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 7]

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; reopening of comment period.

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SUMMARY: On August 9, 1994, (59 FR 40471) NHTSA published an interim

final rule, amending the criterion in part 1313 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 interim final rule requested comments on the amendment. Today's

notice reopens the comment period to provide States, national

organizations and other interested persons an additional opportunity to

comment on the amendment.

DATES: The comment period for NHTSA Docket No. 89-02; Notice 6 is

reopened so that it closes May 23, 1995.

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, SW., Washington, DC 20590.

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

FOR FURTHER INFORMATION CONTACT: Ms. Marlene Markison, Chief, Program

Support Staff, NSC-10, National Highway Traffic Safety Administration,

[[Page 15480]] 400 Seventh Street SW., Washington, DC 20590; telephone

(202) 366-2121 or Dr. James Hedlund, Director, Office of Alcohol and

State Programs, NTS-20, National Highway Traffic Safety Administration,

400 Seventh Street, SW., Washington, DC 20590, telephone (202) 366-

2753.

SUPPLEMENTARY INFORMATION: The section 410 program, established in

title 23, United States Code, section 410, as amended, is an incentive

grant program under which States may qualify for basic and supplemental

grant funds for adopting and implementing comprehensive drunk driving

prevention programs that meet specified statutory criteria.

To qualify for basic grant funds under section 410, a State must

meet five 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

\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.

If a 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 a per se law for persons under age 21, a

program making unlawful open containers and consumption of alcohol in

motor vehicles, a suspension of registration and return of license

plate program, a mandatory alcohol concentration testing program, a

drugged driving prevention, a per se level of 0.08 (in the first three

fiscal years in which the State receives a grant), and a 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 an 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 FR 29007)

The interim final rule amended the regulation to provide 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.''

The agency interpreted this criterion to require that 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, for the State to qualify

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

Further, the agency determined that States that did not have an ALR

law at all or did not have an ALR law that qualifies under section 410

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 objected to the application of this portion of part

1313. In response to these objections, NHTSA published an interim final

rule on August 9, 1994 (59 FR 40470), amending 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).

The interim final rule also amended the regulation to permit States

to demonstrate compliance with this criterion as either ``Law'' or

``Data'' States. The amended regulation defined a ``Law State'' as a

State that has laws, regulations, or binding policy directives which,

on their face, meet each element of the criterion. It defined a ``Data

State'' as 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.

Under the interim final rule, the regulation was amended to provide

that, to demonstrate compliance, 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.

Comments Received

NHTSA received four comments in response to the interim final rule.

The commenters included the Michigan State Police Department, the

Michigan Department of State, the National Association of Governors'

Highway Safety Representatives (NAGHSR) and Advocates for Highway and

Auto Safety (Advocates).

Both comments from the State of Michigan objected to the imposition

of legislative mandates in the section 410 program. The Michigan

commenters favored the use of performance-based criteria instead.

Michigan has raised this comment previously regarding other aspects of

the section 410 program. However, section 410 does not permit the

agency to disregard the statutory criteria and qualify a State based

solely on performance.

The Michigan Department of State Police and NAGHSR objected to the

30-day hard suspension requirement. These commenters were concerned

that, by defining this requirement, NHTSA was making the criterion

stricter, thereby making it more difficult for States to qualify for

section 410 funds. NAGHSR also objected to the interim final rule's

provision that States ``must be a Law or Data State in order to show

compliance.''

NHTSA wishes to clarify that the changes that were made to the

regulation in the interim final rule made it easier, not more

difficult, for States to qualify for the 0.02 supplemental grant. Prior

to the issuance of the interim rule, to qualify for this grant, States

with ALR laws that qualified under section 410 were required to impose

the same sanctions on 0.02 BAC underage offenders as were imposed on

other (0.10 or, in some States, 0.08) DUI offenders. These sanctions

include a 90-day suspension for first offenders (30 days of which must

be hard for those who fail the test and all of which must be hard for

those who refuse to submit to the test) and a one-year hard suspension

for repeat offenders.

Further, prior to the issuance of the interim rule, to demonstrate

compliance for this grant, States could only qualify by submitting a

conforming law (i.e., as [[Page 15481]] Law States). The interim rule

provided additional flexibility by permitting States with laws that

contain exemptions or some other provision that did not fully comply

with the criterion, to demonstrate compliance through the use of data.

As a result of the changes made in the interim final rule, three

States qualified for funding under the 0.02 supplemental criterion that

were not able to qualify previously. These States included California,

Ohio and Virginia.

Advocates did not oppose the amendment contained in the interim

rule, but expressed some reservations. Advocates stated, ``We are not

convinced * * * that a 30-day period of suspension is sufficient to

make an effective impression on under age 21 drivers. * * * We believe

that there is a strong argument for requiring a 90-day suspension for

under age 21 supplemental grants even for states that meet the basic

grant criteria without an ALR law.''

NHTSA adopted the 30-day hard suspension criterion for both

administrative license suspension laws (for first offenders who submit

to and fail a chemical test) and for 0.02 laws for youth because that

is the sanction that is recommended in the Uniform Vehicle Code

concerning license suspension laws (see Sec. 6-215, Limited License)

and because most States with demonstrated effective license suspension

laws provide for a 30-day hard suspension period. NHTSA is not aware of

any evidence that State zero tolerance laws which provide for a 90-day

hard suspension are any more effective than State zero tolerance laws

which provide for a 30-day hard suspension. Of course, States that

provide for a hard suspension period of longer than 30 days could

qualify for grant funding under this criterion.

Both NAGHSR and Advocates also objected to NHTSA's use of an

interim final rule without providing for prior notice and an

opportunity for public comment. As explained in that document, the

changes were published as an interim final rule, because the regulation

relates to a grant program, to which the requirements of the

Administrative Procedure Act (APA), 5 U.S.C. 553, are not applicable.

Moreover, the agency explained that, even if the notice and comment

provisions of the APA did apply, there is good cause for finding that

providing notice and comment in connection with the rulemaking action

was impracticable, unnecessary and contrary to the public interest,

since it would have prevented States from qualifying for grant funds in

fiscal year 1994.

The agency's finding was based also on its view that the amendments

made in the interim final rule rectified an inequity in the regulation,

provided additional flexibility for the States and were 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.

The agency stated there would be little benefit gained by following

the notice and comment procedures with regard to the revisions made by

the interim final rule.

NHTSA believes its assessment was correct, as demonstrated by the

small number of comments received in response to the interim final

rule. However, NHTSA wishes to ensure that the public has a full

opportunity to be heard. Therefore, the agency has decided to reopen

the comment period to provide the public with an additional opportunity

to comment on the agency's action.

The regulation, as amended by the interim final rule, remains in

effect and binding. Following the close of the reopened comment period,

NHTSA will publish a notice responding to any additional comments it

receives and, if appropriate, will amend the provisions of this rule.

Issued on: March 20, 1995.

Ricardo Martinez,

Administrator, National Highway Traffic Safety Administration.

[FR Doc. 95-7264 Filed 3-24-95; 8:45 am]

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