Operation of Motor Vehicles by Intoxicated Persons

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

Federal Highway Administration

23 CFR Part 1225

[Docket No. NHTSA-98-4394]

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: Interim final rule; request for comments.

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SUMMARY: This interim final rule implements a new program established

by the Transportation Equity Act for the 21st Century (TEA 21), under

which 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

interim final rule solicits public comments.

DATES: This interim final rule becomes effective on September 3, 1998.

Comments must be received by October 19, 1998.

ADDRESSES: Written comments should refer to the docket number of this

notice and be submitted (preferably two copies) to: Docket Management,

Room PL-401, National Highway Traffic Safety Administration, Nassif

Building, 400 Seventh Street, S.W., Washington, D.C. 20590. (Docket

hours are Monday-Friday, 10 a.m. to 5 p.m., excluding Federal

holidays.)

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, HHS-10, 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).''

This 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

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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 1996, alcohol was involved in approximately 41 percent of fatal

traffic crashes. Every 30 minutes, someone in this country dies in an

alcohol-related crash. In 1994, alcohol-involved crashes resulted 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 an alcohol

concentration measured at or above the established legal limit.

In 32 of the States with illegal per se laws and in the District of

Columbia, the legal limit is 0.10 percent blood alcohol concentration

(BAC). Sixteen States have enacted laws that establish 0.08 BAC as the

legal limit. (Fifteen of these laws are currently in effect. One is due

to become effective on January 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.

The effect of California's 0.08 law was analyzed, for example, 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 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 they 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. Nine 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 drinks 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 drinks 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.

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.

Adoption of 0.08 BAC Law

Section 163 specifically 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

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committed a per se offense of driving while intoxicated or an

equivalent per se offense.

Consistent with other grant programs that are administered by the

agencies, a State's law must have been both passed and made effective

to permit a State to qualify for funding based on that law. In

addition, the State must have begun to implement the law.

Compliance Criteria

To qualify for funding under this program, Section 163 provides

that a State must 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.

Section 163 does not define any of these terms, and it does not

contain many details about what conforming State laws must provide. For

example, it does not specify the penalties that must be imposed on

offenders who violate 0.08 BAC per se laws. Since Section 163 does not

prescribe the penalties that must be imposed on offenders who violate

0.08 BAC laws, the agencies have not specified any minimum penalties in

the implementing regulation.

The agencies believe that, while Congress intended to encourage all

States to enact and enforce effective 0.08 BAC laws, it also intended

to provide States with sufficient flexibility to develop laws that suit

their particular conditions. Accordingly, the agencies' implementing

regulation prescribes only a limited number of basic elements that

State laws must meet to qualify for these incentive grant funds.

This interim final rule defines those basic elements. The elements

are described below:

1. Any Person

To qualify for funds under this program, 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

To qualify for funds under this program, 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. If a State were

to enact a law that set a lower percentage (such as 0.07 percent) as

the legal limit, such a law would also conform to the Federal

requirement, since all persons with a BAC of 0.08 or greater would be

covered.

3. Per Se Law

To qualify for funds under this program, 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.

The agencies are aware of two States (Massachusetts and South

Carolina) that have laws that make it unlawful for a person to drive

while under the influence of alcohol, but do not establish a BAC limit

at or above which it is illegal per se to drive. These laws provide

that a BAC of 0.08 percent or above creates an ``inference'' or a

``permissible inference'' that the person committed the offense.

However, since these laws do not make the operation of a motor vehicle

with a BAC of 0.08 a ``per se'' offense, they do not conform to the

Federal requirement.

In addition, some States have ``per se'' laws at the 0.10 BAC

level, and provide that a lower BAC level, such as 0.08 or even lower,

creates a presumption or can be used as prima facie evidence of a

violation of an impaired driving offense. Again, since these States do

not have laws that make the operation of a motor vehicle with a BAC of

0.08 a ``per se'' offense, they do not conform to the Federal

requirement.

4. Primary Enforcement

To qualify for funds under this program, 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

To qualify for funds under this program, 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.

For example, if a State were to include a 0.08 BAC per se provision

in its ALR law, but retained a higher BAC (such as 0.10) or a prima

facie (as opposed to a per se) provision in its criminal code, the

State would not qualify for funding under this program. If a State were

to include a conforming 0.08 BAC per se provision in its criminal code,

and the State did not have an ALR law, the State could qualify for

Federal funding.

