Repeat Intoxicated Driver Laws

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

Federal Highway Administration

23 CFR Part 1275

[Docket No. NHTSA-98-4537]

RIN 2127-AH47

Repeat Intoxicated Driver Laws

AGENCY: National Highway Traffic Safety Administration (NHTSA) and

Federal Highway Administration (FHWA), Department of Transportation.

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)

Restoration Act, which provides for the transfer of Federal-aid highway

construction funds to 23 U.S.C. 402 State and Community Highway Safety

Program grant funds for any State that fails to enact and enforce a

conforming ``repeat intoxicated driver'' law.

This regulation is being published as an interim final rule, which

will go into effect prior to providing notice and the opportunity for

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

a separate document responding to comments and, if appropriate, will

revise provisions of the regulation.

DATES: This interim final rule becomes effective on November 18, 1998.

Comments on this interim rule are due no later than December 18, 1998.

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

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

Management, Room PL-401 Section, 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. Jennifer Higley, Office

of State and Community Services, NSC-01, National Highway Traffic

Safety

[[Page 55797]]

Administration, 400 Seventh Street S.W., Washington, DC 20590,

telephone (202) 366-2121; or Ms. Heidi L. Coleman, Office of Chief

Counsel, NCC-30, telephone (202) 366-1834.

In FHWA: Mr. Bing Wong, Office of Highway Safety, HHS-20, telephone

(202) 366-2169; or Mr. Raymond W. Cuprill, HCC-20, telephone (202) 366-

0834.

SUPPLEMENTARY INFORMATION: The Transportation Equity Act for the 21st

Century (TEA-21), H.R. 2400, P.L. 105-178, was signed into law on June

9, 1998. On July 22, 1998, a technical corrections bill, entitled the

TEA-21 Restoration Act, P.L. 105-206, was enacted to restore provisions

that were agreed to by the conferees to H.R. 2400, but were not

included in the TEA-21 conference report. Section 1406 of the Act

amended chapter 1 of title 23, United States Code (U.S.C.), by adding

Section 164, which established a transfer program under which a

percentage of a State's Federal-aid highway construction funds will be

transferred to the State's apportionment under Section 402 of Title 23

of the United States Code, if the State fails to enact and enforce a

conforming ``repeat intoxicated driver'' law.

In accordance with Section 164, these funds are to be used for

alcohol-impaired driving countermeasures or the enforcement of driving

while intoxicated (DWI) laws, or States may elect to use all or a

portion of the funds for hazard elimination activities, under 23 U.S.C.

Section 152.

As provided in Section 164, to avoid the transfer of funds, State

``repeat intoxicated driver'' laws must provide for certain specified

minimum penalties for persons who have been convicted of driving while

intoxicated or under the influence upon their second and subsequent

convictions.

This new program was established to address the issue of impaired

driving, which is a serious national 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 and 7 percent of all crashes. Every 32 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.

Repeat Intoxicated Driver Laws

State laws that are directed to individuals who have been convicted

more than once of driving while intoxicated or driving under the

influence are critical tools in the fight against impaired driving. In

order to encourage States to enact and enforce effective impaired

driving laws, Congress has created a number of different programs.

Under the Section 410 program (under 23 U.S.C. 410), and its

predecessor, the Section 408 program (under 23 U.S.C. 408), for

example, States could qualify for incentive grant funds if they adopted

and implemented certain specified laws and programs designed to deter

impaired driving. Some of these laws and programs were directed

specifically toward repeat impaired driving offenders.

For example, prior to the enactment of TEA-21, to qualify for an

incentive grant under the Section 410 program, a State was required to

meet five out of seven basic grant criteria that were specified in the

Act and the implementing regulation. The criteria included, among

others, an expedited driver license suspension system, which required a

mandatory minimum one-year license suspension for repeat offenders, and

a mandatory minimum sentence of imprisonment or community service for

individuals convicted of driving while intoxicated more than once in

any five-year period.

States that were eligible for a basic Section 410 grant could

qualify also for additional grant funds by meeting supplemental grant

criteria, such as the suspension of registration and return of license

plate program. States could demonstrate compliance with this program by

showing that they provided for the impoundment, immobilization or

confiscation of an offender's motor vehicles.

TEA-21 changed the Section 410 program and, specifically, the

Section 410 criteria that were directed toward repeat offenders. The

conferees to that legislation had intended to create a new repeat

intoxicated driver transfer program to encourage States to enact repeat

intoxicated driver laws, but this new program was inadvertently omitted

from the TEA-21 conference report. The program was included instead in

the TEA-21 Restoration Act, which was signed into law on July 22, 1998.

