under the Section 410 program if they met certain 
criteria. To qualify for a basic grant, States had to provide for an 
expedited driver's license suspension or revocation system and a self-
sustaining impaired driving prevention program. To qualify for a 
supplemental grant, States had to be eligible for a basic grant and 
provide for a mandatory blood alcohol testing program, an underage 
drinking program, an open container and consumption program, or a 
suspension of registration and return of license plate program.
    During the decade and a half since the inception of the Section 410 
program, it has been amended several times to change the grant criteria 
and grant award amounts. The most recent amendments prior to those 
leading to this action arose out of the Transportation Equity Act for 
the 21st Century (TEA-21), Pub. L. 105-178. TEA-21 amended both the 
grant amounts and the criteria that States had to meet to qualify for 
both basic and supplemental grants under the Section 410 program. Under 
TEA-21, States qualified for a ``programmatic'' basic grant by meeting 
five of the seven following criteria: An administrative driver's 
license suspension or revocation system; an underage drinking 
prevention program; a statewide impaired-driving traffic enforcement 
program; a graduated driver's license system; a program to target 
drivers with a high blood alcohol concentration (BAC) level; a program 
to reduce drinking and driving among young adults (between the ages of 
21 and 34); and a BAC testing program. In addition, States could 
qualify for a ``performance'' basic grant by demonstrating that the 
percentage of fatally injured drivers in the State with a BAC of 0.10 
or more had decreased in each of the three previous calendar years and 
that the percentage of fatally injured drivers with a BAC of 0.10 or 
more in the State was lower than the average percentage for all States 
in the same three calendar years. Supplemental grants were also 
available for States that received a programmatic and/or performance 
grant and met additional criteria.
    On August 10, 2005, the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) was enacted 
(Pub. L. 109-59). Section 2007 of SAFETEA-LU made new amendments to 23 
U.S.C. 410. These amendments again modified the grant criteria and the 
award amounts and made a number of structural changes to streamline the 
program.

II. Section 410 Statutory Requirements

    The SAFETEA-LU amendments, which take effect in FY 2006, retain the 
basic grant structure of the old Section 410 Program but eliminate all 
supplemental grants. States may qualify for a grant in one of two ways. 
A State determined to be a ``low fatality rate State'' by virtue of 
having an alcohol-related fatality rate of 0.5 or less per 100 million 
VMT is eligible for a grant. SAFETEA-LU prescribes that fatality rates 
are to be determined by using data from NHTSA's Fatality Analysis 
Reporting System (FARS). States may also qualify by meeting certain 
programmatic requirements. A State may qualify as a ``programmatic 
State'' by demonstrating compliance with several specified criteria. A 
State must demonstrate compliance with three of eight alcohol-impaired 
driving prevention programmatic criteria in FY 2006, four of eight in 
FY 2007, and five of eight in FY 2008 and FY 2009. These criteria 
include the following: a high visibility impaired driving enforcement 
program; a prosecution and adjudication outreach program; a BAC testing 
program; a high-risk drivers program; an alcohol rehabilitation or DWI 
court program; an underage drinking prevention program; an 
administrative driver's license suspension or revocation system; and a 
self-sustaining impaired driving prevention program. Five of these 
programmatic criteria are continued from the TEA-21 basic grant 
criteria with minor modifications. SAFETEA-LU eliminated two 
programmatic criteria from the TEA-21 basic criteria--the graduated 
driver's licensing system and the young adult drinking and driving 
program. These criteria were replaced by a prosecution and adjudication 
outreach program and the alcohol rehabilitation or DWI court programs--
two new programmatic criteria. The eighth programmatic criterion, the 
self-sustaining impaired driving prevention program, existed under TEA-
21 as a supplemental grant criterion and is continued under SAFETEA-LU 
as the equivalent of a programmatic basic grant criterion under the old 
Section 410 program.
    The SAFETEA-LU amendments include provisions for separate grants to 
be made to ``high fatality rate States.'' Each of the ten States with 
the highest alcohol-related fatality rates, based on FARS data, are 
eligible for a separate grant. High fatality rate States may also 
qualify for funding as programmatic States.

III. Section 410 Administrative Requirements

    Under SAFETEA-LU, a number of administrative requirements apply to 
the Section 410 program. States that qualify for grants under Section 
410 are to receive funds in accordance with the apportionment formula 
in Section 23 U.S.C. 402(c)--75 percent in the ratio which the 
population of each State bears to the total population of all 
qualifying States and 25 percent in the ratio which the public road 
mileage in each State bears to the total public road mileage of all 
qualifying States. The funds available each fiscal year for separate 
grants to the ten States with the highest fatality rates are 
statutorily limited to not more than 15 percent of the funding for the 
entire Section 410 program for that fiscal year, with no single State 
receiving more than 30 percent of that amount. These funds, too, are to 
be distributed in accordance with the apportionment formula in 23 
U.S.C. 402(c).
    SAFETEA-LU provides that States may use grant funds for any of the 
eight identified alcohol-impaired driving prevention programs or to 
defray the following specified costs:

    (1) Labor costs, management costs, and equipment procurement 
costs for the high visibility, Statewide law enforcement campaigns 
under subsection (c)(1).
    (2) The costs of the training of law enforcement personnel and 
the procurement of technology and equipment, including video 
equipment and passive alcohol sensors, to counter directly impaired 
operation of motor vehicles.
    (3) The costs of public awareness, advertising, and educational 
campaigns that publicize use of sobriety check points or increased 
law enforcement efforts to counter impaired operation of motor 
vehicles.
    (4) The costs of public awareness, advertising, and educational 
campaigns that target impaired operation of motor vehicles by 
persons under 34 years of age.
    (5) The costs of the development and implementation of a State 
impaired operator information system.
    (6) The costs of operating programs that result in vehicle 
forfeiture or impoundment or license plate impoundment.

    States are required to match the grant funds they receive. The 
Federal share may not exceed 75 percent of the cost of the State's 
activities under the Section 410 program in the first and second fiscal 
years and 50 percent in the third and fourth fiscal years. States must 
also maintain aggregate expenditures from all other sources for their 
alcohol-

[[Page 20557]]

impaired driving prevention programs at or above the average level of 
such expenditures in fiscal years 2004 and 2005.

IV. Notice of Proposed Rulemaking

    The agency published a notice of proposed rulemaking (NPRM) on 
January 3, 2006 (71 FR 29) to implement the new Section 410 program 
requirements under SAFETEA-LU. The proposal set forth the requirements 
for grant awards to States that satisfy the statutorily-specified 
minimum number of programmatic criteria, depending on the grant year. 
The proposal also set forth the requirements for grant awards to States 
that qualify as high or low fatality rate States. The proposal 
specified an annual application deadline of August 1 and required 
States to certify that they would conduct activities and use funds in 
accordance with the requirements of the Section 410 program and other 
applicable laws.
    Consistent with the procedures in other highway safety grant 
programs administered by NHTSA, the proposal provided that, within 30 
days after notification of award, States must submit an electronic HS 
Form 217 obligating the grant funds to alcohol-impaired driving 
prevention programs. The proposal also required States to identify 
their proposed use of grant funds in the Highway Safety Plans prepared 
under the Section 402 Program and to detail program accomplishments in 
the Annual Report submitted under that program. The proposal explained 
that these documenting requirements must continue each fiscal year 
until all grant funds have been expended.
    To satisfy the statutory requirement that a State match grant 
funds, the agency proposed to accept a ``soft'' match in the 
administration of the Section 410 program, as it has in other grant 
programs (i.e., States could count other highway safety expenditures in 
the State, irrespective of whether those expenditures were made for 
this program). In addition, the agency proposed that States could use 
up to 10 percent of the total funds received under 23 U.S.C. 410 for 
planning and administration (P&A) costs. As with the Section 402 
program, the proposal limited Federal participation in P&A activities 
to not more than 50 percent of the total cost of such activities.

V. Comments

    The agency received submissions from twenty commenters in response 
to the NPRM--five from State agencies, thirteen from professional 
organizations, and two from ignition interlock manufacturers. The State 
comments were submitted by the Office of Traffic Safety of the 
Minnesota Department of Public Safety (Minnesota); the Bureau of 
Transportation Safety of the Wisconsin Department of Transportation, 
Division of State Patrol (Wisconsin); the West Virginia Highway Safety 
Program of the West Virginia Department of Transportation, Division of 
Motor Vehicles (West Virginia); and the Division of Traffic Safety of 
the Illinois Department of Transportation (Illinois). The 
Transportation Departments of the States of Idaho, Montana, North 
Dakota, South Dakota, and Wyoming submitted joint comments through 
their counsel (the Joint State Commenters). The professional 
organization comments were submitted by the National Traffic Law Center 
(NTLC); the Governor's Highway Safety Association (GHSA); Advocates for 
Highway and Auto Safety (Advocates); Mothers Against Drunk Driving 
(MADD); the Conference of State Court Administrators (COSCA); the Beer 
Institute; the Hospitality Resource Panel; the Maryland State Licensed 
Beverage Association; the New Jersey Licensed Beverage Association, 
Inc.; Techniques of Alcohol Management/Nevada; the Michigan Licensed 
Beverage Association; the Alaska Cabaret, Hotel, Restaurant and 
Retailer's Association; and Techniques of Alcohol Management. The last 
eight listed organizations submitted a substantially similar comment, 
and are referred to collectively below as the TAM Commenters when 
addressing that comment. The ignition interlock manufacturer comments 
were submitted by National Interlock Systems, Inc. and LifeSafer 
Interlock, Inc.

A. In General

    The agency received a variety of comments in response to the NPRM. 
Illinois agreed with the proposal and thought that it provided ``an 
appropriate outline'' for deterring impaired driving in the State. 
Advocates stated that the agency ``made reasonable decisions as to the 
requirements that must be met by `programmatic States.' '' MADD 
expressed general agreement with the regulation and each of the 
programmatic criteria.
    In contrast, GHSA stated that ``the regulations proposed * * * go 
beyond the statutory language,'' and expressed concern that ``the 
requirements will make it difficult for states to qualify for 410 
grants, particularly in the last two years of the grant program.'' The 
Joint State Commenters echoed this concern, asserting that ``[b]ecause 
of regulatory add-ons, it will become more difficult for States to 
qualify for Section 410 funds on a programmatic basis. * * *'' The Beer 
Institute asked the agency to reconsider inclusion of additional 
regulatory requirements in its proposal, but did not identify any 
specific requirements. Wisconsin and GHSA viewed the proposal as overly 
restrictive and believed its operation would not provide enough 
flexibility to deal with problems inherent to a particular State.
    These and other more specific comments related to the requirements 
that States must meet to qualify for grants are addressed below, under 
the appropriate heading. The agency received at least one comment 
concerning each of the eight criteria States must meet to qualify as a 
programmatic State and the requirements that States must meet to 
qualify for a grant as a low or high fatality rate State.

B. Comments Regarding Programmatic Criteria

1. High Visibility Impaired Driving Enforcement Program
    To qualify for a grant based on this criterion, SAFETEA-LU requires 
a State to have:

    A State program to conduct a series of high visibility, 
statewide law enforcement campaigns in which law enforcement 
personnel monitor for impaired driving, either through the use of 
sobriety check points or saturation patrols, on a nondiscriminatory, 
lawful basis for the purpose of determining whether the operators of 
the motor vehicles are driving while under the influence of 
alcohol--
    (A) If the State organizes the campaigns in cooperation with 
related periodic national campaigns organized by the National 
Highway Traffic Safety Administration, except that this subparagraph 
does not preclude a State from initiating sustained high visibility, 
Statewide law enforcement campaigns independently of the cooperative 
efforts; and
    (B) If, for each fiscal year, the State demonstrates to the 
Secretary that the State and the political subdivisions of the State 
that receive funds under this section have increased, in the 
aggregate, the total number of impaired driving law enforcement 
activities at high incident locations (or any other similar activity 
approved by the Secretary) initiated in such State during the 
preceding fiscal year by a factor that the Secretary determines 
meaningful for the State over the number of such activities 
initiated in such State during the preceding fiscal year.

    The NPRM proposed that a State would be required to participate in 
the national impaired driving campaign organized by NHTSA, conduct a 
series of additional high visibility law enforcement campaigns within 
the State on a monthly basis throughout the year, and use sobriety 
checkpoints and/or saturation patrols during these efforts.

