Incentive Grant Criteria for Drunk Driving Prevention Programs

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

23 CFR Part 1313

[Docket No. 89-02; Notice 6]

RIN 2127-AD01

Incentive Grant Criteria for Drunk Driving Prevention Programs

AGENCY: National Highway Traffic Safety Administration (NHTSA)

Department of Transportation.

ACTION: Interim final rule; request for comments.

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SUMMARY: This notice amends Part 1313 with respect to the criterion for

a supplemental grant for States that deem persons under age 21 who

operate a motor vehicle with a BAC of 0.02 or greater to be driving

while intoxicated. The amendment reflects the agency's experience

reviewing State laws under this grant criterion during fiscal years

1992-1994 and will provide States with additional flexibility in their

ability to qualify for funds under this supplemental grant.

The agency is issuing the amendment as an interim final rule to

provide guidance to the States before the end of fiscal year 1994.

NHTSA requests comments on the rule. The agency will publish a notice

responding to the comments received and, if appropriate, will amend

provisions of the regulation.

DATES: This interim final rule becomes effective August 9, 1994.

Comments on this interim rule are due no later than October 11, 1994.

ADDRESSES: Written comments should refer to the docket number and the

number of this notice and be submitted (preferably in ten copies) to:

Docket Section, National Highway Traffic Safety Administration, Room

5109, Nassif Building, 400 Seventh Street, S.W., Washington, D.C.

20590. (Docket hours are from 9:30 a.m. to 4 p.m.)

FOR FURTHER INFORMATION CONTACT:

Ms. Marlene Markison, Chief, Program Support Staff, NRO-10, National

Highway Traffic Safety Administration, 400 Seventh Street, S.W.,

Washington, DC 20590; telephone (202) 366-0166 or Mr. James Hedlund,

Director, Office of Alcohol and State Programs, NTS-20, National

Highway Traffic Safety Administration, 400 Seventh Street, S.W.,

Washington, D.C. 20590, telephone (202) 366-2753.

SUPPLEMENTARY INFORMATION: The Anti-Drug Abuse Act of 1988, Pub. L.

100-690, was signed into law on November 18, 1988. Subtitle A of Title

IX of the Act, entitled the Drunk Driving Prevention Act of 1988,

amended chapter 4 of title 23, United States Code, by adding section

410, which established an incentive grant program under which States

could qualify for basic and supplemental grant funds for adopting and

implementing comprehensive drunk driving prevention programs which met

certain specified statutory criteria.

On January 12, 1990, NHTSA published a final rule in the Federal

Register (55 FR 1185) to implement this new incentive grant program, 23

CFR Part 1313. When the regulation had been in place for nearly a year,

and no State had submitted an application to NHTSA for funding,

Congress made technical corrections to the statutory requirements

contained in section 410. These technical corrections, contained in

section 336 of Public Law 101-516, were signed into law on November 5,

1990. Corresponding changes were made to Part 1313 by final rule

published in the Federal Register on May 1, 1991 (56 FR 19930). The

agency approved two State applications for section 410 funding under

this final rule.

Section 2004 of the Intermodal Surface Transportation Efficiency

Act of 1991 (ISTEA), signed into law on December 18, 1991, further

revised section 410. These revisions, among other things, provided for

additional basic and supplemental grant criteria and changed the

formula used to determine the amount of section 410 incentive grants.

An interim final rule (57 FR 29002) was published in the Federal

Register on June 30, 1992, to change Part 1313 to conform to these

amendments, and to request public comments.

On October 6, 1992, the Department of Transportation and Related

Agencies Appropriations Act for 1993 (P.L. 102-388) was signed into

law. It contained additional technical corrections to section 410. On

April 23, 1993, a final rule (58 FR 21649) was published responding to

the comments submitting to the June 1992 interim final rule and the

October 1992 technical corrections.

During FY 1992, the agency received section 410 grant applications

from 18 States; 17 were approved. During FY 1993, the agency received

section 410 grant applications from 24 States; all of these

applications were approved. NHTSA continues to receive and approve

State applications in FY 1994.

