[Federal Register Volume 64, Number 126 (Thursday, July 1, 1999)]
[Rules and Regulations]
[Pages 35568-35573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16747]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
Federal Highway Administration
23 CFR Part 1225
[Docket No. NHTSA-99-5873]
RIN 2127-AH39
Operation of Motor Vehicles by Intoxicated Persons
AGENCY: National Highway Traffic Safety Administration (NHTSA) and
Federal Highway Administration (FHWA), Department of Transportation
(DOT).
ACTION: Final rule.
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SUMMARY: This document announces that the regulations that were
published in an interim final rule to implement a new program
established by the Transportation Equity Act for the 21st Century (TEA
21) will remain in effect. Under the final rule, States can qualify for
incentive grant funds if they enact and enforce a law that provides
that any person with a blood alcohol concentration of 0.08 percent or
greater while operating a motor vehicle in the State shall be deemed to
have committed a per se offense of driving while intoxicated or an
equivalent per se offense. This final rule also modifies the interim
requirements with respect to procedural issues, including the date by
which certifications are due.
DATES: This final rule becomes effective on July 1, 1999.
FOR FURTHER INFORMATION CONTACT: In NHTSA: Ms. Marlene Markison, Office
of State and Community Services, NSC-01, telephone (202) 366-2121; or
Ms. Heidi L. Coleman, Office of Chief Counsel, NCC-30, telephone (202)
366-1834.
In FHWA: Byron Dover, Office of Highway Safety Infrastructure,
HMHS-1, telephone (202) 366-2161; or Mr. Raymond W. Cuprill, HCC-20,
telephone (202) 366-0834.
SUPPLEMENTARY INFORMATION: The Transportation Equity Act for the 21st
Century (TEA-21), Pub. L. 105-178, was signed into law on June 9, 1998.
Section 1404 of the Act established a new incentive grant program under
Section 163 of Title 23, United States Code (Section 163). Under this
new program, States may qualify for incentive grant funds by enacting
and enforcing laws that provide that ``any person with a blood alcohol
concentration (BAC) of 0.08 percent or greater while operating a motor
vehicle in the State shall be deemed to have committed a per se offense
of driving while intoxicated (or an equivalent per se offense).''
The new program was put into place to address the issue of impaired
driving, which continues to be a serious national problem with tragic
consequences. The agencies believe that 0.08 BAC laws will have a
significant impact on reducing this problem.
Background
The Problem of Impaired Driving
Injuries caused by motor vehicle traffic crashes are a major health
care problem in America and are the leading cause of death for people
aged 6 to 27. Each year, the injuries caused by traffic crashes in the
United States claim approximately 42,000 lives and cost Americans an
estimated $150 billion, including $19 billion in medical and emergency
expenses, $42 billion in lost productivity, $52 billion in property
damage, and $37 billion in other crash related costs.
In 1997, alcohol was involved in approximately 39 percent of fatal
traffic crashes. Every 30 minutes, someone in this country dies in an
alcohol-related crash. Each year, alcohol-involved crashes result in
$45 billion in economic costs, accounting for 30 percent of all crash
costs. Impaired driving is the most frequently committed violent crime
in America.
Impaired Driving Laws
States have enacted a number of different types of laws in their
efforts to fight the battle against impaired driving. For example,
forty-eight States and the District of Columbia have enacted ``illegal
per se'' laws. Two States and Puerto Rico have not. An illegal per se
law makes it illegal, in and of itself, to drive with a blood alcohol
concentration (BAC) measured at or above the established legal limit.
In 32 of the States with illegal per se laws, the legal limit is
0.10 percent blood alcohol concentration (BAC). Sixteen States and the
District of Columbia have enacted (and made effective) laws that
establish 0.08 BAC as the legal limit. In addition, on May 28, 1999,
the State of Texas enacted a 0.08 BAC law. This law is to become
effective on September 1, 1999.
The Effectiveness of 0.08 BAC Laws
A number of studies have been conducted to determine the
effectiveness of 0.08 BAC laws.