[[Page 20558]]

To demonstrate compliance under the NPRM, the State would be required 
to submit a comprehensive plan that included guidelines, policies or 
procedures governing the Statewide enforcement program; dates and 
locations of planned law enforcement activities; a list of law 
enforcement agencies expected to participate (which must include 
agencies serving at least 50 percent of the State's population or 
serving geographic subdivisions that account for at least 50 percent of 
the State's alcohol-related fatalities in the first year, increasing 
thereafter); and a communications plan that includes a paid media buy 
plan, if the State buys media, and a description of anticipated earned 
media activities before, during and after planned enforcement efforts.
    GHSA stated that small, rural States would have a difficult time 
meeting the requirement that participating law enforcement agencies 
cover either 50 percent of the population or a geographic area that 
accounts for 50 percent of the State's alcohol-related fatalities. GHSA 
also expressed concern that States might have to ``enlist the support 
of every law enforcement agency in the geographic area'' and compliance 
would be jeopardized if even one law enforcement agency declined to 
participate.
    The proposed 50 percent population-based or fatality-based options 
for the first year of the new program mirror the requirement that 
existed in the regulation implementing the predecessor Section 410 
program authorized under TEA-21, based on similar statutory language. 
(TEA-21 and SAFETEA-LU both require States to conduct a ``Statewide'' 
law enforcement effort.) All 34 States that received Section 410 
programmatic grants in FY 2005 under the predecessor program, including 
several small, rural States, met this requirement. The agency believes 
that the 50 percent level is a generous interpretation of the statutory 
requirement for Statewide coverage and an achievable measure by all 
States.
    Moreover, the proposal does not require States to include as 
participating agencies all law enforcement agencies operating within a 
certain geographic area for that area to count toward meeting the 50 
percent requirement. The agency is mindful that overlapping 
jurisdictions exist at county and local levels. The State is required 
to include only a single law enforcement agency operating within a 
particular jurisdiction for that area (as determined by population or 
geography) to count toward the 50 percent requirement. The agency has 
revised the rule to include a definition of law enforcement agency. A 
law enforcement agency refers to an agency that is identified by the 
State and included in an enforcement plan for purposes of meeting the 
coverage requirements of the State during high visibility enforcement 
campaigns. While this clarifies the minimum requirement, we encourage 
States to include as many agencies as possible in their Statewide 
enforcement plans.
    Minnesota questioned the agency's requirement that participating 
law enforcement agencies conduct checkpoints and saturation patrols on 
at least four nights during the National Campaign. Minnesota viewed the 
requirement as ``extremely costly'' and believed it would discourage 
smaller law enforcement organizations from voluntary participation in 
the program.
    The impact of the High Visibility Impaired Driving Program 
Criterion on traffic safety is dependent on increasing high visibility 
enforcement efforts in the State. While such efforts are not without 
cost, the amount of funds available under the Section 410 program has 
tripled under the current statute, and these funds may be used to cover 
the costs of Statewide enforcement. Under these circumstances, the 
agency does not believe that a requirement for participation in 
enforcement campaigns on only four nights during the National Impaired 
Driving Crackdown that occurs once a year presents an unreasonable 
burden.
    Moreover, within the proposal's definition of sobriety checkpoint 
and high saturation patrol, there is tremendous flexibility to 
accommodate mobile or ``flexible'' checkpoints and task force 
arrangements that are multi-jurisdictional. For smaller law enforcement 
agencies that may not be able to commit resources to four activities 
during the national campaign, States may use partnerships or task force 
arrangements between law enforcement agencies. Qualifying participation 
by a smaller law enforcement agency under a task force arrangement 
would be satisfied by involvement of one officer--a manageable level of 
effort. For these reasons, we decline to change the requirement for 
four-night participation.
    The Joint State Commenters took issue with the proposed requirement 
that States conduct additional monthly activities outside the period of 
the national campaign. In their view, the statute precludes such a 
requirement and leaves this decision to the discretion of the States.
    The agency's proposal that States participate in monthly 
enforcement activities as well as the national campaign derives from 
the statutory language directing a State to conduct ``a series of'' 
high visibility, Statewide law enforcement efforts. The agency believes 
that limiting State enforcement activities to the period of a single 
national campaign under this criterion does not meet the statutory 
requirement or intent for a ``series'' of efforts. Evidence has shown 
that sustained enforcement programs have produced the largest declines 
in alcohol-related crashes (e.g., Checkpoint Tennessee)--single short-
term enforcement programs targeting impaired driving have not shown 
similar effects.
    The agency recognizes, however, that some largely rural States may 
have difficulty conducting monthly law enforcement activities aimed at 
impaired drivers. In these States, it may be impracticable because of 
weather conditions and rural expanses for all participating law 
enforcement agencies to conduct an activity every month, placing them 
at a disadvantage when compared to other States. These concerns have 
been raised in the past, in response to experience under the 
predecessor Section 410 program. To address these concerns and increase 
the parity between States in varying geographic regions, we have 
revised the rule to require that a State provide at least quarterly law 
enforcement activities during the year. Under the revision, 
participating law enforcement agencies will have to conduct activities 
on four nights during the national campaign and conduct four additional 
efforts, one during each quarter of the year.
    Under SAFETEA-LU, a State's continued compliance with the criterion 
requires that it increase the amount of impaired driving law 
enforcement activity over the previous year. The agency's proposal 
requires that a State submit a plan in each successive year of the 
program that increases the percent of the population reached by five 
percent. (The proposal inadvertently did not include language allowing 
the alternative option of an increase in the geographic area covered. 
We have amended the rule to provide that option, for consistency and 
conformity with the requirements at the 50 percent levels.) The 
increase is measured from the initial requirement that a State must use 
law enforcement agencies collectively serving at least 50 percent of 
the State's population or serving geographic areas that account for at 
least 50 percent of the State's alcohol-related fatalities. This 
approach mirrors the approach taken under the Strategic Evaluation 
States program.
    The Joint State Commenters took exception to this approach, 
claiming

[[Page 20559]]

that it ignored meaningful increases that occurred below 50 percent, 
such as an increase in law enforcement coverage from 20 percent to 40 
percent. The Joint State Commenters urged the agency to accept such 
increases and also to consider meaningful any increase in the total 
number of law enforcement activities conducted in a State.
    The comment ignores the threshold statutory requirement that the 
State conduct a ``statewide'' program. Law enforcement activity that 
covers only 20 percent or even 40 percent of the State does not satisfy 
this baseline requirement. The agency believes that a 50 percent floor 
is already generous in this regard, in view of the statutory language, 
and has made no change to the rule.
    The agency does not believe that an increase in the total number of 
law enforcement activities conducted is a practicable measure under 
this criterion. Such an approach relies on State impaired driving law 
enforcement data, and States are currently experiencing difficulty in 
obtaining accurate data. Several comments highlighted this problem. 
Minnesota indicated that ``a State does not fund all impaired driving 
enforcement activity conducted in the state and can't require a law 
enforcement agency to report data on an activity that is funded 
locally.'' According to Minnesota, ``no state would be able to certify 
that the number they provided was accurate.'' GHSA stated that it is 
``extremely difficult for some states to provide such data for agencies 
that do not receive grants.''
    For these reasons, the agency declines to adopt the approach of 
using an increase in the number of law enforcement activities as a 
measure. Adding participating law enforcement agencies incrementally 
ensures an increase in law enforcement activity without the need to 
rely on data that may be hard for States to collect. States are still 
encouraged to collect data and make all due effort to record all of the 
impaired driving law enforcement activity that is conducted in the 
State in a given year.
    West Virginia expressed concern that States with plans that 
initially cover 65 percent or more of the State's population or 
geographic areas would find it difficult to achieve an increase beyond 
that amount in subsequent years in order to maintain compliance. West 
Virginia requests that the agency consider a decrease in the impaired 
driving fatality rate as an alternative to the requirement that a State 
meaningfully increase its law enforcement activities.
    Under the agency's proposal, compliance with this provision does 
not require a State to achieve increases above 65 percent. If a State 
submits a plan in a grant year that covers 65 percent or more of the 
State, it is not required to produce plans in subsequent grant years 
that demonstrate additional increases. This approach is intended to 
accommodate rural States with diffuse populations that may find it 
difficult to achieve increases beyond 65 percent. However, we encourage 
States to include in their enforcement plans as many law enforcement 
agencies as possible, as studies indicate that increasing the scope of 
a high visibility enforcement campaign will serve to reduce impaired 
driving fatalities faster than with a more limited effort. West 
Virginia's request that the agency consider a decrease in the impaired 
driving fatality rate as an alternative is inconsistent with the 
statute, which specifies an increase in the number of law enforcement 
activities as the measure. However, States that decrease their impaired 
driving fatality rate to .5 or less per 100,000,000 vehicles miles 
traveled are eligible to receive a Section 410 grant without the need 
to meet any programmatic criteria.
    MADD requested that the agency define the term ``high-incident 
locations''. The term is not used in the rule and we decline to do so. 
The term is used as part of the statutory requirement that States 
meaningfully increase law enforcement at ``high-incident locations.'' 
The agency's proposal largely obviates the need for a definition by 
requiring that a State's enforcement plan use law enforcement agencies 
that serve geographic areas that account for at least 50 percent of the 
State's alcohol-related fatalities. In this way, the plan would 
concentrate efforts on high-incident areas simply as a product of using 
law enforcement agencies in those areas. The agency is concerned that a 
set definition may inadvertently eliminate certain areas that could 
benefit from high visibility law enforcement. We are satisfied that 
States will naturally focus efforts in areas that have the greatest 
impact on traffic safety.
    GHSA asserted that States could not submit detailed media and 
enforcement plans until they received notification of grant award. We 
do not expect a State to buy media in advance of the grant award. 
Rather, the State need only provide its intended media approach in a 
general plan. As GHSA recognizes, general plans could include 
information regarding the relative reach a State would expect to attain 
with the media buys or the type of audience the messaging would target. 
In addition to this information, the agency expects to receive 
information on the areas of the State that would be targeted and how 
the media approach will reach the intended audience. The agency's 
proposal is broad enough to accommodate this approach. We do not agree 
that States will be unable to provide a list of law enforcement 
agencies expected to participate in the effort. The planning 
requirement is necessary to ensure that States have created a Statewide 
plan. The same requirement existed under the predecessor Section 410 
program and all States receiving grant funds in FY 2005 were able to 
provide this information in an application.
2. Prosecution and Adjudication Outreach Program
    To qualify for a grant based on this criterion, SAFETEA-LU requires 
a State to have:

    A State prosecution and adjudication program under which--
    (A) The State works to reduce the use of diversion programs by 
educating and informing prosecutors and judges through various 
outreach methods about the benefits and merits of prosecuting and 
adjudicating defendants who repeatedly commit impaired driving 
offenses;
    (B) The courts in a majority of the judicial jurisdictions of 
the State are monitored on the courts' adjudication of cases of 
impaired driving offenses; or
    (C) Annual statewide outreach is provided for judges and 
prosecutors on innovative approaches to the prosecution and 
adjudication of cases of impaired driving offenses that have the 
potential for significantly improving the prosecution and 
adjudication of such cases.

    Under the agency's proposal, to achieve compliance with this 
criterion, a State would be required to conduct educational outreach 
for court professionals that focuses on innovative sentencing 
techniques in the prosecution and adjudication of impaired drivers; 
conduct educational outreach that focuses on the negative aspects of 
using diversion programs; or use a court monitoring program that 
collects specific information from a majority of State courts.
    The agency received several comments related to the prosecution and 
adjudication outreach programs that a State must conduct. As a general 
matter, commenters expressed concern about the level of agency review 
of course content and the perceived requirement to use NHTSA courses. 
GHSA recommended that NHTSA publish a list of acceptable programs and 
allow States to select from the list. The Joint State Commenters did 
not