Section 410 Criteria

To qualify for funding under section 410, a State must qualify

first for a basic grant by meeting five or more out of six basic

criteria. The criteria include: an expedited driver's license

suspension or revocation system; a per se law (at 0.10 BAC in the first

three fiscal years in which the State receives a grant and 0.08 BAC in

subsequent years); a statewide program for stopping motor vehicles; a

self-sustaining drunk driving prevention program; a minimum drinking

age prevention program; and mandatory sentencing requirements.\1\

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\1\To receive a basic grant, States that qualified for section

410 funding in FY 1992 need only demonstrate compliance with four

out of the five criteria in effect at that time, namely all the

basic criteria listed above except for mandatory sentencing.

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If the State qualifies for a basic grant, it may also seek to

qualify for funds under one or more of seven supplemental grants. The

supplemental grants include: per se law for persons under age 21;

program making unlawful open containers and consumption of alcohol in

motor vehicles; suspension of registration and return of license plate

program; mandatory alcohol concentration testing program; drugged

driving prevention; per se level of 0.08 (in the first three fiscal

years in which the State receives a grant); and video equipment

program.

Per se Law for Persons Under Age 21 Supplemental Grant

To qualify for the ``per se law for persons under age 21''

supplemental grant, Section 410 requires that the State must be

``eligible for a basic grant in the fiscal year and [provide] that any

person under age 21 with a blood alcohol concentration of 0.02 percent

or greater when driving a motor vehicle shall be deemed to be driving

while intoxicated.''

In its interim final rule, dated June 30, 1992, NHTSA explained:

In other words, States must establish a 0.02 per se law for

persons under the age of 21, that makes driving with a BAC of 0.02

percent or above itself an offense for such persons. (57 F.R. 29007)

The agency discussed specifically, in the interim final rule, that

it would treat the 0.02 per se criterion under section 410 differently

than it had treated the 0.10 per se criterion under its section 408

program. It explained that, under section 408, States were required to

establish 0.10 as the per se level for purposes of both criminal and

licensing sanctions. NHTSA clarified that it did not expect States,

under section 410, to apply criminal sanctions to these underage

drivers at the 0.02 level. To qualify under this supplemental grant,

NHTSA stated that it was sufficient for States to apply licensing

sanctions to these offenders:

Under section 408, to be eligible for a basic grant, States are

required to establish 0.10 as the illegal per se level for the

purpose of both administrative and criminal sanctions. The section

410 criteria for a basic grant, described elsewhere in today's final

rule, continue to call for States to adopt per se levels at 0.10 and

0.08 for administrative and criminal sanctions. However, the agency

believes it is unwarranted to require that States apply criminal

sanctions to youth found to be driving with an alcohol concentration

level of 0.02. NHTSA believes that licensing sanctions are

sufficiently effective for these offenses. (57 FR 29008)

Accordingly, the regulation provided that, to qualify for this

supplemental grant, a State must ``provide that any person under age 21

with an alcohol concentration of 0.02 percent or greater when driving a

motor vehicle shall be deemed to be driving while intoxicated for the

purpose of administrative sanctions.''

To demonstrate compliance with the criterion, the regulation

provides that a State must ``submit a copy of its law adopting this

requirement.''

NHTSA has received a number of applications for funding and

requests for interpretation under this provision of the regulation.

Based on the language in this provision, we determined that, to qualify

for a ``per se law for persons under age 21'' supplemental grant, a

State's law must provide that 0.02 BAC underage offenders must be

treated the same as other (0.10) DUI offenders would be treated under

the State's administrative license revocation (ALR) law. However, a

number of the States that have applied for this supplemental grant

either did not have an ALR law at all or did not have an ALR law that

qualifies under section 410. NHTSA determined that these States need

not provide for identical sanctions, but their laws must require a

minimum 30-day license suspension as an administrative sanction for

0.02 underage offenders, and the suspension must be mandatory.