Section 164 Repeat Intoxicated Driver Law Program

Section 164 provides that the Secretary must transfer a portion of

a State's Federal-aid highway construction funds apportioned under

Sections 104(b) (1), (3), and (4) of title 23 of the United States

Code, for the National Highway System, Surface Transportation Program

and Interstate System, to the State's apportionment under Section 402

of that title, if the State does not meet certain statutory

requirements. All 50 States, the District of Columbia and Puerto Rico

are considered to be States, for the purpose of this program.

To avoid the transfer, a State must enact and enforce a repeat

intoxicated driver law that establishes, at a minimum, certain

specified penalties for second and subsequent convictions for driving

while intoxicated or under the influence. These penalties include: a

one-year driver's license suspension; the impoundment or immobilization

of, or the installation of an ignition interlock system on, the repeat

intoxicated driver's motor vehicles; assessment of the repeat

intoxicated driver's degree of alcohol abuse, and treatment as

appropriate; and the sentencing of the repeat intoxicated driver to a

minimum number of days of imprisonment or community service.

Consistent with other programs that are administered by the

agencies, a State's law must have been both passed and come into effect

to permit a State to rely on the law to avoid the transfer of funds. In

addition, the State must be actively enforcing the law.

Any State that does not enact and enforce a conforming repeat

intoxicated driver law will be subject to a transfer of funds. In

accordance with Section 164, if a State does not meet the statutory

requirements on October 1, 2000, or October 1, 2001, an amount equal to

1\1/2\ percent of the funds apportioned to the State on those dates

under each of Sections 104(b)(1), (3), and (4) of title 23 of the

United States Code will be transferred to the State's apportionment

under Section 402 of that title. If a State does not meet the statutory

requirements on October 1, 2002, an amount equal to three percent of

the funds apportioned to the State on that date under Sections

104(b)(1), (3) and (4) will be transferred. An amount equal to three

percent will continue to be transferred on October 1 of each subsequent

fiscal year, if the State does

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not meet the requirements on those dates.

Section 164, and this implementing regulation, provides also that

the amount of the apportionment to be transferred may be derived from

one or more of the apportionments under Sections 104(b)(1), (3) and

(4).

In other words, the total amount to be transferred from a non-

conforming State will be calculated based on a percentage of the funds

apportioned to the State under each of Sections 104(b)(1), (3) and (4).

However, the actual transfers need not be evenly distributed among

these three sources. The transferred funds may come from any one or a

combination of the apportionments under Sections 104(b)(1), (3) or (4),

as long as the appropriate total amount is transferred from one or more

of these three sections.

The funds transferred to Section 402 under this program are to be

used for alcohol-impaired driving countermeasures or directed to State

and local law enforcement agencies for the enforcement of laws

prohibiting driving while intoxicated, driving under the influence or

other related laws or regulations. The Act provides that States may

elect to use all or a portion of the transferred funds for hazard

elimination activities under 23 U.S.C. 152.

Compliance Criteria

To avoid the transfer of funds under this program, Section 164

provides that a State must enact and enforce:

a ``repeat intoxicated driver law'' * * * that provides * * *

that an individual convicted of a second or subsequent offense for

driving while intoxicated or driving under the influence [must be

subject to certain specified minimum penalties].

The statute defines the term ``repeat intoxicated driver law'' to

mean a State law that provides certain specified minimum penalties for

an individual convicted of a second or subsequent offense for driving

while intoxicated or driving under the influence. The agencies' interim

final rule adopts this definition. The interim rule also defines the

term ``repeat intoxicated driver.'' Consistent with other programs

conducted by the agencies and with State laws and practices regarding

the maintenance of records of previous convictions, the implementing

regulation provides that an individual is a ``repeat intoxicated

driver'' if the driver was convicted of driving while intoxicated or

driving under the influence of alcohol more than once in any five-year

period.

The agencies have conducted a preliminary review of State laws to

determine whether any States use a period of time that is shorter than

five years, for the purpose of considering an individual to be a repeat

offender. We are aware of two States that consider individuals to be

repeat offenders only if they have been convicted of an alcohol offense

within the last three years. We are aware also of one State that

provides the same sanctions for all offenders convicted of driving

while intoxicated or driving under the influence of alcohol, including

both first and subsequent offenders.

To comply with the requirements of this Part, a State need not have

a law that considers all drivers convicted of driving while intoxicated

or driving under the influence of alcohol more than once in any five-

year period to be ``repeat intoxicated drivers,'' and the State law

need not establish separate sanctions for first and repeat offenders.

However, to comply, the State must have a law that imposes each of the

sanctions described in Section 164 and this implementing regulation on

all ``repeat intoxicated drivers,'' as that term is defined in this

rule. In addition, the State must maintain its records on convictions

for driving while intoxicated or driving under the influence of alcohol

for a period of at least five years.

The terms ``driving while intoxicated'' and ``driving under the

influence'' are both defined by the statute to mean driving or being in

actual physical control of a motor vehicle while having an alcohol

concentration above the legal limit of the State. The statute also

defines the term ``alcohol concentration.'' The regulation adopts these

statutory definitions.

