Amendment to Grant Criteria for Alcohol-Impaired Driving Prevention Programs, 29-46 [05-24623]

Agencies

• National Highway Traffic Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 71, Number 1 (Tuesday, January 3, 2006)]
[Proposed Rules]
[Pages 29-46]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-24623]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

23 CFR Part 1313

[Docket No. NHTSA-2005-23454]
RIN 2127-AJ73


Amendment to Grant Criteria for Alcohol-Impaired Driving 
Prevention Programs

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

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: This notice proposes to amend the regulations that implement 
the section 410 program, under which States can receive incentive 
grants for alcohol-impaired driving prevention programs. The proposed 
amendments implement changes that were made to the section 410 program 
by the Safe, Accountable, Flexible, Efficient Transportation Equity 
Act: A Legacy For Users (SAFETEA-LU).
    As a result of SAFETEA-LU, States are provided with two alternative 
means to qualify for a section 410 grant. Under the first alternative, 
States may qualify as a ``low fatality rate State'' if they have an 
alcohol-related fatality rate of 0.5 or

[[Page 30]]

less per 100 million vehicle miles traveled (VMT). Under the second 
alternative, States may qualify as a ``programmatic State'' if they 
demonstrate that they meet three of eight grant criteria for fiscal 
year 2006, four of eight grant criteria for fiscal year 2007, and five 
of eight grant criteria for fiscal years 2008 and 2009. Qualifying 
under both alternatives would not entitle the State to receive 
additional grant funds. SAFETEA-LU also provides for a separate grant 
to the ten States that are determined to have the highest rates of 
alcohol-related driving fatalities.
    This notice of proposed rulemaking proposes criteria States must 
meet and procedures they must follow to qualify for section 410 grants, 
beginning in fiscal year 2006.

DATES: Written comments may be submitted to this agency and must be 
received by February 2, 2006.

ADDRESSES: Comments should refer to the docket number and be submitted 
(preferably in two copies) to: Docket Management, Room PL-401, 400 
Seventh Street, SW., Washington, DC 20590. Alternatively, you may 
submit your comments electronically by logging on to the Docket 
Management System (DMS) Web site at https://dms.dot.gov. Click on ``Help 
& Information'' or ``Help/Info'' to view instructions for filing your 
comments electronically. Regardless of how you submit your comments, 
you should identify the Docket number of this document. You may call 
the docket at (202) 366-9324. Docket hours are 9:30 a.m. to 4 p.m., 
Monday through Friday.

FOR FURTHER INFORMATION CONTACT: For programmatic issues: Ms. Carmen 
Hayes, Highway Safety Specialist, Injury Control Operations & Resources 
(ICOR), NTI-200, or Jack Oates, Chief, Implementation Division, ICOR, 
NTI-200, National Highway Traffic Safety Administration, 400 Seventh 
Street, SW., Washington, DC 20590. Telephone: (202) 366-2421. For legal 
issues: Mr. Roland (R.T.) Baumann III, Attorney-Advisor, Legislation 
and General Law, Office of the Chief Counsel, NCC-113, National Highway 
Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 
20590. Telephone: (202) 366-1834.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Summary of Proposed Changes to the Regulation
III. The Section 410 Program under SAFETEA-LU
    A. Low Fatality Rate States
    B. Programmatic States
    i. High Visibility Impaired Driving Enforcement Program
    ii. Prosecution and Adjudication Outreach Program
    iii. BAC Testing Program
    iv. High Risk Drivers Program
    v. Alcohol Rehabilitation or DWI Court Program
    vi. Underage Drinking Prevention Program
    vii. Administrative License Suspension or Revocation System
    viii. Self-Sustaining Impaired Driving Prevention Program
    C. High Fatality Rate States
IV. Administrative Issues
    A. Qualification and Post-Approval Requirements
    B. Funding Requirements and Limitations
    C. Award Procedures
V. Comments
VI. Statutory Basis for this Action
VII. Regulatory Analyses and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act
    C. Executive Order 13132 (Federalism)
    D. Executive Order 12988 (Civil Justice Reform)
    E. Paperwork Reduction Act
    F. Unfunded Mandates Reform Act
    G. National Environmental Policy Act
    H. Executive Order 13175 (Consultation and Coordination with 
Indian Tribes)
    I. Regulatory Identifier Number (RIN)
    J. Privacy Act