For example, the effect of California's 0.08 law was analyzed in a
1991 NHTSA study. The agency found that 81 percent of the driving
population knew that the BAC limit had become stricter (as the result
of a successful public education effort). The State experienced a 12
percent reduction in alcohol-related fatalities, although some of the
reduction may have resulted from a new administrative license
revocation law that was enacted during the same year that the BAC
standard was lowered. The State also experienced an increase in the
number of impaired driving arrests.
A multi-state analysis of the effect of lowering BAC levels to 0.08
was conducted by Boston University's School of Public Health. The
results of that study were reported in the September 1996 issue of the
American
[[Page 35569]]
Journal of Public Health, a peer-reviewed journal. The Boston
University study compared the first five states to lower their BAC
limit to 0.08 (California, Maine, Oregon, Utah, and Vermont) with five
nearby states that retained the 0.10 BAC limit. The results of this
study suggest that 0.08 BAC laws, particularly in combination with
administrative license revocation, reduce the proportion of fatal
crashes involving drivers and fatally injured drivers at blood alcohol
levels of 0.08 percent and higher by 16 percent and those at a BAC of
0.15 percent and greater by 18 percent.
The immediate significance of these findings is that the 0.08 BAC
laws, particularly in combination with administrative license
revocation, not only reduced the overall incidence of alcohol
fatalities, but also reduced fatalities at the higher BAC levels. The
effect on the number of extremely impaired drivers was even greater
than the overall effect.
The study concluded that if all States lowered their BAC limits to
0.08, alcohol-related highway deaths would decrease nationwide by 500-
600 per year, which would result in an economic cost savings of
approximately $1.5 billion.
In a 1995 NHTSA analysis of the same five States studied by Boston
University, the agency examined six different measures of driver
alcohol involvement in fatal crashes and compared the time period
before the 0.08 law was passed with the time period after passage of
the law for each State. A total of thirty comparisons of the level of
driver alcohol involvement were made. Ten of the thirty comparisons (in
four of the five States) showed statistically significant decreases. An
additional 16 comparisons, while not statistically significant, also
showed decreases. None of the comparisons for the rest of the nation
(States at 0.10 BAC) showed changes that were statistically
significant.
Other studies published on the effects of enacting 0.08 BAC laws,
which use various different measures, have all shown significant
decreases in alcohol-related fatalities. NHTSA surveys all show that
most people would not drive after consuming two or three beers in an
hour (the amount of alcohol an average 120-pound woman would have to
drink on an empty stomach to reach 0.08 BAC; an average 170-pound man
would have to consume 4-5 beers in an hour on an empty stomach to reach
that BAC level). In addition, three recent scientific telephone polls
indicate that two out of every three Americans think the BAC standard
should be lowered to 0.08.
NHTSA recently completed three additional studies of the effects of
lowering the illegal BAC limit from 0.10 to 0.08 percent. The most
comprehensive study (covering all 50 States) analyzed the effects of
both 0.08 and 0.10 illegal per se laws, as well as administrative
license revocation (ALR) laws over a 16-year time period. That study
estimated that 0.08 BAC laws had an 8 percent effect in reducing fatal
crashes involving drivers at both high BAC's and lower BAC's, and
resulted in 275 fewer fatalities in the 15 States where they were in
effect in 1997. The study also concluded that, if all 50 States had
0.08 BAC laws in effect in 1997, an additional 5 percent of the
fatalities would have been prevented.
The second study examined the effects of 0.08 BAC and ALR laws in
eleven States. It found that 0.08 BAC laws were associated with
reductions in alcohol-related fatalities, alone or in conjunction with
ALR laws, in seven of the eleven States studied.
The third study analyzed the effects of a 0.08 BAC law implemented
in 1993 in North Carolina, a State which had already been experiencing
a sharp decline in alcohol-related fatalities since 1987. The North
Carolina study recognized that there was a pre-existing downward trend
in measures pertaining to alcohol-related crashes in the State prior to
the enactment of the 0.08 BAC law. The results of the study suggested
that some portion of the decline in alcohol-related fatalities
experienced in the State after the enactment of the 0.08 law may have
been associated with the law, but the magnitude of these effects was
not sufficient to make this conclusion. The study found no
statistically significant change in the pre-existing downward trend as
a result of the 0.08 law.
Copies of these three new studies will be placed in the docket for
this final rule.