To comply with Section 164 and the agencies' implementing

regulation, and thereby avoid the transfer of Federal-aid highway

construction funds, a State must impose all four penalties prescribed

in Section 164 on all repeat intoxicated drivers. Each of these

penalties is described below:

1. A minimum one-year license suspension for repeat intoxicated

drivers.

To avoid the transfer of funds, the State law must impose a

mandatory minimum one-year driver's license suspension or revocation on

all repeat intoxicated drivers. Research has shown that driver

licensing sanctions have a significant impact on the problem of

impaired driving. Studies relating to licensing sanctions imposed under

State administrative licensing revocation systems, for example, have

found that these sanctions result in reductions in alcohol-related

fatalities of between 6-10 percent.

The term ``license suspension'' is defined in both the statute and

the implementing regulation to mean a hard suspension of all driving

privileges. Accordingly, during the one-year term, the offender cannot

be eligible for any driving privileges, such as a restricted or a

hardship license.

Based on the agencies' review of current State laws, it appears

that there are a number of States that do not impose a mandatory

suspension of all driving privileges for a period of not less than one

year. Some States permit hardship or restricted licenses during the

one-year term. Others provide for the return of an offender's driver's

license if an ignition interlock system is placed on the offender's

vehicle. In addition, some States provide for a driver's license

suspension, but do not establish a mandatory one-year term. These State

laws do not conform to the regulation.

2. Impoundment or immobilization of, or the installation of an

ignition interlock system on, motor vehicles.

To avoid the transfer of funds, the State law must require the

impoundment or immobilization of, or the installation of an ignition

interlock on, all motor vehicles owned by the repeat intoxicated

offenders.

The term ``impoundment or immobilization'' has been defined in the

regulation to mean the removal of a motor vehicle or the rendering of a

motor vehicle inoperable, and the agencies have determined that this

definition will also include the forfeiture or confiscation of a motor

vehicle or the revocation or suspension of a motor vehicle license

plate or registration. The agencies have defined the term ``ignition

interlock system'' in the regulation to mean a State-certified system

designed to prevent drivers from starting their motor vehicles when

their breath alcohol concentration is at or above a preset level.

The State law does not need to provide for all three types of

penalties to comply with this criterion, but it must require that at

least one of the three penalties will be imposed on all repeat

intoxicated drivers, for the State to avoid the transfer of funds.

Section 164 does not specify when a State must impose the

impoundment or immobilization of, or the installation of an ignition

interlock system on, motor vehicles. To determine when these penalties

must be imposed, the agencies considered the purpose of these three

penalties.

The agencies recognize that the purpose of an impoundment or

immobilization sanction is very

[[Page 55799]]

different from that of the installation of an ignition interlock

system.

When an individual convicted of driving while intoxicated is

subject to a driver license suspension, it is expected that the

individual will not drive for the length of the suspension term.

However, some studies have found that as many as 70 percent of all

repeat offenders continue to drive even after their driver's licenses

have been suspended or revoked. In 1997, nearly 6000 drivers involved

in fatal crashes did not have a valid driver's license. This number

represents approximately 10.8 percent of the total number (54,935) of

drivers involved in fatal crashes, with known license status.

Accordingly, laws that provide for the impoundment or

immobilization of motor vehicles are designed to ensure that driver's

license suspension sanctions are not to be ignored. They seek to

prevent offenders from driving vehicles while their driver's licenses

are under suspension.

Laws that provide for the installation of an ignition interlock

system on a motor vehicle, on the other hand, are not designed to

prevent the individual from driving. Such laws generally provide that

these systems will be installed on a motor vehicle once the

individual's driver's license has been restored and the individual's

immobilized or impounded vehicles have been returned. Instead, these

laws recognize that many individuals convicted of driving while

intoxicated have difficulty controlling their drinking. Accordingly,

they are designed to prevent individuals, once they are free again to

drive, from drinking and driving. Research indicates that about one-

third or all drivers arrested or convicted of driving while intoxicated

or driving under the influence are repeat offenders. These laws are

designed to prevent recidivism.

Based on the nature of these penalties, the agencies have decided

that a uniform time frame for all three penalties would not be

appropriate. Instead, the regulation provides that, to comply with this

criterion, the State law must require that the impoundment or

immobilization be imposed during the one-year suspension term, and that

the ignition interlock system be installed at the conclusion of the

one-year term. The regulation does not specify the length of time

during which these penalties must remain in effect, since the statute

was silent in that regard. Leaving this condition undefined in the

regulation will permit each State to establish a term that is most

appropriate under its own statutory scheme. The agencies note, however,

that many States impose impoundment and immobilization sanctions for

the duration of license suspension terms. The agencies believe this

approach is a sensible one, and States are encouraged to adopt it.