I. Background

    The Alcohol Impaired Driving Countermeasures program was created by 
the Drunk Driving Prevention Act of 1988 and codified at 23 U.S.C. 410. 
As originally conceived, States could qualify for basic and 
supplemental grants under the section 410 program if they met certain 
criteria. To qualify for a basic grant, States had to provide for an 
expedited driver's license suspension or revocation system and a self-
sustaining impaired driving prevention program. To qualify for a 
supplemental grant, States had to be eligible for a basic grant and 
provide for a mandatory blood alcohol testing program, an underage 
drinking program, an open container and consumption program, or a 
suspension of registration and return of license plate program.
    During the decade and a half since the inception of the section 410 
program, it has been amended several times to change the grant criteria 
and grant award amounts. The most recent amendments prior to those 
leading to today's action arose out of the Transportation Equity Act 
for the 21st Century (TEA-21), Public Law 105-178. TEA-21 amended both 
the grant amounts and the criteria that States had to meet to qualify 
for both basic and supplemental grants under the section 410 program. 
Under TEA-21, States qualified for a ``programmatic'' basic grant by 
meeting five of seven of the following criteria: An administrative 
driver's license suspension or revocation system; an underage drinking 
prevention program; a statewide impaired-driving traffic enforcement 
program; a graduated driver's license system; a program to target 
drivers with a high blood alcohol concentration (BAC) level; a program 
to reduce drinking and driving among young adults (between the ages of 
21 and 34); and a BAC testing program. In addition, States could 
qualify for a ``performance'' basic grant by demonstrating that the 
percentage of fatally injured drivers in the State with a BAC of 0.10 
or more had decreased in each of the three previous calendar years and 
that the percentage of fatally injured drivers with a BAC of 0.10 or 
more in the State was lower than the average percentage for all States 
in the same calendar year. Supplemental grants were also available for 
States that received a programmatic and/or performance grant and met 
additional criteria.
    On August 10, 2005, the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) was enacted 
into law (Pub. L. 109-59). Section 2007 of SAFETEA-LU made new 
amendments to 23 U.S.C. 410. These amendments again modified the grant 
criteria and the award amounts and made a number of structural changes 
to streamline the program. Today's action proposes to amend the Section 
410 regulation to implement those changes.

II. Summary of Proposed Changes to the Regulation

    SAFETEA-LU discontinues one type of grant under the section 410 
program--the supplemental grant--retaining what is essentially 
equivalent to the basic grant under the old program. The proposed rule 
implements this change, detailing the programmatic criteria a State 
needs to meet under the new program.
    Under SAFETEA-LU, the number of programmatic criteria available for 
selection by a State seeking to qualify for a grant increases from 
seven to eight. At the same time, the number of these criteria that a 
State must satisfy to receive a grant decreases from five (under the 
old section 410 program) to three in the first fiscal year, four in the 
following fiscal year, and five in the remaining fiscal years of the 
program. The proposed rule implements these changes, which have the 
combined effect of increasing the States' qualification options for the 
duration of the program while reducing the States'

[[Page 31]]

compliance requirements for the first two years of the program.
    SAFETEA-LU directs that States with low alcohol-related fatality 
rates, based on the agency's Fatality Analysis Reporting System (FARS), 
be awarded grants without the need to satisfy any of these programmatic 
criteria. These States will qualify for funds without the 
administrative burden of submitting an application. Also, the ten 
States with the highest alcohol-related fatality rates, based on the 
FARS, will receive an additional grant with only minimal procedural 
requirements. The proposed rule streamlines the section 410 program by 
providing greatly simplified procedures for these high- and low-
fatality rate States to receive grant funds.
    Finally, the proposed rule codifies the SAFETEA-LU requirement that 
grant funds be distributed to the States based on the formula that has 
applied for years to State highway safety programs under 23 U.S.C. 402. 
This will ensure the full and equitable distribution of funds under the 
section 410 program.

