[Federal Register Volume 60, Number 57 (Friday, March 24, 1995)]
[Rules and Regulations]
[Pages 15479-15481]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7264]



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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration

23 CFR Part 1313

[Docket No. 89-02; Notice 7]
RIN 2127-AD01


Incentive Grant Criteria for Drunk Driving Prevention Programs

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation.

ACTION: Interim final rule; reopening of comment period.

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SUMMARY: On August 9, 1994, (59 FR 40471) NHTSA published an interim 
final rule, amending the criterion in part 1313 for a supplemental 
grant for States that deem persons under age 21 who operate a motor 
vehicle with a BAC of 0.02 or greater to be driving while intoxicated. 
The interim final rule requested comments on the amendment. Today's 
notice reopens the comment period to provide States, national 
organizations and other interested persons an additional opportunity to 
comment on the amendment.

DATES: The comment period for NHTSA Docket No. 89-02; Notice 6 is 
reopened so that it closes May 23, 1995.

ADDRESSES: Written comments should refer to the docket number and the 
number of this notice and be submitted (preferably in ten copies) to: 
Docket Section, National Highway Traffic Safety Administration, Room 
5109, Nassif Building, 400 Seventh Street, SW., Washington, DC 20590. 
(Docket hours are from 9:30 a.m. to 4 p.m.)

FOR FURTHER INFORMATION CONTACT: Ms. Marlene Markison, Chief, Program 
Support Staff, NSC-10, National Highway Traffic Safety Administration, 
[[Page 15480]] 400 Seventh Street SW., Washington, DC 20590; telephone 
(202) 366-2121 or Dr. James Hedlund, Director, Office of Alcohol and 
State Programs, NTS-20, National Highway Traffic Safety Administration, 
400 Seventh Street, SW., Washington, DC 20590, telephone (202) 366-
2753.

SUPPLEMENTARY INFORMATION: The section 410 program, established in 
title 23, United States Code, section 410, as amended, is an incentive 
grant program under which States may qualify for basic and supplemental 
grant funds for adopting and implementing comprehensive drunk driving 
prevention programs that meet specified statutory criteria.
    To qualify for basic grant funds under section 410, a State must 
meet five out of six basic criteria. The criteria include an expedited 
driver's license suspension or revocation system, a per se law (at 0.10 
BAC in the first three fiscal years in which the State receives a grant 
and 0.08 BAC in subsequent years), a statewide program for stopping 
motor vehicles, a self-sustaining drunk driving prevention program, a 
minimum drinking age prevention program, and mandatory sentencing 
requirements.<SUP>1

    \1\To receive a basic grant, States that qualified for section 
410 funding in FY 1992 need only demonstrate compliance with four 
out of the five criteria in effect at that time, namely all the 
basic criteria listed above except for mandatory sentencing.
    If a State qualifies for a basic grant, it may also seek to qualify 
for funds under one or more of seven supplemental grants. The 
supplemental grants include a per se law for persons under age 21, a 
program making unlawful open containers and consumption of alcohol in 
motor vehicles, a suspension of registration and return of license 
plate program, a mandatory alcohol concentration testing program, a 
drugged driving prevention, a per se level of 0.08 (in the first three 
fiscal years in which the State receives a grant), and a video 
equipment program.

Per se Law for Persons Under Age 21 Supplemental Grant

    To qualify for the ``per se law for persons under age 21'' 
supplemental grant, Section 410 requires that the State must be 
``eligible for a basic grant in the fiscal year and (provide) that any 
person under age 21 with a blood alcohol concentration of 0.02 percent 
or greater when driving a motor vehicle shall be deemed to be driving 
while intoxicated.''
    In an interim final rule, dated June 30, 1992, NHTSA explained:

    In other words, States must establish a 0.02 per se law for 
persons under the age of 21, that makes driving with a BAC of 0.02 
percent or above itself an offense for such persons. (57 FR 29007)

    The interim final rule amended the regulation to provide that, to 
qualify for this supplemental grant, a State must ``provide that any 
person under age 21 with an alcohol concentration of 0.02 percent or 
greater when driving a motor vehicle shall be deemed to be driving 
while intoxicated for the purpose of administrative sanctions.''
    The agency interpreted this criterion to require that a State's law 
must provide that 0.02 BAC underage offenders must be treated the same 
as other (0.10) DUI offenders would be treated under the State's 
administrative license revocation (ALR) law, for the State to qualify 
for a ``per se law for persons under age 21'' supplemental grant.
    Further, the agency determined that States that did not have an ALR 
law at all or did not have an ALR law that qualifies under section 410 
need not provide for identical sanctions, but their laws must require a 
minimum 30-day license suspension as an administrative sanction for 
0.02 underage offenders, and the suspension must be mandatory.

Changes to the regulation

    Some States objected to the application of this portion of part 
1313. In response to these objections, NHTSA published an interim final 
rule on August 9, 1994 (59 FR 40470), amending part 1313 to provide 
that any State (whether it has an ALR law that conforms to section 410 
or not) need only provide for a 30-day suspension or revocation for 
persons under the age of 21 who operate a motor vehicle with a BAC of 
0.02 or greater. The 30-day suspension or revocation period must be a 
mandatory hard suspension or revocation (i.e., it may not be subject to 
hardship, conditional or provisional driving privileges).
    The interim final rule also amended the regulation to permit States 
to demonstrate compliance with this criterion as either ``Law'' or 
``Data'' States. The amended regulation defined a ``Law State'' as a 
State that has laws, regulations, or binding policy directives which, 
on their face, meet each element of the criterion. It defined a ``Data 
State'' as a State that has laws, regulations, or binding policy 
directives which, on their face, meet each element, except that they 
need not specifically provide for a 30-day hard suspension.
    Under the interim final rule, the regulation was amended to provide 
that, to demonstrate compliance, a ``Law State'' must submit only the 
law, regulation or binding policy directive itself governing its 0.02 
per se law for persons under age 21. It need not submit data. To 
demonstrate compliance, a ``Data State'' must submit its law, 
regulation, or binding policy directive governing its 0.02 per se law 
for persons under age 21. It must also submit data demonstrating that 
the average length of hard suspensions for offenders under the State's 
per se law for persons under age 21 meets or exceeds 30 days.