Presidential Support for a National Standard at 0.08 BAC
President Clinton strongly supports the enactment of 0.08 BAC laws
by the States. In fact, on March 3, 1998, the President addressed the
Nation about his interest in promoting a national illegal per se limit
of 0.08 BAC across the country, including on Federal property. During
his address, the President called on Congress to pass impaired driving
legislation that would establish a national 0.08 BAC per se standard.
On March 4, 1998, the United States Senate passed ``The Safe and
Sober Streets Act of 1997,'' which had been introduced by Senator Frank
Lautenberg (D-NJ) and Senator Mike DeWine (R-OH). Similar legislation
was introduced in the U.S. House of Representatives by Rep. Nita Lowey
(D-NY).
The Safe and Sober Streets Act would have required the withholding
of certain Federal-aid highway funds from States that do not enact and
enforce 0.08 BAC per se laws. To avoid the withholding of funds, States
would have been required to enact and enforce 0.08 BAC per se laws by
October 1, 2001. This legislation, however, was not enacted into law.
Instead, Congress passed an incentive grant program to encourage
State enactment of 0.08 BAC laws. This program was included in TEA-21
(H.R. 2400). On June 9, 1998, President Clinton signed the legislation
and remarked, in his signing statement:
Today I am pleased to sign into law H.R. 2400, the
``Transportation Equity Act for the 21st Century.'' This
comprehensive infrastructure measure for our surface transportation
programs--highway, highway safety, and transit--retains the core
programs and builds on the initiatives established in the landmark
Intermodal Surface Transportation Efficiency Act of 1991.
* * * * *
I am deeply disappointed, however, that H.R. 2400 fails to
include language that would help to establish 0.08 percent [BAC] as
the standard for drunk driving in each of the 50 States. The
experience of States that have adopted the 0.08 blood alcohol level
shows that this stringent measure against drunk driving has the
potential, when applied nationwide, to save hundreds of lives each
year. Applying 0.08 nationwide is an important cornerstone of our
safety efforts. My Administration will continue to fight for it. In
the meantime, H.R. 2400 does establish a new $500 million incentive
program encouraging the States to adopt tough 0.08 BAC laws.
TEA-21 Section 163 Program
Section 163 provides that the Secretary of Transportation shall
make a grant to any State that has enacted and is enforcing a law that
provides that any person with a blood alcohol concentration of 0.08
percent or greater while operating a motor vehicle in the State shall
be deemed to have committed a per se offense of driving while
intoxicated or an equivalent per se offense.
Interim Final Rule
On September 3, 1998, NHTSA and the FHWA published a joint interim
final rule in the Federal Register to implement the Section 163
program. The interim final rule explained that, consistent with other
grant programs that are administered by the agencies, to qualify for
funding under the Section 163 program, States must have a law
[[Page 35570]]
that has both passed and been made effective, and the State must have
begun to implement the law. In addition, the law must meet certain
basic elements.
Compliance Criteria
The interim final rule defined those basic elements, as described
below. To qualify for funds under this program, a State must meet all
of the basic elements.
1. Any Person
A State must enact and enforce a law that establishes a BAC limit
of 0.08 or greater that applies to all persons. The law can provide for
no exceptions.
2. Blood Alcohol Concentration (BAC) of 0.08 Percent
A State must set a level of no more than 0.08 percent as the legal
limit for blood alcohol concentration, thereby making it an offense for
any person to have a BAC of 0.08 or greater while operating a motor
vehicle.
3. Per Se Law
A State must consider persons who have a BAC of 0.08 percent or
greater while operating a motor vehicle in the State to have committed
a per se offense of driving while intoxicated.
In other words, States must establish a 0.08 ``per se'' law, that
makes driving with a BAC of 0.08 percent or above, in and of itself, an
offense.
4. Primary Enforcement
A State must enact and enforce a 0.08 BAC law that provides for
primary enforcement.
Under a primary enforcement law, law enforcement officials have the
authority to enforce the law without, for example, the need to show
that they had probable cause or had cited the offender for a violation
of another offense. Any State with a law that provides for secondary
enforcement of its 0.08 BAC provision will not qualify for funds under
this program.
