59112 Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Rules and Regulations

order to show why they should not be

required to implement imbalance

trading.

By the Commission.

David P. Boergers,

Secretary.

[FR Doc. 00–25437 Filed 10–3–00; 8:45 am]

BILLING CODE 6717–01–P

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

AGENCIES: National Highway Traffic

Safety Administration (NHTSA) and

Federal Highway Administration

(FHWA), Department of Transportation.

ACTION: Final rule.

SUMMARY: This document adopts as a

final rule, with some changes, the

regulations that were published in an

interim final rule to implement a new

program established by the

Transportation Equity Act for the 21st

Century (TEA 21) Restoration Act. The

final rule provides for a transfer of

Federal-aid highway construction funds

authorized under 23 U.S.C. 104 to the

State and Community Highway Safety

Program under 23 U.S.C. 402 for any

State that fails to enact and enforce a

conforming ‘‘repeat intoxicated driver’’

law.

DATES: This final rule becomes effective

on October 4, 2000.

FOR FURTHER INFORMATION CONTACT: In

NHTSA: Mr. Glenn Karr, 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,

National Highway Traffic Safety

Administration, 400 Seventh Street SW.,

Washington, DC 20590. In FHWA: Mr.

Byron E. Dover, Safety, HSA–1,

telephone (202) 366–2161; or Mr.

Raymond W. Cuprill, Office of the Chief

Counsel, HCC–20, telephone (202) 366–

0834, Federal Highway Administration,

400 Seventh Street SW., Washington,

DC 20590–0001.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

A. The Problem of Impaired Driving

B. Repeat Intoxicated Driver Laws

C. Section 164 Repeat Intoxicated Driver

Law Program

II. Interim Final Rule

A. Compliance Criteria

B. Demonstrating Compliance

C. Enforcement

D. Notification of Compliance

III. Written Comments

A. Comments Received

B. General Comments

C. Definitions Adopted in the Interim Final

Rule

D. Specific Comments Regarding the

Repeat Intoxicated Driver Criteria

1. A minimum one-year license suspension

2. Impoundment or immobilization of, or

the installation of an ignition interlock

system on, motor vehicles

3. An assessment of their degree of alcohol

abuse, and treatment as appropriate

4. Mandatory minimum sentence

E. Certifications

F. Transfer of Funds

IV. Regulatory Analyses and Notices

A. Executive Order 12778 (Civil Justice

Reform)

B. Executive Order 12866 (Regulatory

Planning and Review) and DOT

Regulatory Policies and Procedures

C. Regulatory Flexibility Act

D. Paperwork Reduction Act

E. National Environmental Policy Act

F. The Unfunded Mandates Reform Act

G. Executive Order 13132 (Federalism)

I. Background

The Transportation Equity Act for the

21st Century (TEA 21), H.R. 2400, Pub.

Law 105–178, was signed into law on

June 9, 1998. On July 22, 1998, the TEA

21 Restoration Act (the Act), Pub. Law

105–206, was enacted to restore

provisions that had been agreed to by

the conferees on TEA 21, 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 program to transfer a

percentage of a State’s Federal-aid

highway construction funds 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 that provides 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.

In accordance with section 164, these

funds are to be used for alcoholimpaired driving countermeasures or

the enforcement of driving while

intoxicated (DWI) laws, or States may

elect instead to use all or a portion of

the funds for hazard elimination

activities, under 23 U.S.C. section 152.

A. The Problem of Impaired Driving

Injuries caused by motor vehicle

traffic crashes are the leading cause of

death in America for people aged 5 to

29. Each year, traffic crashes in the

United States claim approximately

41,000 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 crashrelated costs. In 1999, alcohol was

involved in approximately 38 percent of

fatal traffic crashes. Every 33 minutes,

someone in this country dies in an

alcohol-related crash. Impaired driving

is the most frequently committed

violent crime in America.

B. 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. To encourage

States to enact and enforce effective

impaired driving laws, Congress has

created a number of different programs.

Under the section 410 program (23

U.S.C. 410), and its predecessor the

section 408 program (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 fiveyear 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.

Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Rules and Regulations 59113

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.

C. Section 164 Repeat Intoxicated Driver

Law Program

Section 164 provides that, on October

1 of each year, 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 fails to enact and

enforce a conforming ‘‘repeat

intoxicated driver’’ law. If a State does

not meet the statutory requirements on

October 1, 2000 or October 1, 2001, an

amount equal to one and one-half

percent of the funds apportioned to the

State will be transferred. If a State does

not meet the statutory requirements on

October 1, 2002, or on October 1 of any

subsequent year, an amount equal to

three percent of the funds apportioned

to the State will be transferred.

To avoid the transfer of funds, a State

must enact and enforce a 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.

II. Interim Final Rule

On October 19, 1998, NHTSA and the

FHWA published an interim final rule

in the Federal Register to implement

the section 164 program (63 FR 55798).

The interim final rule provided that, to

avoid the transfer of funds, a State must

have a law that has been enacted and

made effective, and the State must be

actively enforcing the law. In addition,

the law must meet certain requirements.

A. Compliance Criteria

The interim final rule provided that,

to avoid a transfer of funds, a State must

meet the following requirements:

1. A minimum one-year license

suspension. The State’s law must

impose a mandatory minimum one-year

driver’s license suspension or

revocation on all repeat intoxicated

drivers. Accordingly, during the oneyear term, the offender cannot be

eligible for any driving privileges, such

as a restricted or hardship license.

2. Impoundment or immobilization of,

or the installation of an ignition

interlock system on, motor vehicles. The

State’s law must require the

impoundment or immobilization of, or

the installation of an ignition interlock

on, all motor vehicles owned by the

repeat intoxicated offender. To comply

with this criterion, the State law must

require that the impoundment or

immobilization be imposed during the

one-year suspension term, or that the

ignition interlock system be installed at

the conclusion of the suspension period.

3. An assessment of their degree of

alcohol abuse, and treatment as

appropriate. To avoid the transfer of

funds, the State’s law must require that

all repeat intoxicated drivers undergo an

assessment of their degree of alcohol

abuse and the law must authorize the

imposition of treatment as appropriate.

4. Mandatory minimum sentence. The

State’s 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.

A more detailed discussion of the four

elements described above is contained

in the interim final rule (63 FR 55798–

800).

B. Demonstrating Compliance

Section 164 provides that

nonconforming States will be subject to

the transfer of funds beginning in fiscal

year 2001. The interim final rule

provides that, to avoid the transfer, each

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 section 1275 of this

part. A more detailed discussion

regarding the certifications is contained

in the interim final rule (63 FR 55800).

C. Enforcement

Section 164 provides that a State must

not only enact a conforming law, but

must also enforce the law. In the interim

final rule, the agencies encouraged the

States to enforce their repeat intoxicated

driver laws rigorously. In particular, the

agencies recommended that States

incorporate into their enforcement

efforts activities designed to inform law

enforcement officers, prosecutors,

members of the judiciary and the public

about all aspects of their repeat

intoxicated driver laws. States should

also take steps to integrate their repeat

intoxicated driver enforcement efforts

into their enforcement of other impaired

driving laws.

To demonstrate that they are

enforcing their laws under the

regulations, the interim rule indicated

that States are required to submit a

certification that they are enforcing their

laws.

D. Notification of Compliance

The interim final rule provided that,

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 yet been

determined by the agencies, based on

the State’s laws and a conforming

certification, to comply with section 164

and the implementing regulations, the

agencies will make an initial

determination that the State does not

comply with section 164, 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 until

September 30 to rebut the initial

determination or to come into

compliance. 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.

III. Written Comments

The agencies requested written

comments from interested persons on

the interim final rule. The agencies

stated in the interim rule that all

comments submitted would be

considered and that, following the close

of the comment period, the agencies

would publish a document in the

Federal Register responding to the

comments and, if appropriate, make

revisions to the provisions of part 1275.

59114 Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Rules and Regulations

A. Comments Received

The agencies received submissions

from thirteen commenters in response to

the interim final rule. Comments were

received from five States, three

organizations representing State

interests and five other individuals or

organizations with an interest in the

issues being considered as part of these

proceedings. The State comments were

submitted by Tricia Roberts, Director of

the Delaware Office of Highway Safety,

Brian J. Bushweller, Secretary of the

Delaware Department of Public Safety

and Anne P. Canby, Secretary of the

Delaware Department of Transportation

(Delaware); James R. DeSana, Director of

the Michigan Department of

Transportation and Betty J. Mercer,

Division Director of the Office of

Highway Safety Planning, Michigan

Department of State Police (Michigan);

Thomas E. Stephens, P.E., Director of

the Nevada Department of

Transportation (Nevada); Keith C.