6. Standard Driving While Intoxicated Offense

To qualify for funds under this program, the State's 0.08 BAC per

se law must be deemed to be or equivalent to the State's standard

driving while intoxicated offense. As explained above, 48 States and

the District of Columbia have ``illegal per se'' laws, under which it

is unlawful, in and of itself, for a person to operate a motor vehicle

with a BAC at or above a specified level. All 50 States, plus the

District of Columbia and Puerto Rico (each of the jurisdictions that

are considered States and therefore are potentially eligible for

funding under the Section 163 program) have non-BAC per se offenses,

under which it is unlawful for a person to operate a motor vehicle

while intoxicated. This non-BAC per se offense is the standard driving

while intoxicated offense in each State.

The agencies recognize that some States do not use the term

``intoxicated'' or ``driving while intoxicated'' in their laws. Some

States use other terms, such as ``driving under the influence of

alcohol'' to describe this offense. Section 163 does not require that a

single term be used. It requires only that operating a motor vehicle

with a BAC of 0.08 be deemed to be a per se offense and (regardless of

the nomenclature used) that it be deemed to be or equivalent to the

``standard'' driving while intoxicated offense in the State.

Most States provide for a single driving while intoxicated offense,

but some States have established more than one offense that relates to

impaired or intoxicated driving. 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''). The State may have a less-serious offense, which

generally will be a ``lesser-included'' offense of the standard driving

while intoxicated offense. (This ``less-serious'' offense is often

referred to as ``driving while impaired.'')

The State of New York, for example, has established a two-tiered

system. ``Driving while intoxicated'' is the ``standard'' offense in

New York. Persons violate the offense by operating

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a vehicle at a BAC of 0.10. They also violate the offense through a

non-BAC per se provision, by operating a vehicle ``while in an

intoxicated condition.'' A person's BAC level is just one piece of

evidence that would be used to prove a violation under this provision.

``Driving while ability impaired'' is the ``less-serious'' offense

in New York. ``Driving while ability impaired'' is not a BAC per se

offense in New York. Persons violate that offense by operating a

vehicle ``while the person's ability to operate such motor vehicle is

impaired by the consumption of alcohol.'' Evidence that a person

registered a BAC of more than 0.05 but not more than 0.07 is considered

relevant evidence, but is not given prima facie effect, in determining

whether the person's ability to operate a motor vehicle was impaired.

Evidence that a person registered a BAC of more than 0.07 but less than

0.10 is considered prima facie evidence that the person's ability to

operate a motor vehicle was impaired. Operating at these BAC levels,

however, is not a per se offense.

Under the agencies' regulation, New York does not presently qualify

for Section 163 funding based on its ``driving while intoxicated'' law,

because a person does not violate the law unless their BAC is 0.10 or

greater. The State's ``driving while ability impaired'' law does not

enable the State to qualify for two reasons. First, it is not a per se

law, and second, it is not the ``standard'' driving while intoxicated

offense in the State. To qualify for Section 163 funding, the State

would be required to amend its ``driving while intoxicated'' law to

cover persons operating a motor vehicle with a BAC of 0.08.

The ``standard'' driving while intoxicated offense, however, will

not necessarily be the most serious drinking and driving offense in the

State. The agencies recognize, for example, that some States have

enacted additional illegal per se offenses that apply additional or

enhanced sanctions to offenders with ``high BAC's'' (in excess of 0.10,

such as at 0.17 or 0.20). In fact, NHTSA's Section 410 program (23

U.S.C. Section 410, as amended by TEA 21), encourages States to enact

such laws. These ``high BAC'' laws will not be considered the

``standard'' driving while intoxicated offense of a State for the

purpose of the Section 163 program.

In States with multiple drinking and driving provisions, the agency

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.

Terms Governing the Incentive Grant Funds

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.

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 encourage the States to consider

eligible highway safety projects and programs when they are deciding

how they will spend these funds.

Since section 163 provides that the Federal share of the cost of a

project funded under this program shall be 100 percent, there is no

State matching requirement for these funds. In addition, the funds

authorized by section 163 shall remain available until expended.

Demonstrating Compliance

Section 163 provides that grants will be awarded to complying

States beginning in fiscal year 1998. To demonstrate compliance with

the provisions of both the statutory and regulatory requirements, each

State must submit a certification in each year that it wishes to

receive a grant.

To receive its first grant under this program, a State must submit

a certification by an appropriate State official that the State has

enacted and is enforcing a 0.08 BAC per se law that conforms to 23

U.S.C. Sec. 163 and Sec. 1225.5 of this Part and that the funds

received by the State under this program 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.

To receive subsequent-year grants under this program, a State must

submit a certification by an appropriate State official, stating either

that the State has amended or has not changed its 0.08 BAC per se law

and that the State is enforcing the law. The certification must also

state that the funds received by the State under this program 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.

First and subsequent-year certifications must include citations to

the State's conforming 0.08 BAC per se law. These citations must

include all applicable provisions of the State's criminal code and, if

the State has an ALR law, all applicable provisions of that law, as

well.