[[Page 20560]]

object to a review of course content by NHTSA, but thought States 
should have the ``final say on the diversion and innovative approaches 
materials.'' Wisconsin requested further information on the types of 
programs that would be acceptable to the agency, including the required 
frequency of the training courses. Most of these commenters viewed the 
agency's proposal as reducing the States' flexibility to tailor course 
content to State needs.
    The agency did not intend to impose specific course content 
requirements on States or to reduce State flexibility to design 
effective courses, nor did it intend to require States to use NHTSA or 
other particular training materials. The use of the term ``NHTSA-
approved courses'' in the regulatory text was intended to denote State-
submitted course material that the agency reviewed during the 
application process and approved for use under the Section 410 program. 
Similarly, the certification process was intended to assure that once 
material is approved for use it will not be changed at a later point in 
time without the knowledge of the agency.
    In view of the confusion expressed by these commenters, the agency 
has deleted the term ``NHTSA-approved courses'' and replaced it with 
language that better clarifies this intent. Additionally, to respond to 
the comment that more guidance on program content be provided, we have 
revised the rule to provide a list of topics that each educational 
outreach program must address. The agency's approach ensures that 
States retain the flexibility to determine the specific course content 
used. States will not need to submit full course material to the agency 
for review and approval. Instead, States will submit a course syllabus 
and a certification that the outreach program covers the course topics 
listed in the rule.
    For an outreach program that provides training on innovative 
sentencing techniques in the prosecution and adjudication of impaired 
drivers, the rule provides that the course topics must include: (1) The 
use of alcohol assessments and treatment; (2) vehicle sanctions (which 
may include impoundments, plate sanctions, ignition interlock 
installation use, etc., depending on the status of State law); (3) 
electronic monitoring and home detention; and (4) information on DWI 
courts and other types of treatment courts. For an outreach program 
that focuses on the negative aspects of using diversion programs, the 
rule provides that the course topics must include: (1) The State's 
impaired driving statutes and applicable case law; (2) searches, 
seizures and arrests (an examination of current statutes and case law); 
(3) admissibility of evidence in impaired driving cases; (4) 
biochemical and physiological information (covers effects of drugs and 
alcohol on the human body); and (5) sentencing of impaired drivers.
    The agency has stopped short of requiring course materials for each 
program. However, States that are seeking additional guidance may 
choose to consult the NHTSA publications and funded training materials, 
Strategies for Addressing the DWI Offender: 10 Promising Sentencing 
Practices; Prosecuting the Impaired Driver: DUI/DWI Cases; and The 
Court's Role in Impaired Driving, for help in developing their own 
curriculum. The final rule continues to require that the education 
program be provided on an annual basis, but clarifies that it is to be 
provided at least once a year and to consist of eight hours of 
training, in response to Wisconsin's query. States may choose to 
include the training as part of a Statewide legal conference or grant 
continuing education credit for attendance.
    Wisconsin and COSCA requested that the agency identify certain 
situations where diversion programs might be considered appropriate or 
beneficial, and therefore appropriate for inclusion in course content. 
We decline to do so. The statutory provision governing this criterion 
requires States to work to ``reduce the use of diversion programs [for] 
defendants who repeatedly commit impaired driving offenses.'' In view 
of this specific requirement, it would be inappropriate for the agency 
to make recommendations that might lead to an increase in the use of 
diversion programs. As we explained in the NPRM, diversion programs 
that allow an offender to obtain a reduction or dismissal of an 
impaired driving charge or removal of an impaired driving offense from 
a driving record based on participation in an educational course or 
community service activity are problematic. Repeat offenders escape 
detection under these types of programs. States are free to discuss 
other programs that fall outside of the definition and, therefore, are 
not considered diversion programs under this criterion.
    NTLC was concerned that the agency's proposal would create an 
``express partnership between judges and prosecutors,'' in 
contravention of their ethical duties. NTLC also disagreed with the 
agency's statement in the preamble to the NPRM urging judges and 
prosecutors to exercise oversight in using diversion programs to ensure 
that the records of impaired driving remain available for enhancement 
in the event of recidivism. NTLC views record availability as a 
legislative matter and not an obligation of a judge or a prosecutor.
    Nothing in the agency's proposal requires judges and prosecutors to 
act in contravention of their ethical duties, and no changes are 
necessary. Diversion programs, as the agency has defined them in this 
rule, are programs that result in the removal of an impaired driving 
charge from a driving record. Although States may have specific laws or 
policies regarding the treatment of diverted defendants' records, 
prosecutors present the use of diversion programs and judges approve 
that use. In this way, prosecutors and judges have control over whether 
records are available for review in the event of an offender's 
recidivist behavior.
    Commenters raised several issues about the use of a State Judicial 
Educator (SJE) under the proposal. Wisconsin asked the agency to 
provide a definition for the position and asked whether the use of a 
State Judicial Education Office would qualify. GHSA asked the agency to 
clarify the requirements.
    The proposal did provide a definition. The proposal defined the SJE 
as an individual used by the State to provide support in the form of 
education and outreach programs and technical assistance to 
continuously improve personal and professional competence of all 
persons performing judicial branch functions. The agency agrees that a 
State Judicial Education Office is an acceptable alternative to the use 
of an individual to provide judicial education. The agency has revised 
the definition to allow the use of either an individual or an entity 
that provides judicial education. In response to GHSA's request for 
clarification, we believe that the definition is flexible enough to 
accept as qualifying any individual or office the State designates as 
responsible for judicial education statewide. The State may determine 
the type of qualifications and background necessary to carry out that 
role. Subject to these qualifications, current judges, retired judges, 
or judges with impaired driving case experience, for example, may serve 
as a State's SJE.
    MADD suggested that the agency amend the proposal to ensure that a 
State use only full-time Traffic Safety Resource Prosecutors (TSRPs) 
and SJEs. The agency intended that these positions would be on a full-
time basis. We have revised both of the definitions to make this clear.

[[Page 20561]]

    GHSA stated that highway safety offices would not receive 
additional funding over the course of SAFETEA-LU that would enable them 
to fund the SJE or TSRP positions. The agency has set no requirement on 
how these positions should be funded. However, provided that the 
positions offer impaired-driving-related educational programs to judges 
and prosecutors, they may be funded under Section 410, which provides 
substantially increased funds from previous years. In response to 
GHSA's comment, the agency has revised the rule to require that the 
State submit a list of impaired-driving-related educational programs 
offered by each position to ensure that States may use Section 410 
funds for these activities. As almost all States already make use of an 
SJE position and do so without regard to this criterion, we do not 
believe that funding impediments are a significant issue.
    The agency received a number of comments related to the court 
monitoring program. GHSA requested that the regulation more clearly 
define the court monitoring program, and asked whether a State tracking 
system that recorded the offender's arrest, conviction and disposition 
of the charges would qualify. COSCA thought that this program lacked 
explicit and defined performance criteria, and requested that the 
agency revise the terminology. NTLC was concerned that confusion would 
result between this criterion and other agency grant programs that 
involve court monitoring.
    A significant goal of the prosecution and adjudication outreach 
program criterion is to inform States about how their courts treat 
impaired drivers. With the information collected, States should be able 
to identify jurisdictions that do not fully prosecute and adjudicate 
impaired drivers. To comply under the proposal, a State must collect 
data from at least 50 percent of its courts (consistent with the 
statutory requirement that a majority of the courts be covered) and the 
data collected must include the original charges filed against a 
defendant, the final charges presented by the prosecutor, and the 
disposition of the charges or the sentence provided. The appropriate 
method for collecting this information is not detailed in the rule and 
is left to the discretion of the individual States. The compliance 
requirements are straightforward and the agency does not believe that 
additional performance criteria need to be specified. The requirements 
of this criterion are separate from any other grant program of the 
agency, and there is no reason to believe that confusion might result.
3. BAC Testing Program
    To qualify for a grant based on this criterion, SAFETEA-LU requires 
a State to have:

    An effective system for increasing from the previous year the 
rate of blood alcohol concentration testing of motor vehicle drivers 
involved in fatal crashes.

    Under the NPRM, to demonstrate compliance with this criterion, a 
State would be required to increase its rate of blood alcohol testing 
from one year to the next. States under the testing average of 50 
percent would be required to experience an increase of 5 percent each 
year and States over this average would be required to experience an 
increase of 5 percent of the untested drivers in the State. To 
determine compliance, the agency proposed to use FARS data. The agency 
did not specify particular elements of an effective system, choosing 
instead to rely on data as a measure of compliance with this criterion.
    The Joint State Commenters asserted that the statute merely 
requires a State to have a ``system'' for increasing BAC testing, 
without the need to actually achieve increases, and that even decreases 
should be acceptable provided a system is in place. Alternatively, The 
Joint State Commenters took issue with the agency's requirement that 
States achieve a five percent increase in BAC testing each year to 
achieve compliance, asserting that the agency was not free to disregard 
small increases based on the statutory language. The Joint State 
Commenters requested that the agency count any percentage increase in 
BAC testing for purposes of compliance.
    With respect to the first argument, we disagree. SAFETEA-LU 
requires a State to implement an ``effective'' system for increasing 
BAC testing. A system that does not produce increases or that results 
in decreases is not an ``effective'' system under the statute. We 
address the assertion that a system for increasing BAC, alone, should 
be sufficient in more detail in our response to comments from 
Advocates, below.
    With respect to the second argument, we acknowledge that the 
statute does not specify the amount of increase required. In light of 
the comment, we have reviewed the FARS data that forms the basis for 
these calculations and determined that a one percent increase would be 
acceptable to meet the minimum intent of the statute. Amounts below one 
percent are not commensurate with a system that is ``effective.'' We 
have revised and simplified the rule to require that all States, 
regardless of BAC testing level, achieve a one percent increase in the 
BAC testing rate over the previous year to be compliant with the 
criterion. We have also removed from the rule the conversion rate 
approach that would have required smaller incremental increases for 
States with BAC testing above 50 percent, in view of the overall 
decrease in the requirement.
    To ensure uniform treatment of all States and consistency in the 
determination of BAC increases under this revised approach, the agency 
will make necessary calculations based on the final FARS data, 
determine each State's compliance, and notify the States each year. To 
accommodate this, we have made two changes to the proposed rule. First, 
we have included language indicating that the BAC rate determinations 
will be made by the agency. Second, we have removed the requirement for 
a State to certify that it has achieved the required BAC rate to 
demonstrate compliance, since the agency will make that determination. 
In its place, we have substituted a requirement for a simple statement 
that the State intends to apply on the basis of achieving the required 
BAC testing rate increase.
    Wisconsin questioned the agency's requirement that States with BAC 
testing above the national average achieve additional increases. 
SAFETEA-LU amended the previous statutory requirement that allowed a 
State to comply with a testing rate equal to or above the national 
average. The new statutory language requires States to have systems 
that increase BAC testing rates over the previous year regardless of 
whether the rate exceeds the national average.
    Minnesota stated that compliance would be much more difficult for 
states that already had a very high testing percentage, and recommended 
that any State testing above 85 percent be deemed automatically in 
compliance. The agency's revised approach under the final rule requires 
a one percent increase each year regardless of the State's testing 
average. For States with high testing rates, we agree that further 
increases may be more difficult to achieve. However, under a one 
percent increase requirement, States with higher testing levels need 
only report a small number of additional BAC tests each year. Even in 
States with the highest testing levels, we believe that this is a 
manageable requirement. We note that Minnesota's suggestion to cap 
required increases at 85 percent, which we do not adopt, would not 
impact any State, based on the most currently available BAC testing 
data. The highest reported

[[Page 20562]]

testing rate for any State is just over 80 percent.
    Advocates believe that the agency's regulation should provide 
system goals for States in addition to the performance requirements. At 
a minimum, according to Advocates, States should be required to enact 
and maintain laws that require mandatory BAC testing both for drivers 
who are killed in a fatal crash and for those who survive a crash in 
which a fatality occurs.
    For the first two years of the Section 410 program under TEA-21, 
the agency allowed States to achieve compliance with a limited set of 
system goals. These goals included enacting laws that mandate testing 
or conducting annual statewide workshops that promote good testing and 
reporting practices. In spite of this approach, the national average 
for BAC testing remained relatively constant under TEA-21.
    We understand, however, that determining compliance purely on 
achievement of performance goals may dissuade States from attempting 
any activities that achieve BAC testing increases. For this reason, in 
response to Advocates' comment, the agency has revised the proposal to 
include an alternative requirement (but not a requirement that operates 
in addition to the performance requirement, as Advocates suggests). A 
State may achieve compliance in FY 2006 and FY 2007 by submitting a 
plan for increasing its BAC testing rate. The plan must consist of 
approaches that the State will take under the grant to achieve an 
increase in BAC testing that would meet the performance requirements of 
the criterion. To achieve compliance, the plan must include a 
description of each approach, including how it will be implemented and 
the expected outcome as a result of implementation. Approaches may 
include, as Advocates suggests, the enactment of a law mandating BAC 
testing. A State may also include approaches that resolve failures in 
the reporting of BAC test results. Statewide symposiums and workshops 
may be used as long as they bring together key officials in the State 
such as law enforcement officials, prosecutors, hospital officials, 
medical examiners, coroners, physicians, and judges and discuss the 
medical, ethical and legal impediments to increasing BAC testing.
    After FY 2007, a State may no longer use the planning requirement 
to satisfy this criterion, unless it has a law in place that requires 
the testing of drivers in all fatal crashes--it must instead meet the 
performance requirement of this criterion. The planning requirement 
will be available to States in these later years of the program, in 
lieu of the performance requirement, only if they also have a law 
mandating the testing of all drivers in all fatal crashes. A compliant 
law must require testing in all fatal crashes and may not condition the 
use of tests on the establishment of probable cause. We have amended 
the proposal to provide for this alternative. We believe that the 
performance requirement and the planning requirement alternative, taken 
together, strike the appropriate balance between the need for actual 
increases in testing and the recognition that an effective system 
requires time to affect the testing numbers. We have also amended the 
rule to require that States complying with the planning requirement in 
subsequent years must also submit information demonstrating that the 
plan was effectively implemented and an updated plan for increasing BAC 
testing.
    Wisconsin stated that breath testing is legally equivalent to blood 
testing and asked whether the agency considered this in its approach. 
The agency's proposal accommodates Wisconsin's concern. It continues 
the approach taken in TEA-21 that defines BAC to mean grams of alcohol 
per deciliter or 100 milliliters of blood or grams of alcohol per 210 
liters of breath.
4. High Risk Drivers Program
    To qualify for a grant based on this criterion, SAFETEA-LU requires 
a State to have:

    A law that establishes stronger sanctions or additional 
penalties for individuals convicted of operating a motor vehicle 
while under the influence of alcohol whose blood alcohol 
concentration is 0.15 percent or more than for individuals convicted 
of the same offense but with a lower blood alcohol concentration. 
For purposes of this paragraph, ``additional penalties'' includes--
    (A) A 1-year suspension of a driver's license, but with the 
individual whose license is suspended becoming eligible after 45 
days of such suspension to obtain a provisional driver's license 
that would permit the individual to drive--
    (i) Only to and from the individual's place of employment or 
school; and
    (ii) Only in an automobile equipped with a certified alcohol 
ignition interlock device; and
    (B) A mandatory assessment by a certified substance abuse 
official of whether the individual has an alcohol abuse problem with 
possible referral to counseling if the official determines that such 
a referral is appropriate.