Consistent with past practices under the Section 410 program, the

agencies will permit States to provide limited exceptions to the

impoundment or immobilization requirement on an individual basis, to

avoid undue hardship to an individual, including a family member of the

repeat intoxicated driver, or a co-owner of the motor vehicle, but not

including the repeat intoxicated driver. To ensure that the

availability of these exceptions do not undermine the impoundment or

immobilization requirement, however, exceptions must be made in

accordance with Statewide published guidelines developed by the State,

and in exceptional circumstances specific to the offender.

An exception to the installation of the ignition interlock system,

however, will not be acceptable. The agencies believe that an exception

to the requirement that an ignition interlock system be installed is

not necessary, since the requirement does not prevent a motor vehicle

from being available for others dependent on that vehicle. It only

prevents an individual from operating the vehicle under the influence

of alcohol.

These sanctions must be mandatory and they must apply to all repeat

intoxicated drivers for the State law to conform to this criterion. The

agencies are aware of some States that only impose these sanctions on

individuals determined to be habitual traffic law offenders. These laws

do not conform to the requirements of the regulation. Also, in order to

qualify under this criterion, each motor vehicle owned by the repeat

intoxicated driver must be subject to one of the three penalties. A

``motor vehicle'' is defined by Section 164 to mean a vehicle driven or

drawn by mechanical power and manufactured primarily for use on public

highways, but does not include a vehicle operated exclusively on a rail

line or a commercial vehicle. A motor vehicle is subject to this

element if the repeat intoxicated driver's name appears on the motor

vehicle registration or title.

Based on the agencies' review of State laws, it appears that many

laws provide for an impoundment, immobilization or ignition interlock

sanction. However, a number of State laws do not impose these sanctions

on all vehicles owned by the repeat intoxicated driver. If this

condition is not present in a State law, the law will not conform to

the agencies' regulation.

3. An assessment of their degree of alcohol abuse, and treatment,

as appropriate.

To avoid the transfer of funds, the State law must require that all

repeat intoxicated drivers undergo an assessment of their degree of

alcohol abuse and the State law must authorize the imposition of

treatment as appropriate.

Repeat arrests for either driving while intoxicated or driving

under the influence of alcohol is one indication of a drinking problem,

and problem drinkers (if they drive at all) are at risk of drinking and

driving. Assessments of repeat intoxicated drivers for problems and

referrals to appropriate treatments may help to identify and address

the underlying problems that lead to drinking and driving.

Under an assessment, individuals are assessed with regard to their

alcohol and other drug use (e.g., the frequency and quantity of use,

the consequences of alcohol and other drug use, and any evidence of

loss of control over use). Generally, an assessment will contain a

second component, as well, under which individuals are assessed with

regard to their risk of driving while intoxicated or of driving under

the influence of alcohol (their recidivism risk) based on factors in

addition to their drinking behavior.

In practice, an assessment typically consists of the administration

of a standardized psychometric test and a personal interview by a

trained evaluator. The information obtained through these means are

then supplemented with information from the courts (regarding the

individual's criminal and driving history), and family members

(regarding the individual's alcohol and other drug use).

Based on the information obtained from the assessment, an informed

determination can be made regarding the appropriate treatment, if any,

for the repeat intoxicated driver. This determination should be made by

a person qualified to evaluate alcohol abuse levels.

There is a wide array of programs and activities that are

considered to be ``treatment.'' Examples include: Attendance at

outpatient counseling sessions; long-term inpatient (i.e, residential)

programs conducted in hospitals and clinics; the use of medications;

participation in self-help programs such as Alcoholics Anonymous; or

any other program, including educational programs, psychological

treatment or rehabilitation, that has been proven to be effective.

[[Page 55800]]

To qualify under this criterion, the State law must make it

mandatory for the repeat intoxicated driver to undergo an assessment,

but the law need not impose any particular treatment (or any treatment

at all). It need only authorize the imposition of treatment when it is

determined to be warranted.

A review of current State laws reveals that a number of States

provide for a mandatory assessment of repeat intoxicated drivers and

have the authority to assign such drivers to treatment as appropriate.

Other States, however, do not provide for both of these elements.

Some State laws provide for a mandatory education or treatment

program for repeat intoxicated drivers, but do not specify that these

drivers must be assessed. To comply with Section 164 and the agencies'

implementing regulation, such States must demonstrate, such as by

submitting sections of the State's statutes, regulations or binding

policy directives, that under its laws an assessment is a required

component of the mandatory education or treatment program.

Other States provide for an assessment and appropriate treatment

for offenders, but only as a condition to permit the offender to avoid

certain other sanctions. To comply with Section 164 and the agencies'

implementing regulation, such States must demonstrate that an

assessment is required and treatments are available for all repeat

intoxicated drivers. In addition, the other minimum penalties specified

under the Section 164 program must continue to be imposed.