5. Both Criminal and ALR Laws
A State must establish a 0.08 BAC per se level under its criminal
code. In addition, if the State has an administrative license
revocation or suspension (ALR) law, the State must establish an illegal
0.08 BAC per se level under its ALR law, as well.
6. Standard Driving While Intoxicated Offense
The State's 0.08 BAC per se law must be deemed to be or be
equivalent to the State's standard driving while intoxicated offense.
In States with multiple drinking and driving provisions, the
interim final rule stated that the agencies will consider a number of
factors to determine whether the State's 0.08 BAC per se law has been
deemed to be or is equivalent to the standard driving while intoxicated
offense in the State. These factors will include the treatment of these
offenses, their relation to other offenses in the State and the
sanctions and other consequences that result when persons violate these
offenses.
A more detailed discussion of the six elements described above is
contained in the interim final rule (63 FR 46883-84).
Terms Governing the Incentive Grant Funds
The interim final rule indicated that a total of $500 million has
been authorized for the Section 163 program over a period of six years,
beginning in FY 1998. Specifically, TEA-21 authorized $55 million for
fiscal year 1998, $65 million for FY 99, $80 million for FY 2000, $90
million for FY 2001, $100 million for FY 2002 and $110 million for FY
2003.
Available funds will be apportioned in each fiscal year to the
States that qualify for grants, according to the Section 402 formula,
which is apportioned 75 percent based on the State's population and 25
percent based on the number of public road miles in the State.
In FY 1998, a total of $49,005,000 were distributed under this
program to fifteen States. The States were Alabama, California,
Florida, Hawaii, Idaho, Illinois, Kansas, Maine, New Hampshire, New
Mexico, North Carolina, Oregon, Utah, Vermont and Virginia.
As explained in the interim final rule, funds received by States
under the Section 163 program may be used for any project eligible for
assistance under Title 23 of the United States Code, which includes
highway construction as well as highway safety projects or programs.
Since States will be receiving Section 163 funds on the basis on their
0.08 BAC per se laws, a highway safety initiative, the agencies
strongly encouraged the States in the interim final rule to consider
eligible highway safety projects and programs when they are deciding
how they will spend these funds. The recipient States in FY 1998
expended approximately 78 percent of the funds received in the area of
highway safety.
Since Section 163 provides that the Federal share of the cost of a
project funded under this program shall be 100 percent, the interim
final rule provided that there is no State matching requirement for
these funds. The interim rule stated also that the funds authorized by
Section 163 shall remain available until expended.
Demonstrating Compliance
To demonstrate compliance with the provisions of the statutory and
regulatory requirements, the interim final rule provided that each
State must submit a certification in each year that it wishes to
receive a grant. A more detailed discussion regarding the contents of
the certifications is contained in the interim final rule (63 FR
46884).
To be eligible for grant funds in FY 1998, the interim rule
provided that States must submit their certifications no later than
September 4, 1998. To be eligible for grant funds in a subsequent
fiscal year, the interim rule provided that States must submit their
certifications no later than July 1 of that fiscal year. Under this
requirement, for example, States would be required to submit their
certifications no later than July 1, 1999 to be eligible for grant
funds in FY 1999. The agencies strongly encouraged States to submit
their certifications in advance of the regulatory deadlines.
Request for Comments
The agencies requested comments from interested persons on the
interim final rule that was published in September 3, 1998. Comments
were due by October 19. The agencies stated in the interim final rule
that all comments submitted to the agencies would be considered and
that following the close of the comment period, the agencies would
publish a document in the Federal Register responding to the comments
and, if appropriate, would make revisions to the provisions of Part
1225.
Comments Received
The agencies received submissions from four commenters in response
to the interim final rule. The commenters included: Earl Havatone,
Chairman of the Hualapai Nation; Robert R. McNichols, Superintendent of
the Bureau of Indian Affairs (BIA), Truxton Canon Agency, U.S.
Department of the Interior; Henry M. Jasny, General Counsel for
Advocates for Highway and Auto Safety (Advocates); and Kirk Brown,
Secretary of the Illinois Department of Transportation (IDOT).