To be eligible for grant funds in FY 1998, States must submit their

certifications no later than September 4, 1998.

To be eligible for grant funds in a subsequent fiscal year, States

must submit their certifications no later than July 1 of that fiscal

year. For example, to be eligible for grant funds in FY 1999, States

must submit their certifications no later than July 1, 1999.

The agencies strongly encourage States to submit their

certifications in advance of the regulatory deadlines. The agencies

also strongly encourage States that are considering 0.08 BAC per se

legislation to request preliminary reviews of such legislation from the

agencies while the legislation is still pending. The agencies would

determine in these preliminary reviews whether the legislation, if

enacted, would conform to the new Federal requirements, thereby

avoiding a situation in which a State unintentionally enacts non-

conforming 0.08 BAC legislation and then is unable to qualify for grant

funds. Requests should be submitted through NHTSA's Regional

Administrators, who will refer the requests to appropriate NHTSA and

FHWA offices for review.

Interim Final Rule

This document is published as an interim final rule. Accordingly,

the new regulations in Part 1225 are fully in effect upon the date of

the document's publication. No further regulatory action by the

agencies is necessary to make these regulations effective.

These regulations have been published as an interim final rule

because insufficient time was available to provide for prior notice and

opportunity for comment. TEA 21 was signed into law on June 9, 1998.

The Act

[[Page 46885]]

authorizes that grant funds be apportioned and obligated, beginning in

fiscal year 1998, which ends on September 30, 1998. To ensure the award

in FY 98 of these grant funds to eligible States, a number of steps

must be taken in a period of less than 90 days. The agencies had to

promulgate and make effective regulations, States must apply for the

funds, the agencies must process those applications and apportion the

incentive grant funds and the States must obligate the funds. These

circumstances make it necessary to implement the statutory requirements

by an interim final rule, rather than by the slower process of notice

and comment rulemaking.

In the agencies' view, the States will not be impeded by the use of

an interim final rule. The procedures that States must follow to apply

for grant funds under this new program are similar to procedures that

States have followed in other grant programs administered by NHTSA and/

or the FHWA. These procedures were established by rulemaking and were

subject to prior notice and the opportunity for comment.

Moreover, the criteria that States must meet to qualify for these

funds are derived from the Federal statute and are similar to the

criteria that the agencies established in their rulemaking action that

implemented 23 U.S.C. Section 161, which established the zero tolerance

requirement, under which persons under the age of 21 who operate a

vehicle at a BAC of 0.02 or greater are deemed to be driving while

intoxicated. The agencies' zero tolerance regulations were subject to

prior notice and the opportunity for comment.

For these reasons, the agencies believe that 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. The agencies also find, for these reasons, that notice

and an opportunity for comment are not required under the Department's

regulatory policies and procedures and that this rule can be made

effective upon publication, pursuant to 5 U.S.C. 808 (P.L. 104-121)

(the Congressional review provisions of the Small Business Regulatory

Enforcement Fairness Act).

The agencies request written comments on these new regulations. All

comments submitted in response to this document will be considered by

the agencies. Following the close of the comment period, the agencies

will publish a document in the Federal Register responding to the

comments and, if appropriate, will make revisions to the provisions of

Part 1225.

Written Comments

Interested persons are invited to comment on this interim final

rule. It is requested, but not required, that two 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 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 November

2, 1998. To expedite the submission of comments, simultaneous with the

issuance of this notice, NHTSA and FHWA will mail copies to all

Governors' Representatives for Highway Safety and State Departments of

Transportation.

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. The agencies 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 who wish 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 98-4394 in Docket

Management, Room PL-401, Nassif Building, 400 Seventh Street, S.W.,

Washington, D.C. 20590.

Regulatory Analyses and Notices

Executive Order 12778 (Civil Justice Reform)

This interim 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 copy of the law and a

certification that the State 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

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the public in the docket for this rulemaking action.

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 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 affects 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 chose 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 accordance with the foregoing, a new Part 1225 is added to

chapter II of Title 23 of the Code of Federal Regulations to read as

follows:

PART 1225--OPERATION OF MOTOR VEHICLES BY INTOXICATED PERSONS

Sec.

1225.1 Scope.

1225.2 Purpose.

1225.3 Definitions.

1225.4 General requirements.

1225.5 Adoption of 0.08 BAC per se law.

1225.6 Award procedures.

Authority: 23 U.S.C. 163; delegation of authority at 49 CFR 1.48

and 1.50.

Sec. 1225.1 Scope.

This part prescribes the requirements necessary to implement

Section 163 of Title 23, United States Code, which encourages States to

enact and enforce 0.08 BAC per se laws.

Sec. 1225.2 Purpose.