Magnusson, Director of Driver and

Vehicle Services, North Dakota

Department of Transportation (North

Dakota); and Charles H. Thompson,

Secretary of the Wisconsin Department

of Transportation (Wisconsin).

The comments received from

organizations representing State

interests were submitted by Kenneth M.

Beam, President and CEO of the

American Association of Motor Vehicle

Administrators (AAMVA); Carl D.

Tubbesing, Deputy Executive Director of

the National Conference of State

Legislatures (NCSL); and K. Craig

Allred, Director of the Utah Highway

Safety Office, who commented in his

capacity as the Chair of the National

Association of Governors’ Highway

Safety Representatives (NAGHSR).

The comments from individuals or

organizations with an interest in the

issues being considered in these

proceedings were submitted by Mothers

Against Drunk Driving (MADD); Richard

Freund, President of LifeSafer Interlock,

Inc. (LifeSafer); Henry Jasny, General

Counsel for Advocates for Highway and

Auto Safety (Advocates); Robert B. Voas,

Ph.D., of the Pacific Institute (Dr. Voas);

and James Hedlund of Highway Safety

North (Dr. Hedlund).

Additionally, while not written in

response to this rulemaking action, the

National Transportation Safety Board

(NTSB) issued a Safety

Recommendation (H–00–27) to the

Secretary of Transportation on August 7,

2000, related to the section 164

program.

The comments, and the agencies’

responses to them, are discussed in

detail below. Also discussed below are

certain changes that the agencies have

decided to make in this final rule based

on their experience reviewing State laws

and proposed legislation since the

issuance of the interim final rule.

B. General Comments

Some of the comments submitted in

response to the interim final rule

commended the agencies on the manner

in which the interim rule implemented

the statutory requirements. North

Dakota, for example, stated that it did

‘‘not have any problems with the text of

the regulation’’ and that the regulations

‘‘appear to track with the law’’ and

‘‘seem to be straight forward and

appropriate.’’ Advocates also supported

the interim regulations. Its comments

provided that ‘‘in nearly all respects, the

agencies have made reasoned and well

thought out decisions in areas left to

agency discretion by the statute.’’

Many of the comments, however,

were critical of the section 164 program

in general. While most commenters

recognized that the criteria that States

must meet and the consequences that

will result to any State that fails to

comply with them were defined by

statute, many of the commenters were

critical of these features of the program.

For example, regarding the use of

consequences for State non-compliance,

Delaware asserted that, while it ‘‘has

long supported efforts to reduce

impaired driving on our roadways, we

strongly oppose the sanctions related to

this Repeat Intoxicated Driver Law. We

believe that transfer penalties interfere

with the [States’] progress towards

comprehensive efforts.’’ Michigan

recommended that Congress should

establish instead a ‘‘performance-based

alternative’’ under which States ‘‘can

demonstrate measurable, significant

success in reducing recidivism, either

within the state or as compared to the

national average.’’ NCSL and the State

of Wisconsin also objected to the use of

transfer sanctions.

Regarding the statutory criteria that

States must meet to avoid the sanction,

NCSL expressed its belief that ‘‘a onesize-fits-all approach is not the best way

to tackle the nation’s drunk driving

problem.’’ In addition, NAGHSR and

some of the State commenters predicted

that the criteria are so stringent, it is

unlikely that any State will fully

comply.

NHTSA and the FHWA acknowledge

that some of the compliance criteria are

strictly defined in section 164 and that

some may consider the consequences

established in section 164 for States that

fail to comply with these criteria to be

rather severe. However, the agencies are

bound to implement the section 164

program, in accordance with the

requirements that were established by

the statute. Regarding Michigan’s

suggestion that a performance-based

alternative be established, we note that

Congress has established performancebased programs under section 157 (for

seat belt use) and section 410 (for

impaired driving), but Congress has thus

far chosen to use a different approach in

the area of repeat intoxicated drivers.

Moreover, we note that this program

has had a significant impact on State

repeat intoxicated driver laws. Since the

enactment of the TEA 21 Restoration

Act, State repeat intoxicated driver laws

have been strengthened, through the

passage of new legislation, in 19 States

and the District of Columbia. NHTSA

has determined that the laws of nearly

half the States (23 of them to date) and

the District of Columbia fully comply

with the section 164 requirements.

Finally, we note that, in the Safety

Recommendation that it issued to the

Secretary on August 7, 2000, NTSB

submitted detailed comments regarding

the statutory requirements contained in

section 164. NTSB stated that the

section 164 program represents ‘‘a

substantial effort by Congress to address

the hard core drinking driver problem

* * * However, the Safety Board

believes that this legislation could be

even more effective.’’ The Board

recommended that the agency:

Evaluate modifications to the provisions of

[the TEA 21 Restoration Act] so that it can

be more effective in assisting the States to

reduce the hard core drinking driver problem

[and] recommend changes to Congress as

appropriate. Considerations should include

(a) a revised definition of ‘‘repeat offender’’

to include administrative actions on DWI

offenses; (b) mandatory treatment for hard

core offenders; (c) a minimum period of 10

years for records retention and DWI offense

enhancement; (d) administratively imposed

vehicle sanctions for hard core drinking

drivers; (e) elimination of community service

as an alternative to incarceration; and (f)

inclusion of home detention with electronic

monitoring as an alternative to incarceration.

Since NTSB’s comments recommend

that the agency seek legislative changes

to the section 164 program, these

comments will not be addressed

specifically in this final rule. These

recommendations are being considered

separately by the agency, outside the

scope of this rulemaking action.

C. Definitions Adopted in the Interim

Final Rule

Section 164 provides that, to avoid

the transfer of funds under this program,

a State must enact and enforce:

a ‘‘repeat intoxicated driver law’’ * * *

that provides * * * that an individual

Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Rules and Regulations 59115

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 incorporated this definition

into the interim final rule. The interim

rule also defined the term ‘‘repeat

intoxicated driver.’’ Consistent with

other programs conducted by the

agencies and with State laws and

practices, the interim regulations

provided 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 terms ‘‘driving while intoxicated’’

and ‘‘driving under the influence’’ were

defined in the statute to mean ‘‘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.’’ The

statute also defined the term ‘‘alcohol

concentration.’’ The interim regulations

adopted these definitions without

change.

The agencies received a number of

comments regarding these definitions.

Most of the comments sought to expand

the definition of the terms ‘‘driving

while intoxicated’’ and ‘‘driving under

the influence,’’ so that a broader set of

offenses would result in mandatory

sanctions.

For example, MADD, Dr. Hedlund

and Dr. Voas questioned the use of

language in this definition, which

provides that offenders must have had

‘‘an alcohol concentration above the

permitted limit as established by [the]

State.’’ As Dr. Hedlund explained in his

comments, the inclusion of this

language ‘‘raises the issue of whether an

alcohol concentration test is required to

establish the offense of driving while

intoxicated (or driving under the

influence). In practice, for a variety of

reasons, it is not possible to obtain an

alcohol concentration test for every

individual arrested for driving while

intoxicated. In particular, some

individuals refuse to provide a breath

test. But many individuals are convicted

of driving while intoxicated without an

alcohol concentration test, based on

other evidence obtained by the arresting

officer.’’ Accordingly, these three

commenters urged the agencies to

modify the interim regulations to clarify

that the mandatory sanctions must

apply to offenders who are convicted of

‘‘driving while intoxicated’’ or ‘‘driving

under the influence,’’ even if their

alcohol concentrations are not known.

The agencies agree with these

comments. Offenders who were

convicted of driving while intoxicated

or driving under the influence should

not avoid the mandatory sanctions,

simply because their alcohol

concentrations are not known. Congress

would not have intended such an

outcome. To provide clarification in the

implementing regulations, the agencies

have modified the definition of the

terms ‘‘driving while intoxicated’’ and

‘‘driving under the influence’’ to mean

‘‘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, or an equivalent non-BAC

intoxicated driving offense.’’

These definitions should clarify that,

to comply with the Section 164

program, a State’s law must apply the

mandatory sanctions to any offender

who is convicted of driving while

intoxicated or driving under the

influence of alcohol, whether or not the

conviction is based on the offender’s

alcohol concentration level. The

definitions should clarify also that the

driving while intoxicated or driving

under the influence offense must be the

‘‘standard’’ offense in the State. In other

words, the sanctions need not apply to

lesser included offenses (such as .05

BAC driving while impaired offenses),

but it is not sufficient if the sanctions

apply only to ‘‘high BAC’’ (such as .17

or .20 BAC) offenses.