1. General Comments
In general, the comments in response to the interim final rule were
very positive. Secretary Brown of IDOT offered one recommendation
regarding the date by which funds should be
[[Page 35571]]
distributed, but stated, ``IDOT supports the adoption of this interim
final rule as proposed.'' In addition, Mr. Jasny of Advocates stated:
Advocates is in agreement with [NHTSA] and the [FHWA] with
respect to nearly all the parameters set forth in the notice. The
agencies establish appropriate compliance criteria with respect to
the six items specifically referred to in the notice * * *
[Advocates recommends one addition to the regulation. With the
exception of this one suggestion,] Advocates concurs with the
agencies and supports this interim rule.
2. Comments Regarding Indian Tribes
Mr. Havatone of the Hualapai Nation and Mr. McNichols of BIA
submitted almost identical comments. They both urge the agencies to set
aside a portion of the funds authorized under this program for ``Indian
tribes for incentive grants which are not controlled by the States.''
These commenters point out that ``fatalities occur at higher rates on
Indian lands than anywhere else in the country, [but] this funding will
do little to help * * * [because] [m]any tribes will not apply to the
States for funding because we believe that doing so reduces the
sovereignty of the tribe.''
These commenters suggest that establishing such a set aside is
supported by a directive that was issued by the President, on April 29,
1994, entitled Government-to-Government Relations with Native American
Tribal Governments. A copy of this directive was enclosed with each of
these commenters' submissions.
The agencies agree that there is a disproportionate number of
fatalities on Indian lands, and actions should be taken to address this
serious problem. In addition, the agencies do encourage Tribal
governments to enact and enforce 0.08 BAC laws. In fact, when President
Clinton directed the Secretary of Transportation to develop a plan to
promote the adoption of a .08 BAC legal limit nationwide, he directed
that the plan consider ``encouraging Tribal governments to adopt,
enforce, and publicize a .08 BAC standard on highways in Indian Country
that are subject to their jurisdiction.''
Pursuant to the plan that was developed by the Secretary in
response to the President's direction, NHTSA is working jointly with
the Indian Health Service (IHS) on a number of initiatives to reduce
the problem of impaired driving on Indian lands. For example, IHS is
conducting a survey of Indian tribal laws covering impaired driving and
other highway safety areas; educational, enforcement and other efforts,
such as the ``None for the Road'' campaign, are being conducted on
Tribal lands; and Tribal governments are participating in highway
safety initiatives, including Buckle Up! America and the Safe Tribal
Communities Youth Campaign.
In addition, the Presidential directive on Government-to-Government
Relations with Native American Tribal Governments encourages executive
departments and agencies to undertake activities affecting Native
American tribal rights or trust resources in a knowledgeable, sensitive
manner respectful of tribal sovereignty, and to building a more
effective day-to-day working relationship reflecting respect for the
rights of self-government due the sovereign tribal governments.
Specifically, it directs executive departments and agencies, in
appropriate circumstances, to consult with tribal governments prior to
taking actions that affect them and to design solutions and tailor
Federal programs to address specific or unique need of tribal
communities.
However, the directive specifically states that it ``is intended
only to improve the internal management of the executive branch and is
not intended to, and does not, create any right * * * or benefit or
trust responsibility * * *,'' and the Section 163 program, which was
established in TEA-21, does not authorize the agency to set aside any
funds for incentive grants for Indian tribes. The statutory language
provides, ``The Secretary shall make a grant * * * to any State [with a
conforming law] * * *'' Some of the programs that are administered by
NHTSA and the FHWA define the term ``State'' in a manner that includes
Indian Tribes. (See, for example, Section 2001 of TEA-21, which re-
authorized the Section 402 program.) However, the Section 163 program
defines the term ``State'' to include only ``any of the 50 States, the
District of Columbia or Puerto Rico.''
Accordingly, while Tribal governments can continue to apply for
funds from States that receive Section 163 incentive grants, the
agencies are not authorized to set aside any Section 163 funds for
incentive grants to be given directly to Indian tribes. Therefore, no
changes have been made to the regulations in response to these
comments.
3. Comments from Advocates
As stated above, Advocates concurred with the agencies' interim
final rule, except in one area. Advocates agreed with all six
compliance criteria included in the interim rule. However, Advocates
stated that the agencies should have ``set criteria for minimum
penalties that a state law must impose in order to be eligible under
the program.''