Changes to the Regulation

Some States have objected to the application of this portion of

Part 1313, and the agency has become concerned that the regulation, as

currently written, creates some inequity and unnecessary inflexibility.

For example, under the regulation, a State with an ALR law that

qualifies under section 410 would not be eligible to receive a

supplemental grant for a law that establishes a 60-day driver's license

sanction for persons under age 21 who operate a motor vehicle with a

BAC of 0.02. (The State would not be eligible because, to qualify for

section 410, its ALR law would be required to establish a 90-day

suspension for first offenders one a one-year suspension for subsequent

offenders. By applying a 60-day suspension to underage offenders at

0.02, the State would not be treating these offenders as other (0.10

or, in some cases, 0.08) DUI offenders.)

However, a State without an ALR law, or a State with an ALR that

does not qualify under section 410 would be eligible to receive a

supplemental grant for a law that establishes a 60-day driver's license

sanction for persons under age 21 who operate a motor vehicle with a

BAC of 0.02. (The State would be eligible because the State need only

provide for a mandatory 30-day suspension.)

To rectify this inequity, this interim final rule amends Part 1313

to provide that any State (whether it has an ALR law that conforms to

section 410 or not) need only provide for a 30-day suspension or

revocation for persons under the age of 21 who operate a motor vehicle

with a BAC of 0.02 or greater. The 30-day suspension or revocation

period must be a mandatory, hard suspension or revocation (i.e., it may

not be subject to hardship, conditional or provisional driving

privileges).

To demonstrate compliance, the regulation currently provides that a

State must submit a copy of its law. Other section 410 criteria, such

as expedited license suspension and mandatory sentencing requirements

provide States with additional flexibility by permitting them to

demonstrate compliance as either ``Law'' or ``Data'' States.

NHTSA has decided to afford this flexibility to States under this

criterion as well. Accordingly, this interim final rule amends the

regulation to provide that States may demonstrate compliance with the

``per se law for persons under age 21'' supplemental grant as either

``Law'' or ``Data'' States.

Under the amended regulation, a ``Law State'' is a State that has

laws, regulations, or binding policy directives which, on their face,

meet each element of the criterion. A ``Data State'' is a State that

has laws, regulations, or binding policy directives which, on their

face, meet each element, except that they need not specifically provide

for a 30-day hard suspension.

To demonstrate compliance, under the regulation as amended, a ``Law

State'' must submit only the law, regulation or binding policy

directive itself governing its 0.02 per se law for persons under age

21. It need not submit data. To demonstrate compliance, a ``Data

State'' must submit its law, regulation, or binding policy directive

governing its 0.02 per se law for persons under age 21. It must also

submit data demonstrating that the average length of hard suspensions

for offenders under the State's per se law for persons under age 21

meets or exceeds 30 days.

In the course of reviewing State applications and requests for

interpretations, NHTSA has been asked to consider whether it would

accept 0.02 ``per se'' laws which require conviction prior to imposing

a license suspension or revocation, or laws which provide that the 0.02

BAC offense may be enforced only as a secondary violation, when the

driver of a motor vehicle has been cited for a violation of some other

offense.

To qualify under this supplemental criterion, the regulation as

amended requires that a State provide for the temporary debarring of

all driving privileges for a term of not less than 30 days. It does not

require that the debarring of driving privileges occur through

``administrative sanctions.'' Accordingly, the agency will accept State

laws that require a conviction prior to suspension or revocation. It

will also accept State laws that provide for an administrative

suspension or revocation. The agency will not accept, however,

secondary enforcement laws. A secondary enforcement provision in a 0.02

``per se'' law will render a State ineligible under this supplemental

criterion as either a ``Law'' or a ``Data State.''