4. Mandatory minimum sentence.

To avoid the transfer of funds, the State law must impose a

mandatory minimum sentence on all repeat intoxicated drivers. For a

second offense, the law must provide for a mandatory minimum sentence

of not less than five days of imprisonment or 30 days of community

service. For a third or subsequent offense, the law must provide for a

mandatory minimum sentence of not less than ten days of imprisonment or

60 days of community service.

Consistent with NHTSA's administration of the Section 410 program,

the agencies have defined ``imprisonment'' to mean confinement in a

jail, minimum security facility, community corrections facility,

inpatient rehabilitation or treatment center, or other facility,

provided the individual under confinement is in fact being detained.

House arrests have not been considered to fall within the

definition of ``imprisonment'' to date under the Section 410 program,

because it was thought that they did not have a sufficient deterrent

effect. However, recent NHTSA research seems to indicate that house

arrests are effective if they are coupled with electronic monitoring. A

recent study, for example, found markedly lower recidivism rates among

offenders who had been placed under house arrest with such monitoring.

Accordingly, the agencies have included house arrests under the

definition of ``imprisonment'' under the Section 164 program, provided

that electronic monitoring is used.

The agencies note that, under NHTSA's Section 410 program, States

were eligible to receive incentive grants if they met certain specified

requirements, including a mandatory 48 consecutive hours of

imprisonment for repeat offenders. As a result of this requirement,

some current State laws impose a mandatory sentence of 48 consecutive

hours of imprisonment on second or subsequent offenses of driving while

intoxicated or driving under the influence of alcohol. This Repeat

Intoxicated Driver Program, however, requires longer terms of

imprisonment than were required under Section 410. To comply with this

new program, States must provide for the longer sentences required

under this new program and the State laws must establish these

sentences as mandatory minimum terms.

Demonstrating Compliance

Section 164 provides that nonconforming States will be subject to

the transfer of funds beginning in fiscal year 2001. To avoid the

transfer, this interim final rule provides that each State must submit

a certification demonstrating compliance with all four elements.

The certifications submitted by the States under this Part will

provide the agencies with the basis for finding States in compliance

with the Repeat Intoxicated Driver requirements. Accordingly, until a

State has been determined to be in compliance with these requirements,

a State must submit a certification by an appropriate State official

that the State has enacted and is enforcing a repeat intoxicated driver

law that conforms to 23 U.S.C. 164 and Sec. 1275 of this Part.

Certifications must include citations to the State's conforming

repeat intoxicated driver law. These citations must include all

applicable provisions of the State's law.

Once a State has been determined to be in compliance with the

requirements, the State would not be required to submit certifications

in subsequent fiscal years, unless the State's law had changed or the

State had ceased to enforce the repeat intoxicated driver law. It is

the responsibility of each State to inform the agencies of any such

change in a subsequent fiscal year, by submitting an amendment or

supplement to its certification.

States are required to submit their certifications on or before

September 30, 2000, to avoid the transfer of FY 2001 funds on October

1, 2000.

States that are found in noncompliance with these requirements in

any fiscal year, once they have enacted complying legislation and are

enforcing the law, must submit a certification to that effect before

the following fiscal year to avoid the transfer of funds in that

following fiscal year. Such certifications demonstrating compliance

must be submitted on or before the first day (October 1) of the

following fiscal year.

The agencies strongly encourage States to submit their

certifications in advance. The early submission of these documents will

enable the agencies to inform States as quickly as possible whether or

not their laws satisfy the requirements of Section 164 and the

implementing regulation, and will provide States with noncomplying laws

an opportunity to take the necessary steps to meet these requirements

before the date for the transfer of funds.

The agencies also strongly encourage States that are considering

the enactment of legislation to conform to these requirements 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, will conform

to the new regulation, thereby avoiding a situation in which a State

unintentionally enacts a non-conforming repeat intoxicated driver law

and the State remains subject to the transfer of funds. Requests should

be submitted through NHTSA's Regional Administrators, who will refer

the requests to appropriate NHTSA and FHWA offices for review.

Enforcement

Section 164 provides that, to qualify for grant funding, a State

must not only enact a conforming law, but must also enforce the law. To

ensure the effective implementation of a repeat intoxicated driver law,

the agencies encourage the States to enforce their laws rigorously. In

particular, the agencies recommend that States incorporate into their

enforcement efforts activities designed to inform law enforcement

officers,

[[Page 55801]]

prosecutors, members of the judiciary and the public about all aspects

of their repeat intoxicated driver laws.

To demonstrate that they are enforcing their laws under the

regulation, however, States are required only to submit a certification

that they are enforcing their laws.