    The agency's proposal provides that a State suspend the license of 
an individual convicted of impaired driving with a blood alcohol 
concentration of 0.15 or higher for one year. The proposal provides 
that, after 45 days, the State may allow the individual to receive a 
restricted license that would permit the use of a vehicle equipped with 
an ignition interlock. Driving would be restricted to places of 
employment, school or treatment. A qualifying State must also require 
that offenders be subject to a mandatory assessment by certified 
substance abuse officials.
    National Interlock Systems, Inc. expressed concern about language 
in the preamble to the NPRM directing the State's use of ignition 
interlocks that meet the agency's performance specifications for 
ignition interlocks (57 FR 11772). National stated that any update to 
the agency's specifications would impose a significant financial burden 
on the interlock industry unless they were phased-in over time. The 
agency's performance specifications are provided as guidance, and 
States have discretion to adopt the specifications or develop their 
own. The regulatory language does not impose a requirement to use the 
agency's specifications. As a matter of sound practice, however, we 
recommend that States adopt these specifications. The commenter's 
concerns about phase-in requirements under performance specifications 
are outside the scope of this action, and should be addressed to 
efforts under those specifications.
    LifeSafer Interlock, Inc. asserted that the requirement that an 
offender install an ignition interlock in every vehicle owned and every 
vehicle operated ``will only serve to economically force most offenders 
to opt out'' of the ignition interlock program and thereby limit 
overall use of interlocks. The agency explained that its reason for 
imposing the requirement was to ensure that driving restrictions are 
not easily circumvented. LifeSafer's own comment acknowledges that 
``the majority of the recidivism while an interlock is installed is a 
result of the use of non-interlock equipped vehicles.'' While there are 
good and practicable reasons for requiring installation of interlocks 
in all vehicles, the statutory language identifies the interlock 
requirement as a sanction that attaches to the individual's license. 
Accordingly, the agency has revised the proposal to remove the 
requirement that an offender install interlocks in all vehicles owned 
and all vehicles operated. We are retaining, without change, the 
requirement that a State provide a license that restricts the offender 
to driving only vehicles that are equipped with interlocks.
    LifeSafer requests that the agency include an exemption to the 
interlock requirement for employer-owned vehicles. This request appears 
to be based on the statutory language that

[[Page 20563]]

restricts an offender to an interlocked-equipped vehicle when driving 
to places of employment. The commenter reasons that the language does 
not similarly restrict an offender's use of vehicles ``while in the 
course employment,'' and that therefore the intent of the statute is 
not to force employers to install ignition interlocks. We agree that 
the statute does not require employers to install interlocks in their 
vehicles. However, the statute provides clear language that the 
offender is permitted to drive ``only in an automobile equipped with a 
certified alcohol ignition interlock device.'' On this basis, the 
agency declines to revise the rulemaking to add a specific exemption 
for employer vehicles.
    National and LifeSafer both noted that the agency's rule makes no 
provision for an offender to drive to an interlock service facility. We 
agree that travel to an interlock service facility is an inherent part 
of operating an interlock program, and have revised the proposal to 
allow for this.
    The agency received one comment from one organization regarding the 
statutory requirement to provide alcohol assessments to high-risk 
offenders. GHSA recommended that the agency clarify the use of a 
certified substance abuse official and provide additional information 
regarding proper certification and training of these individuals. GHSA 
also requested that the agency provide examples of effective assessment 
tools.
    The agency's proposal requires that a State use a certified 
substance abuse official to perform an alcohol assessment of a high BAC 
offender, but does not mandate the education or training background of 
these individuals or the process by which these individuals receive 
approval from the State to conduct alcohol assessments. The licensing 
of professionals is traditionally a function of the State and we see no 
reason to vary that approach in this rule. Most States already provide 
alcohol assessments to offenders and have developed the necessary 
infrastructure to implement these programs. A State is free to define a 
certification process, if it does not already have one, and to decide 
what level of education or training background a substance abuse 
official must have.
    Assessment tools form the basis for appropriate treatment 
sentencing and the reduction of impaired driving recidivism. States 
have discretion to decide what type of assessment tools to use, and the 
agency takes no position about the relative value of any assessment 
method. However, in response to GHSA's query, the Addiction Severity 
Index (ASI) and the Structured Clinical Interview for Diagnosis (SCID) 
are two of the more well-known assessment tools. To minimize the 
effects of deficiencies in any one tool, we advocate the use of a 
combination of assessment tools.
5. Alcohol Rehabilitation or DWI Court Program
    To qualify for a grant based on this criterion, SAFETEA-LU requires 
a State to demonstrate:

    A program for effective inpatient and outpatient alcohol 
rehabilitation based on mandatory assessment and appropriate 
treatment for repeat offenders or a program to refer impaired 
driving cases to courts that specialize in driving while impaired 
cases that emphasize the close supervision of high-risk offenders.

    Under the agency's proposal, to demonstrate compliance with this 
criterion, the State would be required to institute either: An 
effective alcohol rehabilitation program that consists of mandatory 
assessment and treatment for repeat offenders, a statewide tracking 
system that monitors the progress of repeat offenders through 
treatment, and educational opportunities provided to court 
professionals that cover treatment approaches and sanctioning 
techniques; or a DWI court that abides by the Ten Guiding Principles of 
DWI Courts, as established by the National Drug Court Institute, and an 
increase of one DWI court each subsequent year of the program.
    The agency received one comment regarding the proposed components 
of an effective rehabilitation program. The Joint State Commenters 
stated that the requirement to provide educational opportunities to 
court professionals was not referenced in the statute and that such a 
requirement should not be considered essential for an effective 
rehabilitation program. The agency believes that treatment sentencing 
is an important component of rehabilitating repeat offenders. We 
included the education requirement because court professionals do not 
always understand how to use the assessment information they are 
provided to apply the most effective treatment sanction. We 
acknowledge, however, that the requirement is somewhat redundant of the 
prosecution and adjudication outreach criterion listed above and that a 
training program conducted once a year is likely to result in only a 
marginal increase in the overall ability to use assessments. In view of 
the comment, we are also concerned that imposing this requirement may 
dissuade States from attempting compliance with the other more 
important components of the program. Although States are encouraged to 
provide educational opportunities to court professionals regarding the 
use of assessments and treatments, the agency has revised the rule to 
remove the requirement for an educational component.
    The Joint State Commenters asserted that States should be free to 
set up their own DWI courts without having to meet the Ten Guiding 
Principles of DWI Courts. These commenters request that, at a minimum, 
the agency accept State courts that are in ``substantial conformity'' 
with the principles.
    The Ten Guiding Principles of DWI Courts present a basis to 
understand the operation of DWI courts and to differentiate their use 
from general docket courts. Under the principles, DWI courts are 
required to target a population of offenders for the court; provide a 
clinical assessment and treatment plan for each offender; supervise the 
offender through treatment; forge partnerships with the agencies and 
organizations involved; develop case management strategies; address 
transportation issues; and evaluate outcomes and ensure that the 
program is sustainable. In addition, a judge takes responsibility for 
operation of the court. Many of these concepts are inherent to the 
operation of courts generally (e.g., judicial leadership, cases managed 
with the involvement of all parties) and present no difficulty for 
State compliance. Other concepts are essential to operation of a 
treatment-based court (e.g., providing treatments and assessments and 
monitoring offenders through treatment). All of them are fundamentally 
important to the proper operation of the court and none is 
impracticable or onerous. Consequently, the agency declines to take an 
approach that would allow a State to select among them. Allowing a 
court to stray from these principles provides no assurance that 
offenders will be processed using a treatment-based court.
    The Joint State Commenters and GHSA commented that the statute does 
not support a requirement that a State increase the use of DWI courts 
each year of the program. GHSA further stated that the agency's 
proposed increase of one DWI court each year is not tailored to meet 
the needs of individual States.
    For the first time under Section 410, States are eligible to 
receive grant funds based on using certain treatment methods. DWI 
courts represent a relatively new approach to sanctioning and treating 
repeat offenders. Although based on the noted success of drug courts, 
which are used extensively by

[[Page 20564]]

all States, most States have yet to fully embrace the use of DWI courts 
to combat impaired driving. The agency's proposal intended to foster 
the development and use of DWI courts and set an achievable standard 
for all States. The soundness of this approach is confirmed by a recent 
survey of the National Drug Court Institute, documenting the number of 
drug courts operating in each State. Drug courts are functionally 
similar to DWI courts and, as the survey documents, even small States, 
determined by either geography or population, already make use of four 
or more of these courts. Specific examples from the survey include the 
States of Wyoming and Rhode Island, for example, which use 25 and 8 
drug courts, respectively.
    The commenters are correct that larger States, because of larger 
offender populations, may require the use of more courts. The agency's 
proposal in no way prevents a State from establishing more courts than 
the minimum specified. We do not believe, however, that the agency's 
proposal disadvantages smaller States at the required compliance 
levels.
    The statute requires the development of a program to process high-
risk offenders through DWI courts. Under the agency's proposal, a State 
achieves initial compliance with the development and implementation of 
one DWI court. The use of one court provides a minimal level of traffic 
safety benefit in a State of any size, given the limited amount of 
offenders that treatment courts process in a year. The requirement is 
not onerous, and we do not agree that the statutory intent is satisfied 
by a static effort that allows a State to receive grant funds year 
after year without further development of a program that uses courts.
    In view of the comments, however, the agency has made two revisions 
to the proposal. In the NPRM, the number of courts required was a fixed 
number tied to the fiscal year of application (one court in FY 2006, 
two courts in FY 2007, and one additional court each year thereafter). 
The agency has revised the rule to allow the use of a minimum one court 
for initial compliance, regardless of the fiscal year of the 
application, a minimum of two courts for the second year of compliance, 
three courts for third year of compliance, and four courts for the 
fourth year of compliance. The revised approach removes any 
disincentive for a State that wishes to apply under this requirement, 
for the first time, in later years of the program. States that have 
four DWI courts are not required to demonstrate additional increases to 
remain compliant. We have also broadened the definition of a DWI court 
to allow a State to count toward compliance the use of hybrid courts 
that process both drug and high-risk DWI offenders.
6. Underage Drinking Prevention Program
    To qualify for a grant based on this criterion, SAFETEA-LU requires 
a State to demonstrate:

    An effective strategy, as determined by the Secretary, for 
preventing operators of motor vehicles under age 21 from obtaining 
alcoholic beverages and for preventing persons from making alcoholic 
beverages available to individuals under age 21. Such a strategy may 
include--
    (A) The issuance of tamper-resistant drivers' licenses to 
individuals under age 21 that are easily distinguishable in 
appearance from drivers' licenses issued to individuals age 21 or 
older; and
    (B) A program provided by a nonprofit organization for training 
point of sale personnel concerning, at a minimum--
    (i) The clinical effects of alcohol;
    (ii) Methods of preventing second party sales of alcohol;
    (iii) Recognizing signs of intoxication;
    (iv) Methods to prevent underage drinking; and
    (v) Federal, State, and local laws that are relevant to such 
personnel; and
    (C) Having a law in effect that creates a 0.02 percent blood 
alcohol content limit for drivers under 21 years old.