MADD and the State of Wisconsin

recommended two additional changes.

They urged the agencies to expand these

definitions to require the imposition of

mandatory sanctions on offenders who

refuse to submit to an alcohol test, even

if they are not convicted of driving

while intoxicated or driving under the

influence, and on offenders who are

convicted of driving while under the

influence ‘‘of drugs’’ other than alcohol.

The agencies are unable to adopt

these recommendations because they

are outside the scope of the section 164

program, as authorized by Congress.

section 164 specifically provides that a

conforming ‘‘repeat intoxicated driver

law’’ is a law that applies the specified

mandatory sanctions to individuals

‘‘convicted’’ of a second or subsequent

offense. Accordingly, the agencies do

not have the authority to require that

States apply these sanctions to offenders

who are not convicted of the driving

while intoxicated or driving while

under the influence offense. As

discussed above, the agencies have

modified the regulations to clarify that

the mandatory sanctions specified in

section 164 must apply to offenders who

refuse to submit to an alcohol test and

are convicted of driving while

intoxicated or driving under the

influence. However, the sanctions need

not apply to offenders who refuse to

submit to an alcohol test and are not

convicted of such an offense. Of course,

if States choose to apply additional

sanctions to these offenders, the section

164 program will not prevent them from

doing so.

Similarly, there is nothing in the

language or the legislative history of

section 164 that indicates that Congress

expected that the mandatory sanctions

must apply to offenders convicted of

driving under the influence ‘‘of drugs’’

other than alcohol. In fact, several

portions of the statute make it clear that

the program was designed specifically

to address repeat offenders convicted

only of driving while intoxicated or

under the influence ‘‘of alcohol.’’ For

example, the offenses are defined to

require that the driver had ‘‘an alcohol

concentration above the permitted

limit.’’ In addition, two of the sanctions

that must be imposed include requiring

‘‘an assessment of the individual’s

degree of abuse of alcohol [not drugs]’’

and vehicle sanctions, such as ‘‘the

installation of an ignition interlock

system’’ on the offenders’’ vehicles,

which would prevent the offender from

starting or operating a vehicle with any

alcohol (not drugs) in his or her system.

Since these recommended changes

would exceed the scope of section 164,

they have not been adopted in this final

rule.

As stated above, the interim

regulations defined the term ‘‘repeat

intoxicated driver’’ to mean ‘‘a person

who has been convicted previously of

driving while intoxicated or driving

under the influence within the past five

years.’’ The agencies received two

comments, from the State of Delaware

and from Advocates, regarding the

meaning of this definition.

Specifically, Delaware noted that

‘‘this provision does not take into

account an offender who has been

arrested of more than one DUI offense

within a 5 year period but has not been

convicted of both at the time of the

second or subsequent arrest.’’ Advocates

requested clarification about the effect

of this definition on States that do not

maintain or, ‘‘look back’’ at, records for

the full five-year period. According to

Advocates, ‘‘the agencies do not

unequivocally state that laws with only

a 3 year ‘‘look back’’ provision do not

comply with the implementing

regulations in the interim final rule.’’

59116 Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Rules and Regulations

The agencies wish to verify that

Delaware’s interpretation of the

regulations is correct. To determine

whether an individual is a repeat

intoxicated offender for the purpose of

this program, the State is required to

consider whether an individual was

convicted (not arrested) more than once

within a five-year period. In response to

the comments received from Advocates,

we wish to clarify that, to comply with

the section 164 requirements, States

must not only provide that mandatory

sanctions apply to offenders convicted

more than once within a five-year

period, the States must also ensure that

such sanctions are imposed. This

requires necessarily that the State has

the ability to, and in fact does, ‘‘look

back’’ five (or more) years to determine

whether the sanctions should be

applied.

To further clarify this definition, the

agencies have modified the language

slightly, so that it now provides that the

term ‘‘repeat intoxicated driver’’ means

‘‘a person who has been convicted of

driving while intoxicated or driving

under the influence of alcohol more

than once in any five-year period.’’

D. Specific Comments Regarding the

Repeat Intoxicated Driver Criteria

Most comments received by the

agencies in response to the interim final

rule related to the specific criteria that

repeat intoxicated driver laws must

meet for a State to avoid a transfer of

funds. Comments were received

regarding each of the four penalties,

described in the criteria, that State laws

must impose on repeat intoxicated

drivers. These comments and the

agencies’ responses to them are

discussed in greater detail below.

1. A Minimum One-Year License

Suspension

Section 164 provides that, to avoid a

transfer of funds, the State must have a

law that imposes a mandatory minimum

one-year driver’s license suspension on

all repeat intoxicated drivers. The

statute defines the term ‘‘license

suspension’’ to mean ‘‘the suspension of

all driving privileges.’’ Accordingly, the

interim final rule provided that the

offender must be subject to a hard

suspension (or revocation), for a

minimum period of one year, during

which the offender cannot be eligible for

any driving privileges, such as a

restricted or hardship license.

The agencies received comments from

NAGHSR, LifeSafer, and the States of

Wisconsin, Michigan and Delaware

objecting to the one-year hard license

suspension requirement. These

commenters cited a number of reasons

for their objections. Wisconsin,

NAGHSR and Michigan, for example,

thought a one-year hard license

suspension could result in financial

hardships to some offenders,

particularly those who live in rural

communities. According to comments

from both NAGHSR and Michigan,

‘‘Rural offenders would be especially

adversely impacted since they may not

be able to arrange for alternative means

of transportation during such an

extended period.’’ In addition,

Delaware, Wisconsin and Michigan

suggested that, ultimately, this strict

requirement might have the unintended

effect of, as Delaware put it, offering

some offenders with ‘‘no alternatives’’

and encouraging them to drive without

a valid license. These commenters all

seem to agree that repeat intoxicated

drivers should be subject to a one-year

driver’s license suspension that

includes some period of hard

suspension, but they suggested hard

suspension periods of less than one

year, such as 30 or 60 days.

Further, NAGHSR asserted that it had

‘‘found nothing in the legislative history

of [section 164] which would support

the need for a one-year hard license

suspension.’’ In addition, Michigan

stated that it thought it ‘‘unlikely that

any State will be in compliance with the

provision’’ and NAGHSR predicted that

‘‘few State legislatures will be willing to

enact [conforming] legislation.’’

The agencies do not share the

concerns that were expressed in these

comments. Regarding the agencies’

authority to include in the regulations a

one-year hard driver’s license

suspension requirement, the agencies

have determined that inclusion of this

requirement is not only supported by

section 164’s legislative history, but is

required by the plain language of the

statute itself. The statute provides

specifically that State laws must

provide, ‘‘as a minimum penalty, that

[repeat intoxicated drivers] * * * shall

receive a driver’s license suspension for

not less than 1 year’’ and the statute

defines the term ‘‘license suspension’’ to

mean ‘‘the suspension of all driving

privileges.’’ [Emphasis added.]

Regarding the predictions that few, if

any, States would enact conforming

legislation, we note that, to date, 23

States and the District of Columbia have

laws that NHTSA has determined meet

all the section 164 requirements and at

least 11 additional States meet the oneyear hard driver’s license suspension

criterion, although they do not meet all

the requirements of the section 164

program. We note also that, although

they objected initially to this criterion in

their comments to the interim final rule,

Michigan and Utah are two of the States

whose laws have been determined to

comply fully with section 164,

including the one-year hard license

suspension requirement.

Regarding the comments that suggest

that a one-year hard license suspension

could result in financial hardships to

some offenders, particularly those who

live in rural communities, the agencies

note that the research that has been

performed in this area does not support

that conclusion. Although the research

to date has not studied the impact of

hard suspensions of a full one-year

period, there has been research that

found that hard suspensions of a shorter

length of time did not have an impact

at all on an offender’s employment. In

a 1996 study of three States with

administrative license revocation

programs, for example, researchers

found that 94% of the offenders who

were employed at the time of arrest

were still working after a one-month

revocation period. The researchers

found also that the percentage of

offenders still employed one month

after arrest was the same in comparison

States that did not apply a license

revocation sanction. Moreover, the

agencies note that many of the States

with conforming laws contain regions

that are rural in nature. Some of the

States with conforming laws include

Alabama, Arizona, Iowa, New

Hampshire, Oregon and Utah.

The agencies recognize, as the

commenters do, that many offenders

who are subject to license suspensions

or revocations operate motor vehicles

anyway, without a valid license. As we

noted in the interim final rule, 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.