Notification of Compliance

For each fiscal year, beginning with FY 2001, NHTSA and the FHWA

will notify States of their compliance or noncompliance with Section

164, based on a review of certifications received. If, by June 30 of

any year, beginning with the year 2000, a State has not submitted a

certification or if the State has submitted a certification and it does

not conform to Section 164 and the implementing regulation, the

agencies will make an initial determination that the State does not

comply with Section 164 and with this regulation, and the transfer of

funds will be noted in the FHWA's advance notice of apportionment for

the following fiscal year, which generally is issued in July.

Each State determined to be in noncompliance will have an

opportunity to rebut the initial determination. The State will be

notified of the agencies' final determination of compliance or

noncompliance and the amount of funds to be transferred as part of the

certification of apportionments, which normally occurs on October 1 of

each fiscal year.

As stated earlier, NHTSA and the FHWA expect that States will want

to know as soon as possible whether their laws satisfy the requirements

of Section 164, or they may want assistance in drafting conforming

legislation.

States are strongly encouraged to submit certifications in advance,

and to request preliminary reviews and assistance from the agencies.

Requests should be submitted through NHTSA's Regional Administrators,

who will refer these requests to appropriate NHTSA and FHWA offices for

review.

Interim Final Rule

This document is being published as an interim final rule.

Accordingly, the new regulations in Part 1275 are fully in effect 30

days after 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. Some State legislatures do not meet every

year. Other State legislatures do meet every year, but limit their

business every other year to certain limited matters, such as budget

and spending issues. The agencies are aware of six State legislatures

that are not scheduled to meet at all in the Year 2000, and additional

State legislatures may have limited agendas in that year. These States

will have just one opportunity (during the 1999 session of their State

legislatures) to enact conforming legislation, and they are preparing

agendas and proposed legislation now for their 1999 legislative

sessions. These States have an urgent need to know what the criteria

will be as soon as possible so they can develop and enact conforming

legislation and avoid the transfer of funds on October 1, 2000.

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 avoid

the transfer of funds under this new program are similar to procedures

that States have followed in other 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 demonstrate that

they have a conforming repeat intoxicated driver law are derived from

the Federal statute and are similar to some of the criteria that were

included under the Section 408 and 410 programs. The regulations that

implemented NHTSA's Section 408 and 410 programs 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 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 1275.

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 December

18, 1998. To expedite the submission of comments, simultaneous with the

issuance of this notice, NHTSA and the 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 the Docket 98-XXXX 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 not a significant

action within the meaning of Executive Order 12866 or significant

within the meaning of Department of Transportation Regulatory Policies

and Procedures. States can choose to enact and enforce a repeat

intoxicated driver law, in conformance with Public Law 105-206, and

thereby avoid the transfer of

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Federal-aid highway funds. Alternatively, if States choose not to enact

and enforce a conforming law, their funds will be transferred, but not

withheld. Accordingly, the amount of funds provided to each State will

not change.

In addition, the costs associated with this rule are minimal and

are expected to be offset by resulting highway safety benefits. The

enactment and enforcement of repeat intoxicated driver laws should help

to reduce impaired driving, which is a serious and costly problem in

the United States. Accordingly, further economic assessment is not

necessary.

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. This rulemaking implements a new program

enacted by Congress in the TEA-21 Restoration Act. As the result of

this new Federal program and the implementing regulation, States will

be subject to a transfer of funds if they do not enact and enforce

repeat intoxicated driver laws that provide for certain specified

mandatory penalties. This interim final rule will affect only State

governments, which are not considered to be small entities as that term

is defined by the Regulatory Flexibility Act. 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, and have determined that it will not

have a significant effect on the human environment.

The Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (Pub. L. 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 the 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, because the resulting annual expenditures will not

exceed the $100 million threshold. In addition, the program is optional

to the States. States may choose to enact and enforce a conforming

repeat intoxicated driver law and avoid the transfer of funds

altogether. Alternatively, if States choose not to enact and enforce a

conforming law, funds will be transferred, but no funds will be

withheld from any State.

Executive Order 12612 (Federalism)

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, a

Federalism Assessment has not been prepared.

List of Subjects in 23 CFR Part 1275

Alcohol and alcoholic beverages, Grant programs-- transportation,

Highway safety.

In accordance with the foregoing, a new Part 1275 is added to

Subchapter D, of title 23 of the Code of Federal Regulations to read as

follows:

PART 1275--REPEAT INTOXICATED DRIVER LAWS

Sec.

1275.1 Scope.

1275.2 Purpose.

1275.3 Definitions.

1275.4 Compliance criteria.

1275.5 Certification requirements.

1275.6 Transfer of funds.

1275.7 Use of transferred funds.

1275.8 Procedures affecting States in noncompliance.

Authority: 23 U.S.C. 164; delegation of authority at 49 CFR

Secs. 1.48 and 1.50.