    Under the agency's proposal, to demonstrate compliance with this 
criterion, the State would be required to issue a tamper-resistant 
license to persons under the age of 21; conduct training through a 
nonprofit or public organization for alcohol beverage retailers and 
servers concerning the clinical effects of alcohol, methods of 
preventing second-party sales of alcohol, recognizing the signs of 
intoxication, methods to prevent underage drinking, and the relevant 
laws that apply to retailers and servers, and provide procedures that 
ensure program attendance; have a law that creates a blood alcohol 
limit of no greater than 0.02 percent for drivers under age 21; develop 
an enforcement plan that focuses on underage drivers' access to 
alcohol; and develop a communications strategy supporting the 
enforcement plan and includes media efforts and peer education.
    The agency received several comments related to the training 
program for point-of-sale personnel. Wisconsin asked whether the 
training requirement applied to convenience stores and whether there is 
a standard curriculum for the course. Wisconsin also asked for 
information regarding the programs currently provided in other States. 
Minnesota stated that it was unclear how a State would be able to 
demonstrate program attendance for point-of-sale personnel.
    Under the agency's proposal, compliant programs must provide 
training to all alcohol beverage retailers and servers. If a 
convenience store sells alcohol, then it must be included in the 
State's training program. The agency has not devised any required 
standard curriculum that must be used or cataloged the types of 
programs that States have used to comply with this requirement in the 
past. In response to Wisconsin's concerns, States wishing to receive 
more information regarding the practice of a particular State should 
contact the State directly.
    The agency's proposal requires States to have procedures in place 
that ensure program attendance. Therefore, States must implement 
procedures that ensure every establishment retailing or serving alcohol 
receives the proper training. The agency did not intend, in the 
proposal, to require States to have procedures that track attendance by 
every individual employee of a retailer or to require proof of 
attendance in order to comply with the criterion. We have revised the 
rule to clarify these points. However, the State must provide a copy of 
the procedures it has put in place to ensure attendance.
    The agency received two comments concerning point-of-sale training. 
The TAM commenters criticized the proposal's inclusion of public 
organizations as appropriate providers of the training, arguing that 
the term ``public organizations'' was omitted intentionally during the 
drafting of the statute to prevent local governments from establishing 
programs that might compete with non-profit programs. According to TAM, 
if public organizations are included, State and local governments will 
be forced to partner with a nonprofit organization in order to 
standardize point-of-sale training efforts nationwide. In contrast, 
Minnesota questioned why the agency's proposal limited point-of-sale 
training providers to only nonprofit or public organizations.
    SAFETEA-LU specifies that the Secretary has discretion to devise 
the elements of an effective strategy that States adopt to confront the 
problem of underage drinking. While the statute makes specific 
reference to non-profit organizations, we disagree with TAM that its 
failure to reference public organizations precludes their 
participation. Under the predecessor Section 410 program, public 
organizations were considered appropriate providers of point-of-sale 
training. The agency included the term

[[Page 20565]]

public organization in its proposal to make clear that a State may 
maintain compliance with this requirement using its own previously 
developed programs and training structures. Nothing in the statutory 
language suggests that Congress intended to dismantle these existing 
efforts. However, guided by the statutory language, the agency is not 
adopting Minnesota's suggestion that we further expand this group.
    Several commenters questioned the agency's inclusion of peer 
education as a component of a compliant enforcement and communications 
strategy. GHSA objected to the requirement on grounds that peer 
education has not been proven effective and that its impact is 
questionable. Minnesota commented that it was not aware of any strong 
research that demonstrates peer education to be effective in altering 
behavior.
    Peer education is a relatively new approach that uses youth-to-
youth communication to highlight the problems of underage drinking. 
While we believe that studies are beginning to demonstrate the 
effectiveness of this approach, we agree with the commenters that 
further study and development should take place before making it a 
requirement of the Section 410 program. The agency has revised the rule 
to remove the requirement.
    The Joint State Commenters argued against including any other 
program components under this criterion that are not expressly provided 
for in the statute, stating that they add costs to a criterion that is 
already expensive to meet and would impede State qualification for 
grants.
    The underage drinking prevention program is not a new criterion 
under SAFETEA-LU. Elements of the agency's proposal continue 
requirements that were mandated by the agency under the predecessor 
Section 410 program. With the removal of the peer education component 
(discussed above), the program is nearly identical to the program that 
States complied with to receive a grant in FY 2005. Point-of-sale 
training, tamper proof licenses for individuals under the age of 21, an 
enforcement program and communication effort are not new requirements. 
The only changes from the previous requirements include a zero 
tolerance law that all 50 States (with the exception of Puerto Rico) 
already have and a shift in the communications strategy from providing 
general information on underage drinking to a program that specifically 
supports the enforcement of underage drinking laws. Thirty-three out of 
thirty-four States receiving Section 410 grants in FY 2005 complied 
with the criterion (including Idaho and North Dakota--2 of the 5 Joint 
State Commenters). (We note that in FY 2004, South Dakota, another of 
the Joint State Commenters, met the criterion as well). Considering 
that the amount of funds has greatly increased under SAFETEA-LU and 
that nearly all States that received awards complied with a 
substantially similar criterion, we do not agree with the Joint State 
Commenters that the agency's approach would impose undue costs on the 
States or impede State qualification for grants.
7. Administrative License Suspension or Revocation System
    To qualify for a grant based on this criterion, SAFETEA-LU requires 
a State to demonstrate:

    An administrative driver's license suspension or revocation 
system for individuals who operate motor vehicles while under the 
influence of alcohol that requires that--
    (A) In the case of an individual who, in any 5-year period 
beginning after the date of enactment of the Transportation Equity 
Act for the 21st Century, is determined on the basis of a chemical 
test to have been operating a motor vehicle while under the 
influence of alcohol or is determined to have refused to submit to 
such a test as proposed by a law enforcement officer, the State 
agency responsible for administering drivers' licenses, upon receipt 
of the report of the law enforcement officer--
    (i) Suspend the driver's license of such individual for a period 
of not less than 90 days if such individual is a first offender in 
such 5-year period; except that under such suspension an individual 
may operate a motor vehicle, after the 15-day period beginning on 
the date of the suspension, to and from employment, school, or an 
alcohol treatment program if an ignition interlock device is 
installed on each of the motor vehicles owned or operated, or both, 
by the individual; and
    (ii) Suspend the driver's license of such individual for a 
period of not less than 1 year, or revoke such license, if such 
individual is a repeat offender in such 5-year period; except that 
such individual [may be allowed] to operate a motor vehicle, after 
the 45-day period beginning on the date of the suspension or 
revocation, to and from employment, school, or an alcohol treatment 
program if an ignition interlock device is installed on each of the 
motor vehicles owned or operated, or both, by the individual; and
    (B) The suspension and revocation referred to under clause (i) 
take effect not later than 30 days after the date on which the 
individual refused to submit to a chemical test or received notice 
of having been determined to be driving under the influence of 
alcohol, in accordance with the procedures of the State.

    Under the agency's proposal, to demonstrate compliance with this 
criterion, the State would be required to provide that a BAC test 
refusal or failure would result in a 90-day license suspension for 
first offenders and a 1-year license suspension for second or 
subsequent offenders, and that suspensions would take effect within 30 
days. The proposal would have permitted the State to provide limited 
driving privileges after 15 days to first offenders and after 45 days 
to second or subsequent offenders, if an ignition interlock device is 
installed on all vehicles owned and all vehicles operated by the 
offender and the offender's driving privileges are restricted to places 
of employment, school or treatment.
    The agency received one comment regarding its approach to permit, 
but not require, States to grant interlock-restricted driving 
privileges. National Interlock Systems, Inc. commented that the 
statutory language requires the States to offer interlock restricted 
driving privileges in conjunction with this criterion. National cites 
the statutory language providing that an ``individual may operate a 
motor vehicle * * * if an ignition interlock device is installed'' to 
support its argument.
    We disagree. This statutory language is permissive and allows the 
State to elect to offer interlocks to reduce the period of a license 
suspension an offender would otherwise face. Absent an interlock 
provision, the statute would simply require a full license suspension 
period to be served. There is no indication that Congress intended to 
mandate the use of interlocks in order for a State to comply with the 
criterion. Such an approach would likely render noncompliant many State 
programs that complied with nearly identical language under TEA-21.
    National Interlock Systems, Inc. and LifeSafer Interlock, Inc. 
asserted that the requirements of this criterion conflict with those of 
the grant program the agency administers under 23 U.S.C. 164. The 
Section 410 program requires the State to apply an administrative 
license sanction to an offender as a result of BAC test refusals or 
failures. The Section 164 program requires the State to suspend the 
license of an individual for multiple impaired driving convictions. 
Because these programs apply to different classes of offenders, there 
is no conflict that would require a State to trade compliance in one 
grant program for another. The administrative license sanctions of the 
Section 410 program will apply up to the point the individual is 
convicted of impaired driving. The term ``repeat offender'' that 
appears in each grant program has been

[[Page 20566]]

defined differently to make these distinctions clear.
    The agency has made two revisions to this criterion. First, based 
on the discussion under the High-Risk Drivers Program (see Section 
V.B.4), the agency has revised the rule to remove the requirement that 
ignition interlocks must be installed in all vehicles owned and all 
vehicles operated by the offender, because similar statutory language 
applies to this criterion. The State is required instead to issue a 
restricted license that limits the offender to operating only 
interlocked vehicles. Second, the agency has revised the criterion to 
allow an offender to drive to an interlock service facility as a 
condition of the restricted license.
8. Self-Sustaining Impaired Driving Prevention Program
    To qualify for a grant based on this criterion, SAFETEA-LU requires 
a State to have:

    A program under which a significant portion of the fines or 
surcharges collected from individuals who are fined for operating a 
motor vehicle while under the influence of alcohol are returned to 
communities for comprehensive programs for the prevention of 
impaired driving.

    The agency's proposal provides that a State may qualify for a grant 
based on this criterion if it returns at least 90 percent of the fines 
or surcharges collected to communities for comprehensive impaired 
driving programs.
    GHSA and the Joint State Commenters objected to this requirement. 
The Joint State Commenters believed that returning 50 percent should be 
considered a significant amount and the agency should revise the 
regulation accordingly. GHSA stated that the intent of the requirement 
is to encourage the development of self-sustaining programs and not to 
dissuade States from compliance because requirements are set too high. 
GHSA recommended that the agency significantly lower the level required 
for a qualifying program or, alternatively, that it continue the 
approach taken under the predecessor Section 410 program.
    As the agency explained in the NPRM, the predecessor Section 410 
program required that a State return the ``actual'' fines or surcharges 
collected in order to achieve compliance. That approach required 100 
percent of the amounts collected to be returned to communities for 
comprehensive programs. The agency's proposal under SAFETEA-LU is more 
generous, allowing a State to divert 10 percent in order to cover 
planning and administration costs. We do not believe that additional 
lowering of the amount returned would encourage more programs to become 
self-sustaining. It simply would allow more programs to be determined 
compliant that return less fines or surcharges. Programs that do not 
return collected amounts to the collecting communities are not self-
sustaining. The agency declines to change this requirement.
    GHSA's assertion that the agency ``does not fully support this 
statutory requirement'' is inaccurate. In support of this assertion, 
GHSA points to the agency's statement in the preamble to the NPRM that 
some States may not be able to meet the requirement, but that would not 
necessarily preclude a State from receiving a grant. This statement 
simply acknowledges that these States may seek to achieve compliance 
using other criteria. The context for this statement, as noted in the 
NPRM, is that some States are prohibited either by their Constitution 
or by State law from having dedicated non-discretionary uses of fines 
and penalties. With these legal limitations in place, regardless of the 
percentage selected, a State would be unable to comply with the 
criterion, but is not precluded from seeking to comply with other 
criteria.
    The agency wishes to make clear that, under the proposal, States 
may qualify by returning at least 90 percent of the fines or at least 
90 percent of surcharges collected from impaired drivers. Compliance 
does not require that a State base the amount returned on the total of 
all fines and surcharges levied against an impaired driver. States may 
establish surcharges in law and return at least 90 percent of the 
surcharge amount collected in order to comply with the criterion, 
regardless of other fines or penalties that may apply to an offender.