Advocates recognized that Congress did not address the issue of
penalties in the statute, but stated that ``the agencies have the
authority to exercise * * * discretion in this area and are not
prohibited from doing so by the wording of the statute.'' Advocates
suggested that the agencies could ``evaluate the laws in states that
previously adopted 0.08 BAC as the threshold for intoxication
violations and use the least stringent penalty provision of the laws
already enacted as the minimum criteria for eligibility'' or,
alternatively, the agencies could ``establish a series of options, at
least one of which would be required for eligibility.''
The agencies do not believe it is necessary to establish a minimum
penalty criterion under this program. Rather, we believe the criteria
already established in the regulations are sufficient to ensure that
States establish meaningful penalties, because they require that the
State's 0.08 BAC per se law must be deemed to be or be equivalent to
the State's standard driving while intoxicated offense.
As the agencies explained in the interim final rule, most States
provide for a single driving while intoxicated offense. However, some
States have multiple offenses that relate to drinking and driving. In
these States, the most serious offense generally will be the State's
``standard driving while intoxicated'' offense (although it might be
called by another name, such as ``driving under the influence''). These
States may have a ``less-serious'' offense, which may be a ``lesser-
included'' offense of the standard driving while intoxicated offense in
the State.
With regard to States with multiple drinking and driving
provisions, it was explained in the interim final rule that the
agencies will consider a number of factors to determine whether the
State's 0.08 BAC per se law has been deemed to be or is equivalent to
the standard driving while intoxicated offense in the State. These
factors include the treatment of these offenses, their relation to
other offenses in the State and the sanctions and other consequences
that result when persons violate these offenses.
When the agencies have reviewed laws and proposed legislation from
States to determine whether they comply with Section 163 and the
interim regulations, we have considered these factors very carefully.
For example, one State that currently has a 0.10 per se law
submitted to us for review proposed legislation that would
[[Page 35572]]
have created a per se level at 0.08 BAC. However, the proposed
legislation would have retained the 0.10 law. It also would have
continued to apply to 0.10 offenders the same sanctions that currently
apply to such offenders, and an offender of the new 0.08 law would have
been subject to a lesser set of sanctions. Based on an examination of
these proposed provisions, we concluded that the proposed legislation,
if enacted without change, would not have complied with Section 163 and
the interim regulations because it would not have established 0.08 BAC
as the standard driving while intoxicated offense.
Because the agencies believe the criteria contained in the interim
regulations are sufficient to ensure that meaningful penalties will
apply to 0.08 offenders, the agencies have decided not to add a new
compliance criterion in response to this comment.
4. Timing for Applications and the Distribution of Funds
The interim final rule provided that, to qualify beginning in FY
1999, the agencies must receive from the State a certification no later
than July 1 of that fiscal year, and the certification must indicate
that the State ``has enacted and is enforcing a 0.08 BAC per se law
that conforms to 23 U.S.C. 163 and [the agencies' implementing
regulations].''
Upon further consideration of this requirement, the agencies
realize that a State could enact a conforming law prior to July 1 of a
fiscal year, and the law could become effective prior to the end of
that fiscal year, but after July 1 of that year. Accordingly, the
agencies have decided to amend the regulations to enable such States to
qualify for funding in the year in which the State's new law goes into
effect. To qualify for a first-year grant, they may submit
certifications that provide that the State has enacted a 0.08 BAC per
se law that conforms to 23 U.S.C. 163 and the agencies' implementing
regulations and will become effective and be enforced in the current
fiscal year.
To provide States with additional time to adjust to this change,
and to provide States with additional time to enact conforming
legislation each year, the agencies will also extend from July 1 to
July 15, the date by which certifications must be received.
The interim final rule did not specify the date by which grant
funds would be distributed to the States. In its comments, IDOT
recommends an early distribution date (in July), to assist the States
in their ability to obligate the funds by September 30. The agencies
appreciate IDOT's concerns, and hope to make a distribution this fiscal
year during the month of July. Any State that has qualified on the
basis of a law that has been enacted, but is not yet effective,
however, will not receive its distribution of funds until the law has
gone into effect. Should the law fail to become effective, the agency
would redistribute the funds to all eligible States.