However, the agencies do not believe

that the elimination or even the

reduction of driver licensing sanctions

is the best remedy for this problem. We

believe that Congress hoped that States

would address that concern instead by

enacting strong vehicle sanctions,

including those outlined in the second

criterion of the section 164 program

(and discussed in greater detail below),

such as by impounding or immobilizing

the motor vehicles owned by the

offender during the suspension or

revocation period. In addition, States

are encouraged, under NHTSA’s Section

410 program, to establish separate

vehicle sanctions for offenders who

operate a motor vehicle while their

license is under suspension or

revocation.

Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Rules and Regulations 59117

For the reasons discussed above, this

portion of the interim regulations has

been adopted without change.

2. Impoundment or Immobilization of,

or the Installation of an Ignition

Interlock System, on Motor Vehicles

Section 164 provides that, to avoid

the transfer of funds, the State must

have a law that requires the

impoundment or immobilization of, or

the installation of an ignition interlock

on, each motor vehicle owned by the

repeat intoxicated offender.

The term ‘‘impoundment or

immobilization’’ was defined in the

interim regulations to mean ‘‘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,’’ and

the agencies indicated that the

definition would also include ‘‘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.’’ The

agencies defined the term ‘‘ignition

interlock system’’ in the interim

regulations 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 interim final rule explained that

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.

The interim final rule also specified

that, to comply with the interim

regulations, the State law must require

that the impoundment or

immobilization must be imposed during

the one-year suspension period, or that

the ignition interlock be installed at the

conclusion of the suspension period.

The interim regulations did not specify

the length of time during which these

penalties must remain in effect.

The impoundment, immobilization or

ignition interlock criterion is the most

complex of the section 164

requirements. Accordingly, it is not

surprising that it generated the most

comments. Every respondent that

submitted comments in response to the

interim final rule addressed at least

some aspect of this requirement. The

comments received regarding this

criterion and the agencies’ responses to

them are discussed in detail below.

a. Mandatory Penalty. The agencies

explained, in the preamble to the

interim final rule, that 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. Later in the interim

rule, when describing the time frame for

these three penalties, the agencies stated

that 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. These statements

generated four comments regarding the

mandatory nature of this criterion.

AAMVA and the State of North

Dakota objected to the statement that the

State law must ‘‘require that at least one

of the three penalties will be imposed.’’

They asserted that the impoundment,

immobilization or ignition interlock

sanctions need only ‘‘be available’’ or

that they ‘‘may’’ be imposed. These

commenters did not believe that these

sanctions ‘‘must’’ be imposed. The

agencies disagree. Section 164 provides

for four minimum penalties, and we

find that there is nothing in either the

statutory language or the legislative

history to suggest that three of the

penalties are mandatory and the fourth

(the impoundment, immobilization or

ignition interlock requirement) is

optional.

The commenters seem to base their

assertion on the fact that the statute

provides that State laws must require

that repeat intoxicated drivers must

‘‘receive’’ license suspensions,

minimum sentences and assessment and

treatment, while the statute provides

that they must ‘‘be subject to’’ the

impoundment, immobilization or

ignition interlock requirement. The

agencies conclude that the difference in

language in this provision does not

signify any difference in the mandatory

nature of the requirement, but is simply

a grammatical device used, since an

offender may ‘‘receive’’ a suspension, a

sentence, an assessment and treatment,

but an offender would not ‘‘receive’’ an

impoundment, immobilization or

ignition interlock installation. Rather

the offender is ‘‘subject to’’ these

sanctions when the sanctions are

applied to the offender’s vehicles. The

agencies continue to conclude that, to

avoid a sanction, the State law must

require that at least one of these three

penalties must be imposed on all repeat

intoxicated drivers.

The State of Nevada objected to the

statement in the interim final rule that

‘‘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.’’ [Emphasis added.]

Nevada thought this statement was

meant to signify that States must impose

the impoundment or immobilization

penalty (during the license suspension

period) and also the ignition interlock

penalty (at the end of the suspension

period).

However, this was not the meaning

that the agencies had intended to

convey. Rather, the statement was

included simply to clarify the time

frames for each of these sanctions.

Regarding the mandatory nature of these

sanctions, the agencies believe the plain

language in the interim regulations is

clear. It provides, ‘‘to avoid the transfer

of funds * * *, a State must enact and

enforce a law that establishes that all

repeat intoxicated drivers shall * * * be

subject to either * * * the

impoundment * * *, immobilization

* * * or ignition interlock [sanction].’’

In addition, as the agencies explain in

the preamble to the interim final rule,

‘‘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.’’ Since the statement

which Nevada found ambiguous was in

the preamble to the rule, and not the

interim regulations themselves, no

regulatory changes are needed in this

final rule to clarify this statement.

Moreover, we note that no other

commenters interpreted the interim

final rule in this way. Advocates, for

example, stated in its comments, ‘‘The

agencies appropriately analyzed the

distinct purposes of these sanctions, and

correctly noted that section 164 requires

the imposition only of one sanction

since they are set forth disjunctively in

the statute.’’

Accordingly, no changes to the

interim regulations have been adopted

in response to these comments.

b. Timing of the Sanctions. In the

interim final rule, the agencies

explained that 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. Therefore, to

determine when these penalties must be

imposed, the agencies considered the

purpose of the three penalties.

The agencies recognized in the

interim rule that the purpose of an

impoundment or immobilization

sanction is very different from that of

the installation of an ignition interlock

system. We explained that, when an

individual convicted of driving while

intoxicated is subject to a driver license

suspension, it is expected that the

59118 Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Rules and Regulations

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.

Accordingly, the agencies concluded

that the laws that provide for the

impoundment or immobilization of

motor vehicles are designed to ensure

that driver’s license suspension

sanctions are not ignored. They seek to

prevent offenders from driving vehicles

while their driver’s licenses are under

suspension.

The agencies explained in the interim

final rule that 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. The agencies stated

that 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 permitted to drive again, from

drinking and driving.

Based on the nature of these penalties,

the agencies decided in the interim final

rule not to adopt a uniform time frame

for these three penalties. Instead, the

interim regulations provided that the

State law must require either the

impoundment or immobilization of the

offender’s vehicles during the one-year

suspension term or the installation of an

ignition interlock system at the

conclusion of the suspension. The

interim regulations did not specify the

length of time during which these

penalties must remain in effect.

The agencies received a number of

comments regarding these features of

the interim regulations.

Some of the comments expressed

support for these aspects of the interim

regulations. For example, Advocates

stated, ‘‘the agencies accurately

recognize that impoundment or

immobilization are sanctions that

should be imposed concurrently with a

one-year suspension, whereas the

ignition interlock would logically apply

after the suspension is completed.’’

However, most of the comments

received by the agencies were critical of

these aspects of the interim rule.

Regarding the application of

impoundment or immobilization

sanctions, many of the commenters

were troubled that the interim

regulations did not establish a minimum

length of time for these penalties. NCSL,

NAGHSR and the State of Michigan, for

example, were concerned that a State

could comply with this requirement by

impounding or immobilizing a vehicle

for a single day, and MADD and

LifeSafer ventured that a State may even

be able to comply by impounding or

immobilizing a vehicle for only an hour.

Some of the commenters specified a

minimum period of time that would be

appropriate, such as 30 days, which was

suggested by MADD and Dr. Voas, or

15–30 days, which was suggested by

LifeSafer.

Some of the commenters also

suggested that the impoundment or

immobilization sanction should be

imposed quickly, to maximize the

impact of these sanctions and to prevent

offenders from transferring their

vehicles. MADD, LifeSafer and Dr. Voas,

for example, urged the agencies to

require that such sanctions occur

immediately, at the time of the

offender’s arrest.

Regarding the installation of ignition

interlock devices, many of the

commenters objected to the requirement

that ignition interlock devices must be

installed at the conclusion of the oneyear driver’s license suspension.

LifeSafer asserted that these devices

have been shown to be effective and

predicted that a one-year delay would

greatly curtail their use. NCSL and the

State of Michigan thought it was

unlikely that any State would adopt the

ignition interlock sanction under these

conditions. MADD asserted that, ‘‘the

longer the ignition interlock device

remains on the offender’s vehicle, the

more effective it is in changing his or

her behavior and increasing the

likelihood of reducing recidivism.’’

Accordingly, MADD suggested that

ignition interlock devices should be

installed at the time of arrest and should

remain on the offender’s vehicle for a

minimum period of one year following

license reinstatement.