C. Comments Regarding Low and High Fatality Rate States

    The agency received one comment concerning the separate grants 
available to high fatality rate States. Advocates commented that States 
in the high fatality rate category should not automatically receive 15 
percent of the total amount available each year under the Section 410 
program. Advocates further stated that the agency should use its 
discretion to award less to States that have done a poor job of 
reducing the impaired driving fatality rate.
    SAFETEA-LU provides high fatality rate States with a limited amount 
of funding to be used to address impaired driving issues. These grants 
are distinct from the basic incentive funding provided under Section 
410 and subject to certain specific requirements. At least 50 percent 
of the funding must be used to conduct Statewide law enforcement aimed 
at impaired driving. Additionally, the State must submit and the agency 
must approve a plan detailing proposed grant expenditures before any 
funds are provided. To the extent that Advocates' comment suggests that 
the 15 percent level is too high for States with high fatality rates, 
we disagree. Rather, the important point is that the funds be used 
effectively to improve the statistics in these States. The agency 
intends to review carefully the plans submitted by high fatality rate 
States to ensure the sound expenditure of funds to address the fatality 
problems in the State. Funding for these States will be subject to all 
applicable statutory restrictions. We have restated in the regulation 
the statutory restriction that no one State is to receive more than 30 
percent of the total amount provided for high fatality rate States. 
Just as with the other grants under this program, the agency will 
monitor the use of the funds to ensure appropriate use.
    The agency received two comments regarding the availability of FARS 
data to determine high and low fatality rate State status. Minnesota 
stated that any delay in the publishing of FARS data would create a 
disincentive for States to seek grants based on performance. GHSA 
commented that late publication of FARS data would preclude States from 
receiving performance grants. Both commenters urged the agency to 
revert to prior year FARS data should there be any delay. Eligibility 
for performance grants is determined by the most recent final FARS data 
available at the time of the award. The statutory language does not 
permit the agency to use older data should more current data become 
available before award. The agency intends to make the final FARS data 
available in early June and there is no reason to indicate otherwise at 
this time. If there is a delay in publicizing particular data, 
performance grants would not be jeopardized. These grants are 
determined using the most recently available data at the time of award 
and would remain available to all qualifying States.

D. Comments Regarding Administrative Issues

    The agency received one comment regarding the general 
administration of the grant program. GHSA objected to the requirement 
that States submit applications in August for grants in the same fiscal 
year, stating that such an approach is contrary to the intent of the 
consolidated application process required in statute and will interfere 
with State planning processes. The agency believes that setting the

[[Page 20567]]

application deadline earlier under the program would interfere with 
State legislative efforts that may be necessary for compliance. Absent 
a statutory deadline, the agency is unwilling to decrease the States' 
flexibility in this regard.
    We will continue to work toward the goal of consolidating the 
agency's grant opportunities into one application. However, under the 
Section 410 program, an early application deadline is not currently 
feasible and the agency is continuing the August deadline for 
applications established under TEA-21.
    We received no other comments regarding grant administration 
issues. Therefore, those provisions of the agency's proposal are 
adopted without change.

VI. Statutory Basis for This Action

    This final rule implements changes to the grant program under 23 
U.S.C. 410 as a result of amendments made by Section 2007 of the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
For Users (SAFETEA-LU) (Pub. L. 109-59).

VII. Regulatory Analyses and Notices

A. Executive Order 12866 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 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 of 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.
    We have considered the impact of this rulemaking action under 
Executive Order 12866 and the Department of Transportation's regulatory 
policies and procedures. This rulemaking document was not reviewed by 
the Office of Management and Budget under E.O. 12866, ``Regulatory 
Planning and Review.'' The rulemaking action is also not considered 
significant under the Department's Regulatory Policies and Procedures 
(44 FR 11034; February 26, 1979).
    For the following reasons, NHTSA concludes that this final rule 
will not have any quantifiable cost effect. The rulemaking action has 
no impact on the total amount of grant funds distributed and thus no 
impact on the national economy. All grant funds provided under Section 
410 will be distributed each fiscal year among qualifying States 
(regardless of the number of States that qualify), using a statutorily-
specified formula. The final rule does not alter this approach.
    The rulemaking action also does not affect amounts over the 
significance threshold of $100 million each year. The final rule sets 
forth application procedures and showings to be made to be eligible for 
a grant. Under the statute, low fatality rate States will receive 
grants by direct operation of the statute without the need to formally 
submit a grant application. The agency estimates that these grants to 
low fatality rate States will account for more than 35 percent of the 
Section 410 funding provided annually under SAFETEA-LU. The funds to be 
distributed under the application procedures provided for in the final 
rule will therefore be well below the annual threshold of $100 million.
    Because the economic effects of this final rule are so minimal, no 
further regulatory evaluation is necessary.

B. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
The Small Business Administration's regulations at 13 CFR Part 121 
define a small business, in part, as a business entity ``which operates 
primarily within the United States.'' (13 CFR 121.105(a)). No 
regulatory flexibility analysis is required if the head of an agency 
certifies the rulemaking action will not have a significant economic 
impact on a substantial number of small entities. SBREFA amended the 
Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that an action will not 
have a significant economic impact on a substantial number of small 
entities.
    NHTSA has considered the effects of this proposal under the 
Regulatory Flexibility Act. States are the recipients of funds awarded 
under the Section 410 program and they are not considered to be small 
entities under the Regulatory Flexibility Act. Therefore, I certify 
that this rulemaking action will not have a significant economic impact 
on a substantial number of small entities.

C. Executive Order 13132 (Federalism)

    Executive Order 13132, ``Federalism'' (64 FR 43255, August 10, 
1999), requires NHTSA 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'' are 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 
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 or the agency consults with 
State and local governments in the process of developing the proposed 
regulation. The agency also may not issue a regulation with Federalism 
implications that preempts a State law without consulting with State 
and local officials.
    The agency has analyzed this rulemaking action in accordance with 
the principles and criteria set forth in Executive Order 13132 and has 
determined that the final rule does not have sufficient Federalism 
implications to warrant consultation with State and local officials or 
the preparation of a Federalism summary impact statement. Moreover, the 
final rule will not preempt any State law or regulation or affect the 
ability of States to discharge traditional State government functions.

D. Executive Order 12988 (Civil Justice Reform)

    This final rule does not have any preemptive or retroactive effect. 
This action meets applicable standards in sections 3(a) and 3(b)(2) of 
Executive

[[Page 20568]]

Order 12988, Civil Justice Reform, to minimize litigation, eliminate 
ambiguity and reduce burden.

E. Paperwork Reduction Act

    There are reporting requirements contained in the final rule that 
are considered to be information collection requirements, as that term 
is defined by the Office of Management and Budget (OMB) in 5 CFR Part 
1320. Accordingly, these requirements have been submitted previously to 
and approved by OMB, pursuant to the Paperwork Reduction Act (44 U.S.C. 
3501, et seq.) These requirements have been approved under OMB No. 
2127-0501 through June 30, 2006. Although SAFETEA-LU revises the 
structure of the grant program under Section 410, the revision does not 
result in an increase in the amount of information States must provide 
to demonstrate compliance with the criteria.

F. Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
requires federal agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final 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 more 
than $100 million annually (adjusted for inflation with a base year of 
1995 (about $118 million in 2004 dollars)). This rulemaking action does 
not meet the definition of a Federal mandate, because the resulting 
annual State expenditures will not exceed the $100 million threshold. 
The program is voluntary and States that choose to apply and qualify 
will receive grant funds.

G. National Environmental Policy Act

    NHTSA has reviewed this rulemaking action for the purposes of the 
National Environmental Policy Act (42 U.S.C. 4321, et seq.) and has 
determined that it will not have a significant impact on the quality of 
the human environment.

H. Executive Order 13175 (Consultation and Coordination With Indian 
Tribes)

    The agency has analyzed this rulemaking action under Executive 
Order 13175, and has determined that the 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.

I. Plain Language

    Executive Order 12866 requires each agency to write all rules in 
plain language. Application of the principles of plain language 
includes consideration of the following questions:

--Have we organized the material to suit the public's needs?
--Are the requirements in the rule clearly stated?
--Does the rule contain technical language or jargon that is not clear?
--Would a different format (grouping and order of sections, use of 
headings, paragraphing) make the rule easier to understand?
--Could we improve clarity by adding tables, lists, or diagrams?
--What else could we do to make this rulemaking easier to understand?

    If you have any comments about the Plain Language implications of 
this final rule, please address them to the person listed under the FOR 
FURTHER INFORMATION CONTACT heading.

J. Regulatory Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier 
number (RIN) to each regulatory action listed in the Unified Agenda of 
Federal Regulations. The Regulatory Information Service Center 
publishes the Unified Agenda in April and October of each year. You may 
use the RIN contained in the heading at the beginning of this document 
to find this action in the Unified Agenda.

K. Privacy Act

    Please note that anyone is able to search the electronic form of 
all comments received into any of our dockets by the name of the 
individual submitting the comment (or signing the comment, if submitted 
on behalf of an association, business, labor union, etc.). You may 
review DOT's complete Privacy Act Statement in the Federal Register 
published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78), or 
you may visit http://dms.dot.gov.

List of Subjects in 23 CFR Part 1313

    Alcohol abuse, Drug abuse, Grant programs--transportation, Highway 
safety, Reporting and recordkeeping requirements.


0
In consideration of the foregoing, the agency amends title 23 of CFR 
part 1313 as follows:

PART 1313--INCENTIVE GRANT CRITERIA FOR ALCOHOL-IMPAIRED DRIVING 
PREVENTION PROGRAMS

0
1. The citation of authority for part 1313 continues to read as 
follows:


    Authority: 23 U.S.C. 410; delegation of authority at 49 CFR 
1.50.


0
2. Section 1313.3 is amended by removing paragraphs (c) and (g), 
redesignating paragraphs (d) through (f) as paragraphs (c) through (e) 
and adding new paragraphs (f) and (g) to read as follows:


Sec.  1313.3  Definitions.

* * * * *
    (f) Other associated costs permitted by statute means labor costs, 
management costs, and equipment procurement costs for the high 
visibility enforcement campaigns under Sec.  1313.6(a); the costs of 
training law enforcement personnel and procuring technology and 
equipment, including video equipment and passive alcohol sensors, to 
counter directly impaired operation of motor vehicles; the costs of 
public awareness, advertising, and educational campaigns that publicize 
use of sobriety check points or increased law enforcement efforts to 
counter impaired operation of motor vehicles or that target impaired 
operation of motor vehicles by persons under 34 years of age; the costs 
of the development and implementation of a State impaired operator 
information system; and the costs of operating programs that result in 
vehicle forfeiture or impoundment or license plate impoundment.
    (g) State means any one of the fifty States, the District of 
Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and 
the Commonwealth of the Northern Mariana Islands.

0
3. Sections 1313.4 through 1313.8 are revised to read as follows:


Sec.  1313.4  General requirements.

    (a) Qualification requirements. To qualify for a grant under 23 
U.S.C. 410, a State must, for each fiscal year it seeks to qualify:
    (1) Meet the requirements of Sec.  1313.5 or Sec.  1313.7 
concerning alcohol-related fatalities, as determined by the agency, and 
submit written certifications signed by the Governor's Representative 
for Highway Safety that it will--
    (i) Use the funds awarded under 23 U.S.C. 410 only for the 
implementation and enforcement of alcohol-impaired driving prevention 
programs in Sec.  1313.6 and other associated costs permitted by 
statute;
    (ii) Administer the funds in accordance with 49 CFR part 18 and OMB 
Circular A-87; and
    (iii) Maintain its aggregate expenditures from all other sources 
for its alcohol-impaired driving prevention programs at or above the 
average level of such expenditures in fiscal years

[[Page 20569]]

2004 and 2005 (either State or Federal fiscal year 2004 and 2005 can be 
used); or
    (2) By August 1, submit an application to the appropriate NHTSA 
Regional Office identifying the criteria that it meets under Sec.  
1313.6 and including the certifications in paragraph (a)(1)(i) through 
(a)(1)(iii) of this section and the additional certification that it 
has an alcohol-impaired driving prevention program that meets the 
requirements of 23 U.S.C. 410 and 23 CFR part 1313.
    (b) Post-approval requirements. (1) Within 30 days after 
notification of award, in no event later than September 12 of each 
year, a State must submit electronically to the agency a Program Cost 
Summary (HS Form 217) obligating the funds to the Section 410 program; 
and
    (2) Until all Section 410 grant funds are expended, the State must 
document how it intends to use the funds in the Highway Safety Plan it 
submits pursuant to 23 U.S.C. 402 (or in an amendment to that plan) and 
detail the program activities accomplished in the Annual Report it 
submits for its highway safety program pursuant to 23 CFR 1200.33.
    (c) Funding requirements and limitations. A State may receive 
grants, beginning in FY 2006, in accordance with the apportionment 
formula under 23 U.S.C. 402 and subject to the following limitations:
    (1) The amount available for grants under Sec.  1313.5 or Sec.  
1313.6 shall be determined based on the total number of eligible States 
for these grants and after deduction of the amount necessary to fund 
grants under Sec.  1313.7.
    (2) The amount available for grants under Sec.  1313.7 shall not 
exceed 15 percent of the total amount made available to States under 23 
U.S.C. 410 for the fiscal year, with no State receiving more than 30 
percent of this amount.
    (3) In the first or second fiscal years a State receives a grant 
under this part, it shall be reimbursed for up to 75 percent of the 
cost of its alcohol-impaired driving prevention program adopted 
pursuant to 23 U.S.C. 410.
    (4) In the third and fourth fiscal years a State receives a grant 
under this part, it shall be reimbursed for up to 50 percent of the 
cost of its alcohol-impaired driving prevention program adopted 
pursuant to 23 U.S.C. 410.