The interim final rule also did not set forth procedures to ensure
the efficient administration of funds. Due to the need to accommodate
both Federal-aid Highway and Highway Safety interests, the agencies
have added language to the section on Award Procedures, specifying the
joint involvement of State Department of Transportation and Highway
Safety officials. The officials will provide written notification of
their funding decisions to the agencies, identifying the amounts of
apportioned funds to be obligated to highway safety activities and to
Federal-aid highway activities. This process will permit account
entries to be made.
Finally, the interim final rule contained a separate provision
regarding the submission of State certifications in FY 1998. Since this
provision is now obsolete, it has been removed from the regulations.
Regulatory Analyses and Notices
Executive Order 12778 (Civil Justice Reform)
This final rule will not have any preemptive or retroactive effect.
The enabling legislation does not establish a procedure for judicial
review of final rules promulgated under its provisions. There is no
requirement that individuals submit a petition for reconsideration or
other administrative proceedings before they may file suit in court.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The agencies have determined that this action is a significant
regulatory action within the meaning of Executive Order 12866 and is
significant within the meaning of Department of Transportation
Regulatory Policies and Procedures. This determination is based on a
finding that the rule is likely to have an annual effect on the economy
of $100 million or more in FY's 2002 and 2003. A sum of $100 million is
authorized for this program in FY 2002 and $110 million is authorized
in FY 2003. It is likely that these sums will be awarded to qualifying
States under the section 163 program in those fiscal years.
Accordingly, an economic assessment has been prepared.
The economic assessment concludes that the costs to the States of
obtaining the funding under the Section 163 program, which include the
administrative costs of submitting a certification that the State has
enacted and is enforcing the law, are minimal. In addition, it finds
that the costs to States to enact and publicize new 0.08 BAC per se
laws will not be significant, and the costs to enforce these laws need
not be different than those incurred by States to enforce their current
impaired driving laws.
However, the economic assessment notes that it is expected that at
least some States will increase enforcement efforts when their new laws
become effective, and arrests and prosecutions are likely to increase
for drivers with a BAC at 0.08 and above. Since many States have self-
sufficient programs supported by fines for the post-conviction phase of
their programs, the economic assessment concludes that any additional
activity during this phase of their programs, will not result in
additional costs to the States.
While it is difficult to isolate the effects that a national 0.08
BAC per se standard would have, the economic assessment indicates that
a study conducted by the Boston University School of Public Health,
which was published in the September 1996 issue of the American Journal
of Public Health estimated that 500-600 alcohol-related highway deaths
would be prevented each year if all States lowered their BAC limits to
0.08 BAC. Such a reduction in deaths would represent a 4 percent
decrease in alcohol-related deaths nationwide and would result in cost
savings of approximately $1.5 billion each year. Copies of the economic
assessment are available to the public in the docket for this
rulemaking action.
The agencies received no comments regarding the economic
assessment. Accordingly, no changes to this document are required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), the agencies have evaluated the effects of this
action on small entities. Studies to date have not shown that 0.08 BAC
per se laws have affected alcohol consumption in any of the five States
analyzed. Thus, there should be no noticeable impact on small
businesses that sell and serve alcohol. Since this interim final rule
will apparently affect only State governments, it will not have any
effect on small businesses. Thus, we certify that this action will not
have a
[[Page 35573]]
significant impact on a substantial number of small entities and find
that the preparation of a Regulatory Flexibility Analysis is
unnecessary.
Paperwork Reduction Act
This action does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act of 1980, 44
U.S.C. Chapter 35, as implemented by the Office of Management and
Budget (OMB) in 5 CFR Part 1320.
National Environmental Policy Act
The agencies have analyzed this action for the purpose of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
have determined that it will not have any significant impact on the
quality of the human environment.
The Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (Public Law 104-4)
requires agencies to prepare a written assessment of the costs,
benefits and other effects of final rules that include a Federal
mandate likely to result in the expenditure by State, local or tribal
governments, in the aggregate, or by the private sector, of more than
$100 million annually. This interim final rule does not meet the
definition of a Federal mandate. It is a voluntary program in which
States can choose to participate, solely at their option. The costs to
States to qualify for participation in this program are minimal, and
will result in annual expenditures that will not exceed the $100
million threshold. Moreover, States that choose to participate in this
program will receive Federal incentive grants, which will provide funds
for activities that are eligible under Title 23 of the United States
Code.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this action does not have sufficient federalism implications to
warrant the preparation of a federalism assessment. Accordingly, the
preparation of a Federalism Assessment is not warranted.