Sec. 1275.1 Scope.

This part prescribes the requirements necessary to implement

Section 164 of Title 23, United States Code, which encourages States to

enact and enforce repeat intoxicated driver laws.

Sec. 1275.2 Purpose.

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

take to avoid the transfer of Federal-aid highway funds for

noncompliance with 23 U.S.C. 164.

Sec. 1275.3 Definitions.

As used in this part:

(a) Alcohol concentration means grams of alcohol per 100

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

(b) Driver's motor vehicle means a motor vehicle with a title or

registration on which the repeat intoxicated driver's name appears.

(c) Driving while intoxicated means driving or being in actual

physical control of a motor vehicle while having an alcohol

concentration above the permitted limit as established by each State.

(d) Driving under the influence has the same meaning as ``driving

while intoxicated.''

(e) Enact and enforce means the State's law is in effect and the

State has begun to implement the law.

(f) Ignition interlock system means a State-certified system

designed to prevent drivers from starting their car when their breath

alcohol concentration is at or above a preset level.

(g) Impoundment or immobilization means the removal of a motor

vehicle from a repeat intoxicated driver's possession or the rendering

of a repeat intoxicated driver's motor vehicle inoperable. For the

purpose of this regulation, ``impoundment or immobilization'' also

includes the forfeiture or confiscation of a repeat intoxicated

driver's motor vehicle or the revocation or suspension of a repeat

intoxicated driver's motor vehicle license plate or registration.

(h) Imprisonment means confinement in a jail, minimum security

facility, community corrections facility, house arrest with electronic

monitoring, inpatient rehabilitation or treatment center, or other

facility, provided the individual under confinement is in fact being

detained.

(i) License suspension means a hard suspension of all driving

privileges.

(j) Motor vehicle means a vehicle driven or drawn by mechanical

power and manufactured primarily for use on public highways, but does

not include a vehicle operated solely on a rail line or a commercial

vehicle.

(k) Repeat intoxicated driver means a person who has been convicted

previously of driving while intoxicated or driving under the influence

within the past five years.

(l) Repeat intoxicated driver law means a State law that imposes

the minimum penalties specified in Sec. 1275.4 of this part for all

repeat intoxicated drivers.

(m) State means any of the 50 States, the District of Columbia or

the Commonwealth of Puerto Rico.

Sec. 1275.4 Compliance criteria.

(a) To avoid the transfer of funds as specified in Sec. 1275.6 of

this part, a State must enact and enforce a law that

[[Page 55803]]

establishes, as a minimum penalty, that all repeat intoxicated drivers

shall:

(1) Receive a driver's license suspension of not less than one

year;

(2) Be subject to either--

(i) The impoundment of each of the driver's motor vehicles during

the one-year license suspension;

(ii) The immobilization of each of the driver's motor vehicles

during the one-year license suspension; or

(iii) The installation of a State-approved ignition interlock

system on each of the driver's motor vehicles at the conclusion of the

one-year license suspension;

(3) Receive an assessment of their degree of alcohol abuse, and

treatment as appropriate; and

(4) Receive a mandatory sentence of--

(i) Not less than five days of imprisonment or 30 days of community

service for a second offense; and

(ii) Not less than ten days of imprisonment or 60 days of community

service for a third or subsequent offense.

(b) Exceptions. (1) A State may provide limited exceptions to the

impoundment or immobilization requirements contained in paragraphs

(a)(2)(i) and (a)(2)(ii) of this section on an individual basis, to

avoid undue hardship to any individual who is completely dependent on

the motor vehicle for the necessities of life, including any family

member of the convicted individual, and any co-owner of the motor

vehicle, but not including the offender.

(2) Such exceptions may be issued only in accordance with a State

law, regulation or binding policy directive establishing the conditions

under which vehicles may be released by the State or under Statewide

published guidelines and in exceptional circumstances specific to the

offender's motor vehicle, and may not result in the unrestricted use of

the vehicle by the repeat intoxicated driver.

Sec. 1275.5 Certification requirements.

(a) Until a State has been determined to be in compliance, or after

a State has been determined to be in non-compliance, with the

requirements of 23 U.S.C. 164, to avoid the transfer of funds in any

fiscal year, beginning with FY 2001, the State shall certify to the

Secretary of Transportation, on or before September 30 of the previous

fiscal year, that it meets the requirements of 23 U.S.C. 164 and this

part.

(b) The certification shall be made by an appropriate State

official, and it shall provide that the State has enacted and is

enforcing a repeat intoxicated driver law that conforms to 23 U.S.C.

164 and Sec. 1275.4 of this part. 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 repeat intoxicated driver law that conforms to the

requirements of 23 U.S.C. 164 and 23 CFR 1275.4, (citations to State

law).