Sec.  1313.5  Requirements for a low fatality rate state.

    To qualify for a grant as a low fatality rate State, the State 
shall have an alcohol related fatality rate of 0.5 or less per 
100,000,000 vehicle miles traveled (VMT) as of the date of the grant, 
as determined by NHTSA using the most recently available final FARS 
data. The agency plans to make this information available to States by 
June 1 of each fiscal year.


Sec.  1313.6  Requirements for a programmatic state.

    To qualify for a grant as a programmatic State, a State must adopt 
and demonstrate compliance with at least three of the following 
criteria in FY 2006, at least four of the following criteria in FY 
2007, and at least five of the following criteria in FY 2008 and FY 
2009:
    (a) High Visibility Enforcement Campaign--(1) Criterion. A high 
visibility impaired driving law enforcement program that includes:
    (i) State participation in the annual National impaired driving law 
enforcement campaign organized by NHTSA;
    (ii) Additional high visibility law enforcement campaigns within 
the State conducted on a quarterly basis at high-risk times throughout 
the year; and
    (iii) Use of sobriety checkpoints and/or saturation patrols at 
high-risk locations throughout the State, conducted in a highly visible 
manner and supported by publicity.
    (2) Definitions. (i) Sobriety checkpoint means a law enforcement 
activity during which law enforcement officials stop motor vehicles on 
a non-discriminatory, lawful basis for the purpose of determining 
whether or not the operators of such motor vehicles are driving while 
impaired by alcohol and/or other drugs.
    (ii) Saturation patrol means a law enforcement activity during 
which enhanced levels of law enforcement are conducted in a 
concentrated geographic area (or areas) for the purpose of detecting 
drivers operating motor vehicles while impaired by alcohol and/or other 
drugs.
    (iii) Law enforcement agency means an agency identified by the 
State and included in an enforcement plan for purposes of meeting 
coverage and other requirements listed in Sec.  1313.6(a)(3)(i)-(ii).
    (3) Demonstrating compliance. (i) To demonstrate compliance in the 
first fiscal year under this criterion, the State shall submit a 
comprehensive plan for conducting a high visibility impaired driving 
law enforcement program under which:
    (A) State Police and local law enforcement agencies collectively 
serving at least 50 percent of the State's population or serving 
geographic subdivisions that account for at least 50 percent of the 
State's alcohol-related fatalities will participate in the State's high 
visibility impaired driving law enforcement program;
    (B) Each participating law enforcement agency will conduct 
checkpoints and/or saturation patrols on at least four nights during 
the annual National impaired driving campaign organized by NHTSA and 
will conduct checkpoints and/or saturation patrols on at least four 
occasions throughout the remainder of the year;
    (C) The State will coordinate law enforcement activities throughout 
the State to maximize the frequency and visibility of law enforcement 
activities at high-risk locations Statewide; and
    (D) Paid and/or earned media will publicize law enforcement 
activities before, during and after they take place, both during the 
National campaign and on a sustained basis at high risk times 
throughout the year.
    (ii) To demonstrate compliance in subsequent fiscal years, the 
State shall submit information documenting that the prior year's plan 
was effectively implemented and an updated plan for conducting a 
current high visibility impaired driving law enforcement program 
containing the elements specified in Sec.  1313.6(a)(3)(i) and 
(a)(3)(iii), except that the level of law enforcement agency 
participation must reach at least 55 percent of the State's population 
or cover geographic subdivisions that account for at least 55 percent 
of the State's alcohol-related fatalities in the second year the State 
receives a grant based on this criterion, 60 percent of either of these 
two measures in the third year and 65 percent of either of these two 
measures in the fourth year.
    (iii) For the purposes of paragraph (a) of this section, a 
comprehensive plan shall include:
    (A) Guidelines, policies or procedures governing the Statewide 
enforcement program;
    (B) Approximate dates and locations of planned law enforcement 
activities;
    (C) A list of law enforcement agencies expected to participate; and
    (D) A paid media buy plan, if the State buys media, and a 
description of anticipated earned media activities before, during and 
after planned enforcement efforts;
    (b) Prosecution and Adjudication Outreach Program--(1) Criterion. A 
prosecution and adjudication program that provides for either:
    (i) A statewide outreach effort that reduces the use of diversion 
programs through education of prosecutors and

[[Page 20570]]

court professionals and includes the following topics--
    (A) State impaired driving statutes and applicable case law;
    (B) Searches, seizures and arrests;
    (C) Admissibility of evidence;
    (D) Biochemical and physiological information; and
    (E) Sentencing of impaired drivers; or
    (ii) A statewide outreach effort that provides information to 
prosecutors and court professionals on innovative approaches to the 
prosecution and adjudication of impaired driving cases and includes the 
following topics--
    (A) Alcohol assessments and treatment;
    (B) Vehicle sanctioning;
    (C) Electronic monitoring and home detention; and
    (D) DWI courts; or
    (iii) A Statewide tracking system that monitors the adjudication of 
impaired driving cases that--
    (A) Covers a majority of the judicial jurisdictions in the State; 
and
    (B) Collects data on original criminal and traffic-related 
charge(s) against a defendant, the final charge(s) brought by a 
prosecutor, and the disposition of the charge(s) or sentence provided.
    (2) Definitions. (i) Diversion Program means a program under which 
an offender is allowed to obtain a reduction or dismissal of an 
impaired driving charge or removal of an impaired driving offense from 
a driving record based on participation in an educational course, 
community service activity, or treatment program.
    (ii) Traffic Safety Resource Prosecutor means an individual or 
entity used by the State on a full-time basis to provide support in the 
form of education and outreach programs and technical assistance to 
enhance the capability of prosecutors to effectively prosecute across-
the-State traffic safety violations.
    (iii) State Judicial Educator means an individual or entity used by 
the State on a full-time basis to enhance the performance of a State's 
judicial system by providing education and outreach programs and 
technical assistance to continuously improve personal and professional 
competence of all persons performing judicial branch functions.
    (3) Demonstrating compliance. (i) To demonstrate compliance in the 
first fiscal year under this criterion, the State shall submit:
    (A) A course syllabus for a Statewide outreach and education 
program and a certification that its program is provided on an annual 
basis (a minimum of once a year and a minimum of eight hours of 
training) and covers the required topics in either Sec.  
1313.6(b)(1)(i) or (b)(1)(ii); or
    (B) Information indicating its use of a State sanctioned Traffic 
Safety Resource Prosecutor and State Judicial Educator and a list of 
impaired-driving-related educational programs offered by each position; 
or
    (C) The names and locations of the judicial jurisdictions covered 
by a Statewide tracking system and the type of information collected.
    (ii) To demonstrate compliance in a subsequent fiscal year for an 
outreach and education program, the State must certify that the 
outreach and education program continues to be conducted on an annual 
basis and covers the required topics in either Sec.  1313.6(b)(1)(i) or 
(b)(1)(ii) and provide a new course syllabus if the program has been 
altered from the previous year.
    (iii) To demonstrate compliance in a subsequent fiscal year for use 
of a Traffic Safety Resource Prosecutor and State Judicial Educator, 
the State must certify the continued existence of these positions and 
provide updated information if there has been a change in the status of 
these positions or the list of impaired-driving-related educational 
programs offered.
    (iv) To demonstrate compliance in a subsequent fiscal year for use 
of a Statewide tracking system that monitors the adjudication of 
impaired driving cases, the State must provide an updated list of the 
courts involved and updated data collection information if there has 
been a change from the previous year.
    (c) BAC Testing Program--(1) Criterion. An effective system for 
increasing the percentage of BAC testing among drivers involved in 
fatal motor vehicle crashes, subject to Sec.  1313.6(c)(3), under 
which:
    (i) The State submits a plan identifying approaches that will be 
taken during the fiscal year to achieve a BAC testing increase 
specified under Sec.  1313.6(c)(1)(iii);
    (ii) The State's law provides for mandatory BAC testing for drivers 
involved in fatal motor vehicle crashes and the State submits a plan in 
accordance with Sec.  1313.6(c)(1)(i); or
    (iii) The State's percentage of BAC testing among drivers involved 
in fatal motor vehicle crashes is greater than the previous year by at 
least 1 percentage point (1.0, as rounded to the first decimal place), 
as determined by the agency. The most recently available final FARS 
data as of the date of the grant will be used to determine a State's 
BAC testing rate.
    (2) Definition. Drivers involved in fatal motor vehicle crashes 
includes both drivers who are fatally injured in motor vehicle crashes 
and drivers who survive a motor vehicle crash in which someone else is 
killed.
    (3) Demonstrating compliance. Subject to the additional 
requirements of Sec.  1313.6(c)(4), to demonstrate compliance under 
this criterion, that State shall:
    (i) In FY 2006 and FY 2007, submit a plan, as required in Sec.  
1313.6(c)(1)(i), that describes approaches that are to be implemented 
during the fiscal year that will result in an increase in the State's 
BAC testing rate. The plan must include information on how each 
approach will be implemented and the expected outcome from 
implementation, and the plan must be updated each subsequent year it is 
submitted;
    (ii) In FY 2008 and FY 2009, submit a plan, as required in Sec.  
1313.6(c)(1)(i), that describes approaches that are to be implemented 
during the fiscal year that will result in an increase in the State's 
BAC testing rate and submit a copy of its law as described in Sec.  
1313.6(c)(1)(ii). The plan must include information on how each 
approach will be implemented and the expected outcome from 
implementation, and the plan must be updated each subsequent year it is 
submitted; or
    (iii) In any fiscal year, submit a statement that it intends to 
apply on the basis of an increase from the previous year in the 
percentage of BAC testing among drivers involved in fatal motor vehicle 
crashes in the State, in accordance with Sec.  1313.6(c)(1)(iii) (the 
agency will determine compliance with this requirement).
    (4) Implementation of plan. A State electing to demonstrate 
compliance under Sec.  1313.6(c)(3)(i) or (c)(3)(ii) shall, in every 
fiscal year except the first fiscal year it seeks to comply, submit 
information demonstrating that the prior year's plan was effectively 
implemented.
    (d) High Risk Drivers Program--(1) Criterion. A law that 
establishes stronger sanctions or additional penalties for individuals 
convicted of operating a motor vehicle with a high BAC that requires:
    (i) In the case of an individual who, in any five-year period 
beginning after June 9, 1998, is convicted of operating a motor vehicle 
with a BAC of 0.15 or more--
    (A) A suspension of all driving privileges for a period of not less 
than one year, or not less than 45 days followed immediately by a 
period of not less than 320 days of a restricted, provisional or 
conditional license, if such license restricts the individual to 
operating only vehicles equipped with an ignition interlock. A 
restricted, provisional or conditional license may be issued only to 
permit the offender to operate a motor vehicle to and from