List of Subjects in 23 CFR Part 1225
Alcohol and alcoholic beverages, Grant programs, Transportation,
Highway safety.
In consideration of the foregoing, the interim final rule published
in the Federal Register of September 3, 1998, 63 FR 46886, adding a new
Part 1225 to chapter II of Title 23 of the Code of Federal Regulations,
is adopted as final, with the following changes:
PART 1225--OPERATION OF MOTOR VEHICLES BY INTOXICATED PERSONS
1. The authority citation for Part 1225 continues to read as
follows:
Authority: 23 U.S.C. 163; delegation of authority at 49 CFR 1.48
and 1.50.
2. Section 1225.4 is amended by revising paragraph (a)(1), removing
paragraph (a)(6), and revising paragraph (a)(5) to read as follows:
Sec. 1225.4 General requirements.
(a) * * *
(1) To qualify for a first-year grant under 23 U.S.C. 163, a State
must submit a certification by an appropriate State official, that the
State has enacted a 0.08 BAC per se law that conforms to 23 U.S.C. 163
and Sec. 1225.5 of this part and will become effective and be enforced
in the current fiscal year and that the funds will be used for eligible
projects and programs.
(i) If the State's 0.08 BAC per se law is currently in effect and
is being enforced, the certification shall be worded as follows:
(Name of certifying official), (position title), of the (State
or Commonwealth) of ______, do hereby certify that the (State or
Commonwealth) of ______ has enacted and is enforcing a 0.08 BAC per
se law that conforms to 23 U.S.C. 163 and 23 CFR 1225.5, (citations
to State law), and that the funds received by the (State or
Commonwealth) of ______ under 23 U.S.C. 163 will be used for
projects eligible for assistance under Title 23 of the United States
Code, which include highway construction as well as highway safety
projects and programs.
(ii) If the State's 0.08 BAC per se law is not currently in effect,
but will become effective and be enforced before the end of the current
fiscal year, the certification shall be worded as follows:
(Name of certifying official), (position title), of the (State
or Commonwealth) of ______, do hereby certify that the (State or
Commonwealth) of ______ has enacted a 0.08 BAC per se law that
conforms to 23 U.S.C. 163 and 23 CFR 1225.5, (citations to State
law), and will become effective and be enforced as of (effective
date of the law), and that the funds received by the (State or
Commonwealth) of ______ under 23 U.S.C. 163 will be used for
projects eligible for assistance under Title 23 of the United States
Code, which include highway construction as well as highway safety
projects and programs.
* * * * *
(5) To qualify for grant funds in FY 1999 or in a subsequent fiscal
year, certifications must be received by the agencies not later than
July 15 of that fiscal year.
* * * * *
3. Section 1225.6 is revised to read as follows:
Sec. 1225.6 Award procedures.
(a) In each Federal fiscal year, grant funds will be apportioned to
eligible States upon submission and approval of the documentation
required by Sec. 1225.4(a) and subject to the limitations in
Sec. 1225.4(b). The obligation authority associated with these funds is
subject to the limitation on obligations pursuant to section 1102 of
TEA 21.
(b) As soon as practicable after the apportionment in a fiscal
year, but in no event later than September 30 of the fiscal year, the
Governor's Representative for Highway Safety and the Secretary of the
State's Department of Transportion for each State that receives an
apportionment shall jointly identify, in writing to the appropriate
NHTSA Regional Administrator and FHWA Division Administrator, the
amounts of the State's apportionment that will be obligated to highway
safety program areas and to Federal-aid highway projects.
Issued on: June 25, 1999.
Kenneth R. Wykle,
Administrator, Federal Highway Administration.
Ricardo Martinez,
Administrator, National Highway Traffic Safety Administration.
[FR Doc. 99-16747 Filed 6-28-99; 8:45 am]
BILLING CODE 4910-59-P