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

submitted to the appropriate NHTSA Regional Administrator. Each

Regional Administrator will forward the certifications to the

appropriate NHTSA and FHWA offices.

(d) Once a State has been determined to be in compliance with the

requirements of 23 U.S.C. 164, it is not required to submit additional

certifications, except that the State shall promptly submit an

amendment or supplement to its certification provided under paragraphs

(a) and (b) of this section if the State's repeat intoxicated driver

legislation changes or the State ceases to enforce its law.

Sec. 1275.6 Transfer of funds.

(a) On October 1, 2000, and October 1, 2001, if a State does not

have in effect or is not enforcing the law described in Sec. 1275.4,

the Secretary shall transfer an amount equal to 1\1/2\ percent of the

funds apportioned to the State for the fiscal year under each of 23

U.S.C. 104(b)(1), (b)(3), and (b)(4) to the apportionment of the State

under 23 U.S.C. 402.

(b) On October 1, 2002, and each October 1 thereafter, if a State

does not have in effect or is not enforcing the law described in

Sec. 1275.4, the Secretary shall transfer an amount equal to 3 percent

of the funds apportioned to the State for the fiscal year under each of

23 U.S.C. 104(b)(1), (b)(3), and (b)(4) to the apportionment of the

State under 23 U.S.C. 402.

Sec. 1275.7 Use of transferred funds.

(a) Any funds transferred under Sec. 1275.6 may:

(1) Be used for approved projects for alcohol-impaired driving

countermeasures; or

(2) Be directed to State and local law enforcement agencies for

enforcement of laws prohibiting driving while intoxicated or driving

under the influence and other related laws (including regulations),

including the purchase of equipment, the training of officers, and the

use of additional personnel for specific alcohol-impaired driving

countermeasures, dedicated to enforcement of the laws (including

regulations).

(b) States may elect to use all or a portion of the transferred

funds for hazard elimination activities eligible under 23 U.S.C. 152.

(c) The Federal share of the cost of any project carried out with

the funds transferred under Sec. 1275.6 of this part shall be 100

percent.

(d) The amount to be transferred under Sec. 1275.6 of this Part may

be derived from one or more of the following:

(1) The apportionment of the State under Sec. 104(b)(1);

(2) The apportionment of the State under Sec. 104(b)(3); or

(3) The apportionment of the State under Sec. 104(b)(4).

(e)(1) If any funds are transferred under Sec. 1275.6 of this part

to the apportionment of a State under Section 402 for a fiscal year, an

amount, determined under paragraph (e)(2) of this section, of

obligation authority will be distributed for the fiscal year to the

State for Federal-aid highways and highway safety construction programs

for carrying out projects under Section 402.

(2) The amount of obligation authority referred to in paragraph

(e)(1) of this section shall be determined by multiplying:

(i) The amount of funds transferred under Sec. 1275.6 of this Part

to the apportionment of the State under Section 402 for the fiscal

year; by

(ii) The ratio that:

(A) The amount of obligation authority distributed for the fiscal

year to the State for Federal-aid highways and highway safety

construction programs; bears to

(B) The total of the sums apportioned to the State for Federal-aid

highways and highway safety construction programs (excluding sums not

subject to any obligation limitation) for the fiscal year.

(f) Notwithstanding any other provision of law, no limitation on

the total obligations for highway safety programs under Section 402

shall apply to funds transferred under Sec. 1275.6 to the apportionment

of a State under such section.

Sec. 1275.8 Procedures affecting States in noncompliance.

(a) Each fiscal year, each State determined to be in noncompliance

with 23 U.S.C. 164 and this part, based on NHTSA's and FHWA's

preliminary review of its certification, will be advised of the funds

expected to be transferred under Sec. 1275.4 from apportionment, as

part of the advance notice of apportionments required under 23 U.S.C.

104(e), normally not later than ninety days prior to final

apportionment.

[[Page 55804]]

(b) If NHTSA and FHWA determine that the State is not in compliance

with 23 U.S.C. 164 and this part, based on the agencies' preliminary

review, the State may, within 30 days of its receipt of the advance

notice of apportionments, submit documentation showing why it is in

compliance. Documentation shall be submitted to the appropriate

National Highway Traffic Safety Administration Regional office.

(c) Each fiscal year, each State determined not to be in compliance

with 23 U.S.C. 164 and this part, based on NHTSA's and FHWA's final

determination, will receive notice of the funds being transferred under

Sec. 1275.6 from apportionment, as part of the certification of

apportionments required under 23 U.S.C. 104(e), which normally occurs

on October 1 of each fiscal year.

Issued on: October 14, 1998.

Ricardo Martinez,

Administrator, National Highway Traffic Safety Administration.

Anthony Kane,

Executive Director, Federal Highway Administration.

[FR Doc. 98-27969 Filed 10-14-98; 3:13 pm]

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