Interim Final Rule

This notice is published as an interim final rule, without prior

notice and opportunity to comment. Because this regulation relates to a

grant program, the requirements of the Administrative Procedure Act

(APA), 5 U.S.C. 553, are not applicable. Moreover, even if the notice

and comment provisions of the APA did apply, the agency believes there

is good cause for finding that providing notice and comment in

connection with this rulemaking action is impracticable, unnecessary

and contrary to the public interest, since it would prevent States from

qualifying for grant funds in fiscal year 1994.

This finding is based also on the agency's view that the amendments

made in this interim final rule rectify an inequity in the current

regulation, provide additional flexibility for the States and are

consistent with other provisions in the section 410 implementing

regulation, which was promulgated subject to notice and a full

opportunity for the public to comment. Accordingly, there would be

little benefit gained by following the notice and comment procedures

with regard to the revisions made by today's interim final rule.

As an interim final rule, this regulation is fully in effect and

binding after its effective date. No further regulatory action by NHTSA

is necessary to make the rule effective. However, in order to benefit

from comments which interested parties and the public may have, the

agency is requesting that comments be submitted to the docket for this

notice. All comments submitted in response to this notice, in

accordance with the procedures outlined below, will be considered by

the agency. Following the close of the comment period, NHTSA will

publish a notice responding to the comments and, if appropriate, NHTSA

will amend the provisions of this rule.

Written Comments

Interested persons are invited to comment on this interim final

rule. It is requested, but not required, that ten copies be submitted.

All comments must be limited to 15 pages in length. Necessary

attachments may be appended to those submissions without regard to the

15-page limit. (49 CFR Sec. 553.21.) This limitation is intended to

encourage commenters to detail their primary arguments in a concise

fashion.

Written comments to the public docket must be received by October

11, 1994. All comments received before the close of business on the

comment closing date, will be considered and will be available for

examination in the docket at the above address before and after that

date. To the extent possible, comments filed after the closing date

will also be considered. However, the rulemaking action may proceed at

any time after that date. Following the close of the comment period,

NHTSA will publish a notice responding to the comments and, if

appropriate, NHTSA will amend the provisions of this rule. NHTSA will

continue to file relevant material in the docket as it becomes

available after the closing date, and it is recommended that interested

persons continue to examine the docket for new material.

Those persons desiring to be notified upon receipt of their

comments in the docket should enclose, in the envelope with their

comments, a self-addressed stamped postcard. Upon receiving the

comments, the docket supervisor will return the postcard by mail.

Copies of all comments will be placed in Docket 89-02; Notice 6 of

the NHTSA Docket Section in Room 5109, Nassif Building, 400 Seventh

Street, SW., Washington, DC 20590.

This interim final rule does not have any preemptive or retroactive

effect. It imposes no requirements on the States, but rather encourages

States to adopt and implement comprehensive drunk driving prevention

program, by offering incentive grant funds. 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.

Regulatory Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

NHTSA has considered the impact of this rulemaking action under

E.O. 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.'' This action has been determined to be not ``significant''

under the Department of Transportation's regulatory policies and

procedures.

State participation in the section 410 program is voluntary.

Accordingly, a full regulatory evaluation is not necessary. Moreover,

this rule makes only minor amendments to the existing section 410

implementing regulation to provide additional flexibility to States.

When the agency originally promulgated a regulation to implement

the section 410 program on January 12, 1990 (55 FR 1185), it determined

that the rulemaking should be classified as significant under the

Department's regulatory policies and procedures. A regulatory

evaluation was prepared at that time and placed in the public docket

(Docket No. 89-02; Notice 2). Persons interested in reviewing this

document should request it by writing to NHTSA's Docket Section, room

5109, 400 Seventh Street, S.W., Washington, D.C. 20590, or by calling

the Docket Section at (202) 366-4949.

Regulatory Flexibility Act

Since this matter relates to grants, the notice and comment

requirements established in the Administrative Procedure Act, 5 U.S.C.