The agencies have decided not to

change the regulations in response to

these comments. As the agencies

explained in the interim final rule,

while section 164 required that State

laws must provide for the impoundment

or immobilization of, or the installation

of an ignition interlock device on, motor

vehicles, the statute was silent regarding

the timing of these sanctions. Section

164 did not specify the length of time

that these sanctions must remain in

effect, or require that these sanctions

must take place immediately at the time

of arrest.

Moreover, the use of these sanctions

is still a relatively new development in

the field of impaired driving

countermeasures. The agencies do not

believe there are currently sufficient

research findings to dictate a minimum

period of time for these sanctions, in the

absence of statutory direction. In

addition, while States may choose to

require the imposition of these

sanctions at the time of the offender’s

arrest as part of their programs, the

agencies do not believe we have

sufficient information, in the absence of

statutory direction, to make this a

condition of compliance. Plus, we do

not want to stifle innovation. The rule

has been drafted, within the framework

of the statute, to provide States with as

much flexibility as possible, to enable

them to establish the terms for

conducting their programs in ways that

are most appropriate under their own

statutory schemes.

While a number of the commenters

were concerned that States would be

able to qualify under this criterion by

impounding or immobilizing vehicles

for only a day or even an hour, the

agencies note that, to date, 11 States and

the District of Columbia have

demonstrated compliance with this

section 164 criterion based on an

impoundment or immobilization law,

and no State law provides that vehicles

(or the license plate or registration) will

be impounded or immobilized for such

an insignificant period of time.

Although two States provide for a fiveday minimum and one State requires a

30 day minimum impoundment or

immobilization, all other States and the

District of Columbia require that the

impoundment or immobilization remain

in effect for the duration of the license

suspension or for a minimum of at least

one year.

Regarding the installation of ignition

interlock devices, the agencies recognize

that a significant number of offenders

continue to drive even after they lose

their driving privileges, and that many

of them choose not to reapply for a

license even once they become eligible

to do so. We recognize also that ignition

interlock devices have been shown to be

effective at reducing the incidence of

impaired driving during their use.

Accordingly, the agencies appreciate the

sentiments expressed by a number of

the commenters, who suggested that

strategies be used to create an incentive

for repeat offenders to drive only with

a valid license and not to drink and

drive. These commenters recommended

that we permit States to restore

restricted driving privileges to repeat

intoxicated drivers and install ignition

interlock devices on their vehicles prior

to the completion of a one-year hard

license suspension.

However, the agencies continue to

conclude that such a strategy is not

permitted under section 164, since the

Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Rules and Regulations 59119

statute specifically provides under the

first criterion (discussed in detail above)

that State laws must require that repeat

intoxicated drivers receive a one-year

suspension of all their driving

privileges. In addition, we find that,

while the installation of ignition

interlocks has been shown to reduce the

incidence of drinking and driving, other

strategies (such as impoundment,

immobilization or strict driving while

suspended laws) may be more

appropriate when seeking to prevent

offenders whose licenses have been

suspended from getting behind the

wheel of a vehicle during their periods

of suspension.

Morever, we note that, if States

choose to install ignition interlock

devices on offenders’ vehicles prior to

the end of the one-year license

suspension, as an extra measure of

protection against impaired driving,

even though the offender should not be

driving at all, the regulations will not

prevent the States from doing so.

However, to satisfy the one-year license

suspension criterion of section 164,

such States may not restore to these

offenders any driving privileges during

the one-year period. In addition, to

satisfy the impoundment,

immobilization or ignition interlock

criterion of section 164, the ignition

interlock devices must remain on the

offenders’ vehicles for some period of

time after the license suspension has

ended.

While some commenters were

concerned that States would not be

willing to adopt a law that provides for

the installation of ignition interlock

devices under the conditions

established in the interim regulations,

the agencies note that, to date, 12 States

have demonstrated compliance with

this section 164 criterion based on an

ignition interlock law.

For all of the reasons discussed above,

the agencies have adopted this portion

of the interim regulations without

change.

c. All Vehicles Owned by the

Offender. The agencies indicated in the

interim final rule that, 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 number of comments were

submitted to the agencies objecting to

this feature of the rule. The comments

raised two types of concerns. Some

considered this requirement to be overly

broad; others considered its scope not to

be broad enough.

The commenters who considered the

requirement to be overly broad called it

‘‘unreasonably severe,’’ ‘‘unjustified’’

and ‘‘counter productive.’’ Dr. Hedlund

of Highway Safety North, for example,

explained that ‘‘State impoundment and

immobilization laws typically apply to

a single vehicle (the vehicle driven by

the offender when the offense was

committed), not to all vehicles owned

by the offender’’ and that ‘‘State

interlock programs typically require the

offender to install an interlock on his (or

her) primary vehicles and require the

offender to drive only that vehicle.’’

Dr. Hedlund, LifeSafer, NAGHSR and

others expressed concern that such a

strict application of this requirement

could prove to be a disincentive to its

adoption and use. In addition, the State

of Wisconsin questioned whether the

impoundment or seizure of all vehicles

owned by an offender would raise

constitutional issues. As an alternative,

LifeSafer recommended that the ignition

interlock sanction should be ‘‘tied’’ to

the offender’s license, rather than to the

vehicles owned by the offender (i.e., as

a license restriction that provides that

the offender may drive only vehicles on

which ignition interlocks are installed).

Finally, NAGHSR asserted that ‘‘nothing

in the legislative history of this

provision indicates that Congress

intended the sanctions to apply to every

vehicle owned by the offender.’’

Regarding the agencies’ authority to

require that these sanctions apply to

every vehicle owned by the offender,

the agencies have determined that

inclusion of this requirement is not only

supported by section 164’s legislative

history, but is required by the plain

language of the statute itself. Section

164 provides specifically that repeat

intoxicated offenders must ‘‘be subject

to the impoundment or immobilization

of each of the individual’s motor

vehicles or the installation of an ignition

interlock system on each of the motor

vehicles [emphasis added].’’

The agencies believe Congress

established these requirements because,

for repeat offenders, taking his or her

vehicle at the time of arrest and placing

an ignition interlock restriction on the

offender’s license may not be enough.

Congress wanted to do more than get the

attention of these offenders. Congress

wanted States to take steps to prevent

repeat intoxicated drivers from driving

at all during their license suspension or

from drinking and driving once their

licenses were returned. If one of the

offender’s vehicles has been impounded

or immobilized, but another vehicle is

available at home, or if one of the

offender’s vehicles is fitted with an

ignition interlock device and another is

not, these objectives may not be

achieved.

Moreover, the agencies note that, to

date, 25 States and the District of

Columbia have been determined to

comply with this criterion, by applying

either an impoundment, immobilization

or the installation of ignition interlock

devices on all motor vehicles owned by

repeat intoxicated drivers.

The commenters who considered the

requirement not to be broad enough

were concerned that offenders could

avoid these sanctions by using a variety

of ‘‘loopholes.’’ Dr. Hedlund of Highway

Safety North, MADD and the State of

Michigan, for example, were concerned

that offenders could transfer title to

their vehicles after arrest and prior to

conviction; the State of Wisconsin

suggested that offenders could register

vehicles using the names of friends or

family members, or other aliases; and

MADD was concerned that offenders

could operate vehicles that are ‘‘owned’’

by other people.

Section 164 did not require that State

laws address these particular issues, and

the agencies have not expanded this

criterion by adding any such

requirements. The agencies note,

however, that some States have enacted

laws that surpass the minimum

requirements established in section 164,

and include provisions that have the

potential to ‘‘close’’ some of these

‘‘loopholes.’’ Some States, for example,

apply their vehicle sanctions not only to

vehicles ‘‘owned’’ by the repeat

offender, but also to vehicles ‘‘operated’’

by such offender. Other State laws

contain provisions that specifically

prohibit offenders from transferring title

to their vehicles. States that choose to

include in their laws similar provisions,

which exceed the section 164

requirements, are able (and encouraged)

to do so, but such provisions are not

necessary for the State to demonstrate

compliance with the impoundment,

immobilization or ignition interlock

criterion.

For the reasons discussed above, this

portion of the interim regulations has

been adopted without change.

d. Exceptions Permitted. In the

interim final rule, the agencies

explained that, consistent with past

practices under the section 410

program, the agencies will permit States

to provide limited exceptions to the

impoundment or immobilization

requirements 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. However, the

agencies decided not to permit an

exception to the installation of the

ignition interlock system requirement.

59120 Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Rules and Regulations

The interim final rule explained that 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.