The purpose of this part is to specify the steps that States must

take to qualify for incentive grant funds in accordance with 23 U.S.C.

163, and to encourage States to enact and enforce 0.08 BAC per se laws.

Sec. 1225.3 Definitions.

As used in this part:

(a) BAC means either blood or breath alcohol concentration.

(b) BAC per se law means a law that makes it an offense, in and of

itself, to operate a motor vehicle with an alcohol concentration at or

above a specified level.

(c) Alcohol concentration means either grams of alcohol per 100

milliliters of blood or grams of alcohol per 210 liters of breath.

(d) Has enacted and is enforcing means the State's law is in effect

and the State has begun to implement the law.

(e) Operating a motor vehicle means driving or being in actual

physical control of a motor vehicle.

(f) Standard driving while intoxicated offense means the non-BAC

per se driving while intoxicated offense in the State.

(g) State means any one of the fifty States, the District of

Columbia, or Puerto Rico.

Sec. 1225.4 General requirements.

(a) Qualification requirements.

(1) To qualify for a first-year grant under 23 U.S.C. 163, a State

must submit a certification by an appropriate State official, that the

State has enacted and is enforcing a 0.08 BAC per se law that conforms

to 23 U.S.C. 163 and Sec. 1225.5 of this part and that the funds will

be used for eligible projects and programs. 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.

(2) To qualify for a subsequent-year grant under 23 U.S.C. 163, a

State must submit a certification by an appropriate State official.

(i) If the State's 0.08 BAC per se law has not changed since the

State last qualified for grant funds under this program, the

certification shall be worded as follows:

(Name of certifying official), (position title), of the (State

or Commonwealth) of ________, do hereby certify that the (State or

Commonwealth) of ________ has not changed and is enforcing a 0.08

BAC per se law, which conforms to 23 U.S.C. 163 and 23 CFR 1225.5,

(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 has changed since the State

last qualified for grant funds under this program, the certification

shall be worded as follows:

(Name of certifying official), (position title), of the (State

or Commonwealth) of ________, do hereby certify that the (State or

Commonwealth) of ________ has amended and is enforcing a 0.08 BAC

per se law that conforms to 23 U.S.C. 163 and 23 CFR 1225.5,

(citations to State law), and that the funds received by the (State

or

[[Page 46887]]

Commonwealth) of ________, under 23 U.S.C. 163 will be used for

projects eligible for assistance under Title 23 of the United States

Code, which include highway construction as well as highway safety

projects and programs.

(3) An original and four copies of the certification shall be

submitted to the appropriate NHTSA Regional Administrator. Each

Regional Administrator will forward the certifications it receives to

appropriate NHTSA and FHWA offices.

(4) Each State that submits a certification will be informed by the

agencies whether or not it qualifies for funds.

(5) To qualify for FY 1998 grant funds, certifications must be

received by the agencies not later than September 4, 1998.

(6) To qualify for grant funds in a subsequent fiscal year,

certifications must be received by the agencies not later than July 1

of that fiscal year.

(b) Limitation on grants. A State may receive grant funds, subject

to the following limitations:

(1) The amount of a grant apportioned to a State under Sec. 1225.5

of this part shall be determined by multiplying:

(i) The amount authorized to carry out section 163 of 23 U.S.C. for

the fiscal year; by

(ii) The ratio that the amount of funds apportioned to each such

State under section 402 for such fiscal year bears to the total amount

of funds apportioned to all such States under section 402 for such

fiscal year.

(2) A State may obligate grant funds apportioned under this part

for any project eligible for assistance under Title 23 of the United

States Code.

(3) The Federal share of the cost of a project funded with grant

funds awarded under this part shall be 100 percent.

Sec. 1225.5 Adoption of 0.08 BAC per se law.

To qualify for an incentive grant under this part, a State must

demonstrate that it has enacted and is enforcing a law that provides

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 law must:

(a) Apply to all persons;

(b) Set a blood alcohol concentration of not higher than 0.08

percent as the legal limit;

(c) Make operating a motor vehicle by an individual at or above the

legal limit a per se offense;

(d) Provide for primary enforcement;

(e) Apply the 0.08 BAC legal limit to the State's criminal code

and, if the State has an administrative license suspension or

revocation (ALR) law, to its ALR law; and

(f) Be deemed to be or be equivalent to the standard driving while

intoxicated offense in the State.

Sec. 1225.6 Award procedures.

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

are subject to the limitation on obligation pursuant to section 1102 of

TEA 21.

Issued on: August 31, 1998.

Gloria J. Jeff,

Deputy Administrator, Federal Highway Administration.

Ricardo Martinez,

Administrator, National Highway Traffic Safety Administration.

[FR Doc. 98-23748 Filed 8-31-98; 12:26 pm]

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