553, are not applicable. Because the agency is not required to publish

a notice of proposed rulemaking regarding this rule, the agency is not

required to analyze the effect of this rule on small entities, in

accordance with the Regulatory Flexibility Act. The agency has

nonetheless evaluated the effects of this interim final rule on small

entities. Based on the evaluation, I certify that this rule will not

have a significant economic impact on a substantial number of small

entities. States will be recipients of any funds awarded under the

regulation. Accordingly, the preparation of a Regulatory Flexibility

Analysis is unnecessary.

Paperwork Reduction Act

The requirements relating to the regulation that this rule is

amending that States retain and report to the Federal government

information which demonstrates compliance with drunk driving prevention

incentive grant criteria, 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 through 11/30/95;

OMB No. 2127-0501.

National Environmental Policy Act

The agency has analyzed this action for the purpose of the National

Environmental Policy Act, and has determined that it will not have a

significant effect on the human environment.

Executive Order 12612 (Federalism)

This rulemaking action has been analyzed in accordance with the

principles and criteria contained in Executive Order 12612, and it has

been determined that it will have no federalism implication that

warrants the preparation of a federalism assessment. The section 410

grant program is entirely optional for the States. Moreover, this

action provides increased flexibility to the States.

Executive Order 12778 (Civil Justice Reform)

This amendment to the regulation does not have any preemptive or

retroactive effect. It imposes no requirements on the States, but

rather encourages States to establish drunk driving prevention programs

by providing incentive grant funds. Participation in this program is

entirely optional. 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.

List of Subjects in 23 CFR Part 1313

Alcohol and alcoholic beverages, Drugs, Grant programs,

Transportation, Highway safety.

In consideration of the foregoing, NHTSA amends 23 CFR Part 1313 as

set forth below.

PART 1313--INCENTIVE GRANT CRITERIA FOR DRUNK DRIVING PREVENTION

PROGRAMS

1. The authority citation for Part 1313 continues to read as

follows:

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

1.50.

2. Section 1313.6(a) is revised to read as follows:

Sec. 1313.6 Requirements for supplemental grants.

(a) Per se law for persons under age 21. (1) To qualify for a

supplemental grant of 5 percent of the State's 23 U.S.C. 402

apportionment for FY 1992, a State must have in place and implement or

adopt and implement a drunk driving prevention program which meets the

requirements of Sec. 1313.5, and provide that any person under age 21

with an alcohol concentration of 0.02 percent or greater when driving a

motor vehicle shall be deemed to be driving while intoxicated and shall

be subject to the temporary debarring of all driving privileges for a

term of not less than 30 days.

(2)(i) To demonstrate compliance in the first and in subsequent

years the State receives a supplemental grant under this paragraph, a

Law State shall submit a copy of the law, regulation or binding policy

directive implementing or interpreting the law or regulation, which

provides for each element of the per se law for persons under age 21

criterion.

(ii) For the purpose of this paragraph, ``Law State'' means a State

that has a law, regulation or binding policy directive implementing or

interpreting an existing law or regulation which provides for each

element of the per se law for persons under age 21 criterion.

(3)(i) To demonstrate compliance in the first and in subsequent

years the State receives a supplemental grant under this paragraph, a

Data State shall submit a copy of the law, regulation or binding policy

directive implementing or interpreting the law or regulation, which

provides for each element of the per se law for persons under age 21

criterion and data showing that the average length of the suspension

term for offenders under this law meets or exceeds 30 days.

(ii) The State can provide the necessary data based on a

representative sample. Data on the average length of the suspension

term must not include license suspension periods which exceed the terms

actually prescribed by the State, and must reflect terms only to the

extent that they are actually completed.

(iii) For the purpose of this paragraph, ``Data State'' means a

State that has a law, regulation or binding policy directive

implementing or interpreting an existing law or regulation which

provides for each element of the per se law for persons under age 21

supplemental criterion, except that it does not specifically provide

for the temporary debarring of all driving privileges for a term of not

less than 30 days.

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Issued on: August 4, 1994.

Christopher A. Hart,

Deputy Administrator, National Highway Traffic Safety Administration.

[FR Doc. 94-19430 Filed 8-4-94; 4:14 pm]

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