Comments regarding this portion of

the interim regulations suggested that

additional exceptions should be

permitted. NAGHSR, NCSL and the

States of Delaware, Michigan and

Wisconsin emphasized that the

imposition of an impoundment or

immobilization or the installation of

ignition interlock devices can be very

costly to offenders and their families.

Not only do these sanctions cause

vehicles to be unavailable, but there are

also administrative costs associated

with the sanctions. The commenters

asserted that these costs can result in an

undue financial hardship for many

families.

In addition, NAGHSR and LifeSafer

both asserted that there is a need for an

employer exception. LifeSafer explained

that, in States where the ignition

interlock device is tied to a restriction

on the license, States ‘‘have recognized

the need for an employer exemption

that allows the offender to operate an

employer vehicle in the course and

scope of employment without the

[ignition interlock device]’’ so long as

certain conditions are met. LifeSafer

states that the exemption is necessary

‘‘to avoid undue hardship on an

employer.’’

NAGHSR and LifeSafer indicated that

the employer exception they seek is

needed if the ignition interlock device is

tied to a restriction on the offender’s

license. Since section 164 requires that

the installation of ignition interlocks

must be tied to all vehicles owned by

the offender, and not to the offender’s

driver’s license, the agencies believe the

employer exception sought by NAGHSR

and LifeSafer is not needed.

Accordingly, the agencies have not

added an employer exception to the

regulations.

Based on the concerns raised in the

comments regarding the financial

hardship that families may suffer due to

the administrative expenses that may be

imposed in connection with the

installation of ignition interlock devices

on each vehicle owned by the offender,

however, the agencies have

reconsidered their decision to not

permit a hardship exception to the

ignition interlock sanction.

Accordingly, the interim regulations

have been modified in this final rule to

add an exception to the ignition

interlock requirement. A State may

provide an exception to the ignition

interlock requirement for financial

hardship, provided the State law

requires that the offender may not drive

a vehicle without an ignition interlock

system, such as by requiring that a

restriction be placed on the offender’s

license.

To ensure that the availability of these

exceptions do not undermine the

impoundment, immobilization or

ignition interlock requirements,

exceptions must be made in accordance

with Statewide published guidelines

developed by the State, and in

exceptional circumstances specific to

the offender’s motor vehicle.

e. Other Comments Related to the

Sanctions. The interim regulations

provided that ‘‘impoundment or

immobilization’’ included ‘‘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.’’ The

interim regulations provided that these

terms include also ‘‘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.’’

LifeSafer objected to this aspect of the

interim regulations. According to

LifeSafer, ‘‘physically revoking the

license plate or canceling the

registration is not anywhere near as

strong a message of physically taking or

rendering incapable the operation [of] a

motor vehicle. Secondly, the sanction is

rendered ineffective because another

license plate can be quickly obtained or

transferred from another vehicle or the

vehicle re-registered under another

name.’’

The agencies find, based on studies

conducted in Minnesota and Ohio, that

the research demonstrates that the

revocation or suspension of vehicle

registrations and license plates is an

effective sanction. In fact, NHTSA has

encouraged States to impose such a

sanction on repeat offenders and

individuals who drive with a suspended

driver’s license, under its section 410

program since 1992. Moreover, the

agencies are not aware of any research

findings that demonstrate a significant

difference in effectiveness between the

impoundment or immobilization of a

motor vehicle as compared with the

revocation or suspension of a vehicle

registration or license plate. In the

absence of any such findings, the

agencies prefer to provide the States

with some flexibility in this regard.

Finally, NAGHSR recommended in its

comments that ignition interlocks

should be used as part of a

comprehensive, interrelated system,

such as one under which the driver’s

license of the offender is suspended and

the offender’s vehicle is impounded or

immobilized for a short period (e.g., 15–

30 days), at the time of arrest. Once that

period of time passes, limited driving

privileges are restored, the vehicle may

be reclaimed and an ignition interlock is

installed. Then, when the offender

participates and completes treatment,

the ignition interlock is removed.

The agencies appreciate the objectives

that NAGHSR seeks to meet by

suggesting such an approach, and we

note that States may take this type of

approach, if they wish to do so, when

fashioning sanctions for first offenders.

However, as stated previously in this

final rule, such an approach would not

be permitted under section 164 for

repeat offenders. Under such an

approach, a repeat intoxicated driver

would be permitted to receive driving

privileges during the initial one-year

driver’s license suspension period, and

the statutory language contained in

section 164 specifically requires that all

driving privileges must be suspended

for a period of one year. Accordingly,

the agencies are unable to address this

comment without an amendment to the

underlying statute.

Accordingly, no changes will be made

to the interim regulations in response to

these particular comments.

3. An Assessment of Their Degree of

Alcohol Abuse, and Treatment as

Appropriate

Section 164 provides that, to avoid

the transfer of funds, the State must

have a law that requires that all repeat

intoxicated drivers must receive ‘‘an

assessment of the individual’s degree of

abuse of alcohol and treatment as

appropriate.’’ In the interim final rule,

the agencies specified further that the

State’s law must require that all repeat

intoxicated drivers must undergo an

alcohol assessment and the law must

authorize the imposition of treatment as

appropriate.

The agencies received comments

regarding this criterion from LifeSafer,

NAGHSR, MADD, the State of Delaware

and Dr. Voas. Both NAGHSR and

LifeSafer indicated that they are aware

that there are some States that provide

for mandatory treatment of repeat

intoxicated offenders, but may not

require that these offenders be assessed.

In their view, since the treatment is

provided automatically, these States

should be considered to be fully in

Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Rules and Regulations 59121

compliance with the assessment and

treatment requirement.

It is the view of the agencies that, if

a State provides for mandatory

treatment of repeat intoxicated offenders

and the State’s mandatory treatment

program includes a mandatory

assessment component, such a program

will enable the State to demonstrate

compliance with the section 164

assessment and treatment criterion. If

assessments are not conducted of all

repeat offenders as part of such a

program, however, the agencies will

find that the State’s program does not

fully comply. This decision is based on

the agencies’ conclusion that the

purpose of the assessment is to

determine not only whether an offender

should undergo treatment, but also what

type and level of treatment is

appropriate for that offender. Programs

that assign treatment to offenders

without first assessing the needs of

those offenders may be ineffective in

resolving any alcohol abuse problems

that the offenders may have. The

agencies note that, in addition to the

District of Columbia and the 23 States

that meet all of the section 164

requirements, at least 10 additional

States meet the assessment and

treatment criterion.

The agencies received comments also

from MADD, the State of Delaware and

Dr. Voas regarding this criterion.

According to their statements, these

commenters do not believe the agencies

went far enough in the interim

regulations when we provided that the

State’s law ‘‘must authorize the

imposition of treatment as appropriate.’’

These commenters urged the agencies

instead to require that States make

treatment mandatory. MADD, for

example, stated that, ‘‘while the rule

requires mandatory alcohol assessment,

there is no requirement that treatment is

mandatory even when the results of the

assessment calls for treatment.’’ Dr.

Voas explained why he thought such a

requirement should be adopted. He

asserted that ‘‘the value of assessment is

entirely dependent on the offender

receiving the treatment.’’

As the agencies indicated in the

interim final rule, there is a wide array

of programs and activities that can be

used to treat offenders who have alcohol

abuse problems. Because of the many

options available, the agencies believe it

would be difficult to establish a specific

requirement in the regulations that

would have meaning, and also provide

the States and their judicial systems

with the flexibility they need to have

the greatest impact.

In his comments, Dr. Voas took

particular issue with a statement that

was included in the preamble to the

interim final rule, in which the agencies

said that, ‘‘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).’’ The

agencies wish to clarify that, the

agencies did not mean to imply by this

statement that States should not refer

individuals to treatment if treatment is

warranted. Since the Section 164

requirements provide that all repeat

intoxicated drivers must be assessed, we

trust that the court systems will refer

those offenders to treatment when

warranted, and that offenders will be

referred to the treatment that is most

appropriate. Since the statement to

which Dr. Voas objected was in the

preamble to the rule, and not the

interim regulations themselves, no

regulatory changes are needed in this

final rule to clarify this statement.

For the reasons discussed above, this

portion of the interim regulations has

been adopted without change.

4. Mandatory Minimum Sentence

Section 164 provides that, to avoid a

transfer of funds, the State must have a

law that imposes 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.

The agencies explained in the interim

final rule that, consistent with NHTSA’s

administration of the section 410

program, the term ‘‘imprisonment’’ has

been defined to include ‘‘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.’’ In addition, we

indicated in the interim final rule that

house arrests would be included within

the definition of ‘‘imprisonment’’ under

the section 164 program, provided that

electronic monitoring is used.