[[Page 20571]]

employment, school, an alcohol treatment program or an interlock 
service facility; and
    (B) A mandatory assessment by a certified substance abuse official, 
with possible referral to counseling if determined appropriate.
    (2) Demonstrating Compliance. (i) To demonstrate compliance in the 
first fiscal year under this criterion, the State shall submit a copy 
of the law that provides for each element of this criterion.
    (ii) To demonstrate compliance in subsequent fiscal years, a State 
shall submit a copy of any changes to the State's law or, if there have 
been no changes, the State shall submit a statement certifying that 
there have been no changes in the State's law.
    (e) Alcohol Rehabilitation or DWI Court Program--(1) Criterion. A 
treatment program for repeat or high-risk offenders in a State that 
provides for either:
    (i) An effective inpatient and outpatient alcohol rehabilitation 
system for repeat offenders, under which--
    (A) A State enacts and enforces a law that provides for mandatory 
assessment of a repeat offender by a certified substance abuse official 
and requires referral to appropriate treatment as determined by the 
assessment; and
    (B) A State monitors the treatment progress of repeat offenders 
through a Statewide tracking system; or
    (ii) A DWI Court program, under which a State refers impaired 
driving cases involving high-risk offenders to a State-sanctioned DWI 
Court for adjudication.
    (2) Definitions. (i) DWI Court means a court that specializes in 
driving while impaired cases, or a combination of drug-related and 
driving while impaired cases, and abides by the Ten Guiding Principles 
of DWI Courts in effect on the date of the grant, as established by the 
National Association of Drug Court Professionals.
    (ii) High-risk offender means a person who meets the definition of 
a repeat offender or has been convicted of driving while intoxicated or 
driving under the influence with a BAC level of 0.15 or greater.
    (iii) Repeat offender means a person who has been convicted of 
driving while intoxicated or driving under the influence of alcohol 
more than once in any five-year period.
    (3) Demonstrating Compliance. (i) To demonstrate compliance in the 
first fiscal year under this criterion, the State shall submit:
    (A) A copy of its law that provides for mandatory assessment and 
referral to treatment and a copy of its tracking system for monitoring 
the treatment of repeat offenders; or
    (B) A certification that at least one State-sanctioned DWI court is 
operating in the State, which includes the name and location of the 
court.
    (ii) To demonstrate compliance in subsequent fiscal years, the 
State shall submit:
    (A) Information concerning any changes to the alcohol 
rehabilitation program that was previously approved by the agency, or 
if there have been no changes, a statement certifying that there have 
been no changes to the materials previously submitted; or
    (B) A certification, in the second year, that at least two State-
sanctioned DWI courts are operating in the State, in the third year, 
that at least three State-sanctioned DWI courts are operating in the 
State, and in the fourth year, that at least four State-sanctioned DWI 
courts are operating in the State, with each certification including 
the names and locations of all of the courts; or a certification, in 
any year, that at least four State-sanctioned DWI courts are operating 
in the State, which includes the names and locations of all of the 
courts.
    (f) Underage Drinking Prevention Program--(1) Criterion. An 
effective underage drinking prevention program designed to prevent 
persons under the age of 21 from obtaining alcoholic beverages and to 
prevent persons of any age from making alcoholic beverages available to 
persons under the age of 21, that provides for:
    (i) The issuance of a tamper resistant driver's license to persons 
under age 21 that is easily distinguishable in appearance from a 
driver's license issued to persons 21 years of age and older;
    (ii) A program, conducted by a nonprofit or public organization 
that provides training to alcoholic beverage retailers and servers 
concerning the clinical effects of alcohol, methods of preventing 
second-party sales of alcohol, recognizing signs of intoxication, 
methods to prevent underage drinking, and relevant laws that apply to 
retailers and servers and that provides procedures to ensure program 
attendance by appropriate personnel of alcoholic beverage retailers and 
servers;
    (iii) A law that creates a blood alcohol content limit of no 
greater than 0.02 percent for drivers under age 21;
    (iv) A plan that focuses on underage drivers' access to alcohol by 
those under age 21 and the enforcement of applicable State law; and
    (v) A strategy for communication to support enforcement designed to 
reach those under age 21 and their parents or other adults and that 
includes a media campaign.
    (2) Definition. Tamper resistant driver's license means a driver's 
license that has one or more of the security features listed in the 
Appendix.
    (3) Demonstrating Compliance. (i) To demonstrate compliance in the 
first fiscal year under this criterion, the State shall submit sample 
drivers' licenses issued to persons both under and over 21 years of age 
that demonstrate the distinctive appearance of licenses for drivers 
under age 21 and the tamper resistance of these licenses. States shall 
also submit a plan describing a program for educating point-of-sale 
personnel that covers each element of Sec.  1313.6(f)(1)(ii). States 
shall submit a copy of their zero tolerance law that complies with 23 
U.S.C. 161. In addition, States shall submit a plan that provides for 
an enforcement program and communications strategy meeting Sec.  
1313.6(f)(1)(iv) and (v).
    (ii) To demonstrate compliance in subsequent fiscal years, States 
need only submit information documenting any changes to the State's 
driver's licenses or underage driving prevention program, or a 
certification stating there have been no changes since the State's 
previous year submission.
    (g) Administrative License Suspension or Revocation System--(1) 
Criterion. An administrative driver's license suspension or revocation 
system for individuals who operate motor vehicles while under the 
influence of alcohol that requires that:
    (i) In the case of an individual who, in any five-year period 
beginning after June 9, 1998, is determined on the basis of a chemical 
test to have been operating a motor vehicle while under the influence 
of alcohol or is determined to have refused to submit to such a test as 
proposed by a law enforcement officer, the State entity responsible for 
administering driver's licenses, upon receipt of the report of the law 
enforcement officer, shall--
    (A) For a first offender, suspend all driving privileges for a 
period of not less than 90 days, or not less than 15 days followed 
immediately by a period of not less than 75 days of a restricted, 
provisional or conditional license, if such license restricts the 
offender to operating only vehicles equipped with an ignition 
interlock. A restricted, provisional or conditional license may be 
issued only to permit the offender to operate a motor vehicle to and 
from employment, school, an alcohol treatment program or an interlock 
service facility; and

[[Page 20572]]

    (B) For a repeat offender, suspend or revoke all driving privileges 
for a period of not less than one year, or not less than 45 days 
followed immediately by a period of not less than 320 days of a 
restricted, provisional or conditional license, if such license 
restricts the offender to operating only vehicles equipped with an 
ignition interlock. A restricted, provisional or conditional license 
may be issued only to permit the offender to operate a motor vehicle to 
and from employment, school, an alcohol treatment program or an 
interlock service facility; and
    (ii) The suspension or revocation shall take effect not later than 
30 days after the day on which the individual refused to submit to a 
chemical test or received notice of having been determined to be 
operating a motor vehicle while under the influence of alcohol, in 
accordance with the procedures of the State.
    (2) Definitions. (i) First offender means an individual who a law 
enforcement officer has probable cause under State law to believe has 
committed an alcohol-related traffic offense, and who is determined on 
the basis of a chemical test to have been operating a motor vehicle 
while under the influence of alcohol or who refused to submit to such a 
test, once in any five-year period beginning after June 9, 1998.
    (ii) Repeat offender means an individual who a law enforcement 
officer has probable cause under State law to believe has committed an 
alcohol-related traffic offense, and who is determined on the basis of 
a chemical test to have been operating a motor vehicle while under the 
influence of alcohol or who refused to submit to such a test, more than 
once in any five-year period beginning after June 9, 1998.
    (3) Demonstrating compliance for Law States. (i) To demonstrate 
compliance in the first fiscal year under this criterion, a Law State 
shall submit a copy of the law, regulation or binding policy directive 
implementing or interpreting the law or regulation that provides for 
each element of this criterion.
    (ii) To demonstrate compliance in subsequent fiscal years, a Law 
State shall submit a copy of any changes to the State's law, regulation 
or binding policy directive or, if there have been no changes, a 
statement certifying that there have been no changes to the State's 
laws, regulations or binding policy directives.
    (iii) For purposes of paragraph (g) of this section, Law State 
means a State that has a law, regulation or binding policy directive 
implementing or interpreting an existing law or regulation that 
provides for each element of this criterion.
    (4) Demonstrating compliance for Data States. (i) To demonstrate 
compliance in the first fiscal year under this criterion, a Data State 
shall submit a copy of the law, regulation or binding policy directive 
implementing or interpreting the law or regulation that provides for an 
administrative license suspension or revocation system, and data 
showing that the State substantially complies with each element of this 
criterion not specifically provided for in the State's law, regulation 
or binding policy directive.
    (ii) To demonstrate compliance in subsequent fiscal years, a Data 
State shall submit, in addition to the information identified in Sec.  
1313.6(g)(3)(ii), data showing that the State substantially complies 
with each element of this criterion not specifically provided for in 
the State's law, regulation or binding policy directive.
    (iii) The State can provide the necessary data based on a 
representative sample, on the average number of days it took to suspend 
or revoke a driver's license and on the average lengths of suspension 
or revocation periods, except that data on the average lengths of 
suspension or revocation periods must not include license suspension 
periods that exceed the terms actually prescribed by the State, and 
must reflect terms only to the extent that they are actually completed.
    (iv) For purposes of paragraph (g) of this section, Data State 
means a State that has a law, regulation or binding policy directive 
implementing or interpreting an existing law or regulation that 
provides for an administrative license suspension or revocation system, 
but the State's laws, regulations or binding policy directives do not 
specifically provide for each element of this criterion.
    (h) Self-Sustaining Impaired Driving Prevention Program--(1) 
Criterion. A self-sustaining impaired driving prevention program under 
which a significant portion of the fines or surcharges collected from 
individuals who are fined for operating a motor vehicle while under the 
influence of alcohol are returned to communities for use in a 
comprehensive impaired driving prevention program.
    (2) Definitions. (i) A comprehensive drunk driving prevention 
program means a program that includes, at a minimum, the following 
components:
    (A) Regularly conducted, peak-hour traffic enforcement efforts 
directed at impaired driving;
    (B) Prosecution, adjudication and sanctioning resources that are 
adequate to handle increased levels of arrests for operating a motor 
vehicle while under the influence of alcohol;
    (C) Programs directed at prevention other than enforcement and 
adjudication activities, such as school, worksite or community 
education; server training; or treatment programs;
    (D) A public information program designed to make the public aware 
of the problem of impaired driving through paid and earned media and of 
the State's efforts to address it.
    (ii) Fines or surcharges collected means fines, penalties, fees or 
additional assessments collected.
    (iii) Significant portion means at least 90 percent of the fines or 
surcharges collected.
    (3) Demonstrating compliance. (i) To demonstrate compliance in the 
first fiscal year under this criterion, a State shall submit:
    (A) A copy of the law, regulation or binding policy directive 
implementing or interpreting the law or regulation that provides--
    (1) For fines or surcharges to be imposed on individuals 
apprehended for operating a motor vehicle while under the influence of 
alcohol; and
    (2) For such fines or surcharges collected to be returned to 
communities with comprehensive drunk driving prevention programs; and
    (B) Statewide data (or a representative sample) showing--
    (1) The aggregate amount of fines or surcharges collected;
    (2) The aggregate amount of revenues returned to communities with 
Comprehensive drunk driving prevention programs under the State's self-
sustaining system; and
    (3) The aggregate cost of the State's comprehensive drunk driving 
prevention programs.
    (ii) To demonstrate compliance in subsequent fiscal years, the 
State shall submit, in addition to the data identified in paragraph 
(h)(3)(i)(B) of this section, a copy of any changes to the State's law, 
regulation or binding policy directive or, if there have been no 
changes, a statement certifying that there have been no changes in the 
State's laws, regulations or binding policy directives.


Sec.  1313.7  Requirements for a high fatality rate state.

    To qualify for a grant as a high fatality rate State, the State 
shall be among the ten States that have the highest alcohol-related 
fatality rates, as determined by the agency using the most recently 
available final FARS data as of the date of the grant. The agency plans 
to make this information available to States by June 1 of each fiscal 
year.

[[Page 20573]]

    (1) Demonstrating compliance. To demonstrate compliance in each 
fiscal year a State qualifies as a high fatality rate State, the State 
shall submit a plan for grant expenditures that is approved by the 
agency and that expends funds in accordance with Sec.  1313.4. The plan 
must allocate at least 50 percent of the funds to conduct a high 
visibility impaired driving enforcement campaign in accordance with 
Sec.  1313.6(a) and include information that satisfies the planning 
requirements of Sec.  1313.6(a)(3)(iii).


Sec.  1313.8  Award procedures.

    In each Federal fiscal year, grants will be made to eligible States 
that satisfy the requirements of Sec.  1313.4(a), subject to the 
requirements of Sec.  1313.4(b) and (c). The release of grant funds 
under this part shall be subject to the availability of funding for 
that fiscal year.

0
4. Appendix to part 1313 is being republished to read as follows:

Appendix to Part 1313--Tamper Resistant Driver's License

    A tamper resistant driver's license or permit is a driver's 
license or permit that has one or more of the following security 
features:
    (1) Ghost image.
    (2) Ghost graphic.
    (3) Hologram.
    (4) Optical variable device.
    (5) Microline printing.
    (6) State seal or a signature which overlaps the individual's 
photograph or information.
    (7) Security laminate.
    (8) Background containing color, pattern, line or design.
    (9) Rainbow printing.
    (10) Guilloche pattern or design.
    (11) Opacity mark.
    (12) Out of gamut colors (i.e., pastel print).
    (13) Optical variable ultra-high-resolution lines.
    (14) Block graphics.
    (15) Security fonts and graphics with known hidden flaws.
    (16) Card stock, layer with colors.
    (17) Micro-graphics.
    (18) Retroreflective security logos.
    (19) Machine readable technologies such as magnetic strips, a 1D 
bar code or a 2D bar code.

    Issued on: April 17, 2006.
Jacqueline Glassman,
Deputy Administrator.
[FR Doc. 06-3781 Filed 4-20-06; 8:45 am]
BILLING CODE 4910-59-P