Comments Received

    NHTSA received four comments in response to the interim final rule. 
The commenters included the Michigan State Police Department, the 
Michigan Department of State, the National Association of Governors' 
Highway Safety Representatives (NAGHSR) and Advocates for Highway and 
Auto Safety (Advocates).
    Both comments from the State of Michigan objected to the imposition 
of legislative mandates in the section 410 program. The Michigan 
commenters favored the use of performance-based criteria instead. 
Michigan has raised this comment previously regarding other aspects of 
the section 410 program. However, section 410 does not permit the 
agency to disregard the statutory criteria and qualify a State based 
solely on performance.
    The Michigan Department of State Police and NAGHSR objected to the 
30-day hard suspension requirement. These commenters were concerned 
that, by defining this requirement, NHTSA was making the criterion 
stricter, thereby making it more difficult for States to qualify for 
section 410 funds. NAGHSR also objected to the interim final rule's 
provision that States ``must be a Law or Data State in order to show 
compliance.''
    NHTSA wishes to clarify that the changes that were made to the 
regulation in the interim final rule made it easier, not more 
difficult, for States to qualify for the 0.02 supplemental grant. Prior 
to the issuance of the interim rule, to qualify for this grant, States 
with ALR laws that qualified under section 410 were required to impose 
the same sanctions on 0.02 BAC underage offenders as were imposed on 
other (0.10 or, in some States, 0.08) DUI offenders. These sanctions 
include a 90-day suspension for first offenders (30 days of which must 
be hard for those who fail the test and all of which must be hard for 
those who refuse to submit to the test) and a one-year hard suspension 
for repeat offenders.
    Further, prior to the issuance of the interim rule, to demonstrate 
compliance for this grant, States could only qualify by submitting a 
conforming law (i.e., as [[Page 15481]] Law States). The interim rule 
provided additional flexibility by permitting States with laws that 
contain exemptions or some other provision that did not fully comply 
with the criterion, to demonstrate compliance through the use of data.
    As a result of the changes made in the interim final rule, three 
States qualified for funding under the 0.02 supplemental criterion that 
were not able to qualify previously. These States included California, 
Ohio and Virginia.
    Advocates did not oppose the amendment contained in the interim 
rule, but expressed some reservations. Advocates stated, ``We are not 
convinced * * * that a 30-day period of suspension is sufficient to 
make an effective impression on under age 21 drivers. * * * We believe 
that there is a strong argument for requiring a 90-day suspension for 
under age 21 supplemental grants even for states that meet the basic 
grant criteria without an ALR law.''
    NHTSA adopted the 30-day hard suspension criterion for both 
administrative license suspension laws (for first offenders who submit 
to and fail a chemical test) and for 0.02 laws for youth because that 
is the sanction that is recommended in the Uniform Vehicle Code 
concerning license suspension laws (see Sec. 6-215, Limited License) 
and because most States with demonstrated effective license suspension 
laws provide for a 30-day hard suspension period. NHTSA is not aware of 
any evidence that State zero tolerance laws which provide for a 90-day 
hard suspension are any more effective than State zero tolerance laws 
which provide for a 30-day hard suspension. Of course, States that 
provide for a hard suspension period of longer than 30 days could 
qualify for grant funding under this criterion.
    Both NAGHSR and Advocates also objected to NHTSA's use of an 
interim final rule without providing for prior notice and an 
opportunity for public comment. As explained in that document, the 
changes were published as an interim final rule, because the regulation 
relates to a grant program, to which the requirements of the 
Administrative Procedure Act (APA), 5 U.S.C. 553, are not applicable. 
Moreover, the agency explained that, even if the notice and comment 
provisions of the APA did apply, there is good cause for finding that 
providing notice and comment in connection with the rulemaking action 
was impracticable, unnecessary and contrary to the public interest, 
since it would have prevented States from qualifying for grant funds in 
fiscal year 1994.
    The agency's finding was based also on its view that the amendments 
made in the interim final rule rectified an inequity in the regulation, 
provided additional flexibility for the States and were consistent with 
other provisions in the section 410 implementing regulation, which was 
promulgated subject to notice and a full opportunity for the public to 
comment.
    The agency stated there would be little benefit gained by following 
the notice and comment procedures with regard to the revisions made by 
the interim final rule.
    NHTSA believes its assessment was correct, as demonstrated by the 
small number of comments received in response to the interim final 
rule. However, NHTSA wishes to ensure that the public has a full 
opportunity to be heard. Therefore, the agency has decided to reopen 
the comment period to provide the public with an additional opportunity 
to comment on the agency's action.
    The regulation, as amended by the interim final rule, remains in 
effect and binding. Following the close of the reopened comment period, 
NHTSA will publish a notice responding to any additional comments it 
receives and, if appropriate, will amend the provisions of this rule.

    Issued on: March 20, 1995.
Ricardo Martinez,
Administrator, National Highway Traffic Safety Administration.
[FR Doc. 95-7264 Filed 3-24-95; 8:45 am]
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