We received five comments in

response to the interim final rule

regarding this criterion. Most of the

comments received related to the

agencies’ decision to include house

arrests within the definition of

imprisonment.

MADD and Dr. Voas objected to its

inclusion. They argued that a house

arrest for a period of only five or ten

days is not a sufficiently strong penalty.

MADD, for example, asserted ‘‘House

arrest does not carry with it the specific

deterrence or social stigma that

incarceration in a jail facility does.’’

According to MADD, such a penalty

‘‘will have little or no impact on

reducing recidivism which is the very

purpose of this legislation.’’

Conversely, LifeSafer, NAGHSR and

Advocates supported the inclusion of

house arrest, coupled with electronic

monitoring, within the definition of the

term imprisonment. LifeSafer

‘‘applauded’’ this decision based on its

belief that ‘‘jail is the least effective

sanction to reduce recidivism, States

have severe jail overcrowding problems

* * * [and] studies which indicate

electronic monitoring has an impact

greater than jail on reducing

recidivism.’’ NAGHSR called this aspect

of the interim rule the ‘‘most positive

attribute of the interim final

regulations.’’ According to Advocates,

‘‘although the historic use of the word

imprisonment entails confinement in a

traditional prison facility, we agree with

the agencies that non-traditional

approaches and the use of technological

advancements should be utilized in

attempt to make inroads against repeat

intoxicated offenders. In this regard it is

clear that courts are using home

confinement and monitoring as an

alternative means of detaining criminal

offenders.’’

As noted in the interim final rule,

recent NHTSA research seems to

indicate that house arrests are effective

if they are coupled with electronic

monitoring. While the agencies

recognize that the periods of house

arrest studied tended to be longer than

five or ten days, we consider this

alternative means of detaining offenders

to be a promising strategy that should

not be stifled under the provisions of

these regulations. Accordingly, the

agencies have decided to continue to

permit States to use house arrest,

coupled with electronic monitoring, in

lieu of other confinement methods.

Dr. Voas suggested in his comments

that, if the use of house arrest is

permitted under the regulations, the

State should extend the period of

detention from five or ten days to a

period of 90 days. The agencies do not

find authority for establishing such an

alternative length of time in the section

164 statute. Accordingly, we have not

adopted this change in the regulations.

Finally, NCSL pointed out that many

States have, over the years, enacted

mandatory minimum sentences for

repeat intoxicated drivers, in response

to the Federal requirements that were

established in the section 410 program.

59122 Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Rules and Regulations

However, since section 164 requires

States to establish a longer mandatory

sentence (five and ten days, rather than

48 hours), even these States will need to

enact new legislation. The agencies

agree with NCSL’s observation.

However, these longer sentencing

requirements are dictated by the statute.

This portion of the interim regulations

has been adopted without change.

E. Certifications

The interim final rule provided that,

to avoid a transfer of funds, each State

must submit a certification

demonstrating compliance with the four

section 164 criteria, which includes

citations to all applicable provisions of

their laws, as well as regulations or case

law, as needed. The certifications must

also assert that the State is enforcing its

law. According to the interim final rule,

once a State has been determined to be

in compliance with the section 164

requirements, the State would not be

required to resubmit certifications in

subsequent fiscal years, unless the

State’s law had changed or the State had

ceased to enforce its repeat intoxicated

driver law. The interim final rule

provided that 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.

The interim final rule provided

further that, to avoid a transfer in FY

2001, the agencies must receive a State’s

certification no later than September 30,

2000, and the certification must indicate

that the State ‘‘has enacted and is

enforcing a repeat intoxicated driver law

that conforms to 23 U.S.C. 164 and [the

agencies’ implementing regulations].’’

States found in noncompliance with the

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 a transfer

of funds in that following fiscal year.

The interim rule indicated that such

certifications must be submitted by

October 1 of the following fiscal year.

In its comments in response to the

interim final rule, Advocates

recommended that States should be

required to submit more than a

certification to demonstrate that they are

enforcing their repeat intoxicated driver

laws. Advocates stated, ‘‘while the

agencies need not require burdensome

evidence of such enforcement, some

indicia that a good faith effort is being

made to enforce the repeat offender law

should be sought. Since convictions and

penalties imposed under such a law are

relatively simple to establish through

computerized records, the agencies can

require some indicia as to the level of

state enforcement without imposing

significant burdens on the states.’’

The agencies have not adopted this

change. While there may be information

in computerized records that States

would be able to compile and submit to

the agencies, we are uncertain how such

a sufficient ‘‘level of enforcement’’

would be defined. Moreover, we find

that the benefit of such a reporting

requirement would not justify the effort

that would be required.

Although the agencies did not receive

any comments regarding the dates by

which certifications must be submitted,

we have concluded that this feature of

the regulations requires clarification.

The interim final rule provided that

conforming certifications were due by

September 30 to avoid a transfer of

funds in FY 2001, and that certifications

from States that did not previously

comply with section 164 were due by

October 1 to avoid a transfer of funds in

subsequent fiscal years. To avoid

confusion, the agencies have concluded

that the same date should apply in any

fiscal year. Accordingly, the regulations

have been changed to provide that, to

avoid a transfer of funds in FY 2001 or

in any subsequent fiscal year, States will

be required to submit certifications by

September 30.

In addition, some States enacted

conforming laws prior to September 30,

2000, but their new laws will not be

effective until the next day, on October

1, 2000. The interim rule, which

requires States to assert that they are

already enforcing their laws on

September 30, did not anticipate this

occurrence. The agencies have

determined that a conforming law that

becomes effective on October 1 will

enable a State to avoid a transfer of

funds on that date. Accordingly, the

agencies have amended the regulations

to enable these States to certify that they

have enacted a repeat intoxicated driver

law that conforms to 23 U.S.C. 164 and

the agencies’ implementing regulations,

and that the law will become effective

and be enforced by October 1 of the

following fiscal year.

F. Transfer of Funds

As explained in the interim final rule,

section 164 provides that the Secretary

must transfer a portion of a State’s

Federal-aid highway 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.

The interim rule indicated that, in

accordance with the statute, the 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 drawn

evenly from these three sources. The

transferred funds may come from any

one or a combination of the

apportionments under sections

104(b)(1), (3) and (4), as long as the total

amount meets the statutory requirement.

One commenter noted that the interim

rule did not specify which State agency

has authority to decide from which

category funds should be transferred.

The agencies believe that, because the

decision concerning which of the three

highway apportionments should lose

funds solely affects State Department of

Transportation (DOT) programs, the

State DOT should have authority to

inform the FHWA of any changes in

distribution. The agencies have added

language to the final rule, in the section

on Transfer of Funds, indicating that on

October 1, the FHWA will make the

transfers based on a proportionate

amount, then the State’s Department of

Transportation will be given until

October 30 to notify the FHWA if they

would like to change the distribution

among sections 104(b)(1), (3) and (4).

The interim rule indicated that the

funds transferred to section 402 could

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. In addition, the interim

final rule indicated that States may elect

to use all or a portion of the transferred

funds for hazard elimination activities

under 23 U.S.C. 152.

NAGHSR, Michigan, Delaware and

NCSL noted that the interim final rule

did not specify which State agency has

the authority to determine how

transferred funds should be used.

NAGSHR stated that ‘‘it is unclear

whether these decisions are state

department of transportation decisions,

state highway safety office decisions, or

both.’’ Michigan suggested that ‘‘it

should be made clear that all affected

state agencies are to participate, and that

states’ decisions may be guided by the

traffic safety benefit returned by the

investment.’’

The agencies have determined that all

of the affected State agencies should

participate in deciding how transferred

funds should be directed. Accordingly,

the agencies have added language to the

section on Use of Transferred Funds

Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Rules and Regulations 59123

specifying that both the State DOT,

which will ‘‘lose’’ the funds, and the

State Highway Safety Office (SHSO),

which will ‘‘gain’’ the funds must

decide jointly.

The State DOT and SHSO officials

will provide written notification of their

funding decisions to the agencies,

within 60 days of the transfer,

identifying the amounts of apportioned

funds to be obligated to alcoholimpaired driving programs, hazard

elimination programs, and related

planning and administration costs

allowable under section 402. This

process will permit account entries to be

made. Joint decision making by the DOT

and SHSO is the same process required

by NHTSA and the FHWA for other

TEA 21 programs in which Congress

authorized flexible highway safety/

highway construction funding choices—

the section 157 Seat Belt Use Incentive

Grant Program, the section 163.08 BAC

Per Se Incentive Program and the

section 154 Open Container Transfer

Program.

IV. Regulatory Analyses and Notices

A. Executive Order 12778 (Civil Justice

Reform)

This final rule will not have any

preemptive or retroactive effect. The

enabling legislation does not establish a

procedure for judicial review of final

rules promulgated under its provisions.

There is no requirement that individuals

submit a petition for reconsideration or

pursue other administrative proceedings

before they may file suit in court.

B. 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 Pub. Law 105–206,

and thereby avoid the transfer of

Federal-aid highway construction 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.

C. Regulatory Flexibility Act

In compliance with the Regulatory

Flexibility Act (Pub. Law 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

regulations, 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 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.

D. 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.

E. 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.

F. The Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act

of 1995 (Pub. Law 104–4) requires

agencies to prepare a written assessment

of the costs, benefits and other effects of

final rules that include a Federal

mandate likely to result in the

expenditure by the State, local or tribal

governments, in the aggregate, or by the

private sector, of more than $100

million annually. In the interim final

rule, the agencies indicated that the

section 164 program did not meet the

definition of a Federal mandate, because

the resulting annual expenditures were

not expected to exceed $100 million and

because the States were not required to

enact and enforce a conforming repeat

intoxicated driver law.

NCSL asserted that the rule will result

in an unfunded mandate. It stated that

‘‘the total cost to the states to enforce

these repeat offender laws will exceed

one hundred million dollars in cost.’’

NCSL noted that the UMRA requires

agencies to prepare a written assessment

of the anticipated costs and benefits of

any unfunded Federal mandate and that

NHTSA failed to do so. NCSL asserted

also that NHTSA failed to consult with

State officials to determine the financial

and political ramifications of this

regulatory proposal.

The agencies have determined that

the rule will not result in an unfunded

mandate because the section 164

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. Moreover, the

agencies do not believe that the

resulting cost to States from

implementing conforming laws will be

over $100 million. Prior to the passage

of TEA 21, States already had enacted

and were enforcing repeat intoxicated

driver laws. Some of these States have

amended their laws to conform to the

new section 164 requirements, but such

changes will not result in expenditures

of over $100 million. For States that

have amended their repeat intoxicated

driver laws, the cost to enact such

amendments will be minimal. There

may be some costs to provide training

to law enforcement or other officials or

to educate the public about these

changes, but these costs are not likely to

be significant.

In the interim final rule, the agencies

recommended that States incorporate

into their enforcement efforts activities

designed to inform law enforcement

officers, prosecutors, members of the

judiciary and the public about their

repeat intoxicated driver laws. In

addition, the agencies advised States to

take steps to integrate their repeat

intoxicated driver enforcement efforts

into their enforcement of other impaired

driving laws. If States take these steps,

the cost to enforce such laws would

likely be absorbed into the State’s

overall law enforcement budget because

the States would not be required to

conduct separate enforcement efforts to

enforce their repeat intoxicated driver

laws.

Accordingly, the agencies have

determined that it is not necessary to

prepare a written assessment of the

costs and benefits, or other effects of the

rule.

G. Executive Order 13132 (Federalism)

This action has been analyzed in

accordance with the principles and

59124 Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Rules and Regulations

criteria contained in Executive Order

13132, 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 consideration of the foregoing, the

interim final rule published in the

Federal Register of October 19, 1998, 63

FR 55796, is adopted as final, with the

following changes:

PART 1275—REPEAT INTOXICATED

DRIVER LAWS

1. The authority citation for part 1275

continues to read as follows:

Authority: 23 U.S.C. 164; delegation of

authority at 49 CFR 1.48 and 1.50.

2. Section 1275.3 is amended by

revising paragraphs (c) and (k) to read

as follows:

§ 1275.3 Definitions.

* * * * *

(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, or an equivalent non-BAC

intoxicated driving offense.

* * * * *

(k) Repeat intoxicated driver means a

person who has been convicted of

driving while intoxicated or driving

under the influence of alcohol more

than once in any five-year period.

* * * * *

3. In § 1275.4, paragraph (b)(2) is

redesignated as paragraph (b)(3) and a

new paragraph (b)(2) is added to read as

follows:

§ 1275.4 Compliance criteria.

* * * * *

(b) * * *

(2) A State may provide limited

exceptions to the requirement to install

an ignition interlock system on each of

the offender’s motor vehicles, contained

in paragraph (a)(2)(iii) of this section, on

an individual basis, to avoid undue

financial hardship, provided the State

law requires that the offender may not

operate a motor vehicle without an

ignition interlock system.

* * * * *

4. Section 1275.5 is amended by

revising paragraph (b) to read as follows:

§ 1275.5 Certification requirements.

* * * * *

(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

§ 1275.4 of this part.

(1) If the State’s repeat intoxicated

driver law is currently in effect and is

being enforced, the certification shall be

worded as follows:

(Name of certifying official), (position

title), of the (State or Commonwealth) of

lll, do hereby certify that the (State or

Commonwealth) of lll, 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

pertinent State statutes, regulations, case law

or other binding legal requirements,

including definitions, as needed).

(2) If the State’s repeat intoxicated

driver law is not currently in effect, but

will become effective and be enforced

by October 1 of the following fiscal year,

the certification shall be worded as

follows:

(Name of certifying official), (position

title), of the (State or Commonwealth) of

lll, do hereby certify that the (State or

Commonwealth) of lll, has enacted a

repeat intoxicated driver law that conforms

to the requirements of 23 U.S.C. 164 and 23

CFR 1275.4, (citations to pertinent State

statutes, regulations, case law or other

binding legal requirements, including

definitions, as needed), and will become

effective and be enforced as of (effective date

of the law).

* * * * *

5. Section 1275.6 is amended by

adding paragraph (c) to read as follows:

§ 1275.6 Transfer of funds.

* * * * *

(c) On October 1, the transfers to

section 402 apportionments will be

made based on proportionate amounts

from each of the apportionments under

23 U.S.C. 104(b)(1),(b)(3) and (b)(4).

Then the States will be given until

October 30 to notify FHWA, through the

appropriate Division Administrator, if

they would like to change the

distribution among 23 U.S.C.

104(b)(1),(b)(3) and (b)(4).

6. Section 1275.7 is amended by

redesignating paragraphs (c) through (f)

as paragraphs (d) through (g), and by

adding a new paragraph (c) to read as

follows:

§ 1275.7 Use of transferred funds.

* * * * *

(c) The Governor’s Representative for

Highway Safety and the Secretary of the

State’s Department of Transportation for

each State shall jointly identify, in

writing to the appropriate NHTSA

Administrator and FHWA Division

Administrator, how the funds will be

programmed among alcohol-impaired

driving programs, hazard elimination

programs, and planning and

administration costs, no later than 60

days after the funds are transferred.

* * * * *

Issued on: September 28, 2000.

Kenneth R. Wykle,

Administrator, Federal Highway

Administration.

Dr. Sue Bailey,

Administrator, National Highway Traffic

Safety Administration.

[FR Doc. 00–25384 Filed 9–29–00; 3:34 pm]

BILLING CODE 4910–59–P

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 66

[USCG 2000–7466]

RIN 2115–AF98

Allowing Alternatives to Incandescent

Light in Private Aids to Navigation

AGENCY: Coast Guard, DOT.

ACTION: Direct final rule.

SUMMARY: The Coast Guard is removing

the requirement to use only tungstenincandescent lighting for private aids to

navigation. It will enable private

industry and owners of private aids to

navigation to take advantage of recent

changes in lighting technologyspecifically to use lanterns based on

light-emitting diodes (LEDs). The greater

flexibility will reduce the consumption

of power and simplify the maintenance

of private aids to navigation.

DATES: This direct final rule is effective

January 3, 2001, unless a written

adverse comment, or written notice of

intent to submit one, reaches the Docket

Management Facility on or before

December 4, 2000. If an adverse

comment, or notice of intent to submit

one, does reach the Facility on or before

then, the Coast Guard will withdraw

this rule and publish a timely notice of

withdrawal in the Federal Register.

ADDRESSES: You may mail your

comments or notices of intent to submit

them to the Docket Management Facility

[USCG 2000–7466], U.S. Department of

Transportation, room PL–401, 400

Seventh Street SW., Washington DC

20590–0001, or deliver them to room

PL–401 on the Plaza level of the Nassif

Building at the same address between

10 a.m. and 5 p.m., Monday through

Friday, except Federal holidays. The

telephone number is 202–366–9329.