III. The Section 410 Program Under SAFETEA-LU

    The SAFETEA-LU amendments, which take effect in FY 2006, retain the 
basic grant structure of the old section 410 Program but eliminate all 
supplemental grants. States may qualify for a grant in one of two ways. 
A State determined to be a ``low fatality rate State'' by virtue of 
having an alcohol-related fatality rate of 0.5 or less per 100 million 
VMT is eligible for a grant, as further described under section III.A. 
Under SAFETEA-LU, fatality rates are to be determined by using NHTSA's 
FARS data. States may also qualify by meeting certain programmatic 
requirements. A State may qualify as a ``programmatic State'' by 
demonstrating compliance with several specified criteria, the number 
varying by fiscal year, as further described under section III.B. Five 
programmatic criteria are continued from the TEA-21 basic grant 
criteria with minor modifications. SAFETEA-LU eliminates two 
programmatic criteria from the TEA-21 basic criteria--the graduated 
driver's licensing system and the young adult drinking and driving 
program. These criteria are replaced by two new programmatic criteria--
a prosecution and adjudication outreach program and an alcohol 
rehabilitation or DWI court program. An eighth programmatic criterion, 
the self-sustaining impaired driving prevention program, existed under 
the TEA-21 as a supplemental grant criterion and is continued under 
SAFETEA-LU as the equivalent of a programmatic basic grant criterion 
under the old section 410 program.
    Under SAFETEA-LU, grant funds are to be allocated to qualifying 
States on the basis of the apportionment formula in 23 U.S.C. 402(c)--
75 percent in the ratio which the population of each State bears to the 
total population of all qualifying States and 25 percent in the ratio 
which the public road mileage in each State bears to the total public 
road mileage of all qualifying States. The total amount of funding 
available each fiscal year for these grants will be known only after 
the agency identifies the States that are eligible to receive a new 
category of grants as ``high fatality rate States.''
    The SAFETEA-LU amendments include provisions for separate grants to 
be made to these ``high fatality rate States,'' as further described 
under section III.C. Each of the ten States with the highest alcohol-
related fatality rates, based on FARS data, will be eligible for a 
separate grant. The statute provides that up to 15 percent of the 
amount available to carry out the section 410 program shall be 
available for grants to these States. Funds will be allocated among the 
ten qualifying high fatality rate States based on the apportionment 
formula in 23 U.S.C. 402(c), with the limitation that no more than 30 
percent of the funds available for these grants may be awarded to any 
one State.
    The section 410 program derives its definition of ``State'' from 23 
U.S.C. 401, which includes any of the fifty States, the District of 
Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and 
the Commonwealth of the Northern Mariana Islands. Accordingly, each of 
these entities is eligible to participate in this program by submitting 
an application to the agency or by qualifying as a low or high fatality 
rate State, provided reportable FARS data exist for those 
jurisdictions.

A. Low Fatality Rate States (23 CFR 1313.5)

    Under TEA-21, States could qualify for one particular grant based 
on performance or another grant by meeting programmatic criteria. 
States that met both sets of requirements could receive two grants. 
SAFETEA-LU discontinues the two-grant approach and provides instead for 
two alternative means of receiving a single grant, based either on a 
performance or programmatic approach.
    Under SAFETEA-LU, the performance-based measure requires States to 
have an alcohol related fatality rate of 0.5 or less per 100 million 
VMT as of the date of the grant, as determined using the agency's most 
recent FARS data. As directed by SAFETEA-LU, the agency will calculate 
the alcohol-related fatality rate per 100 million VMT for each State 
using the most recent final FARS data available prior to the date of 
grant awards. Any State that is determined to have a fatality rate of 
0.5 or less per 100 million VMT will be considered eligible for a grant 
under section 410 as a low fatality rate State. States for which no 
reportable FARS data exist will not be evaluated for qualification as 
low fatality rate States.
    Prior to the start of the application period (on or about June 1 of 
that fiscal year), the agency will inform States that qualify for a 
grant based on low fatality rates. These States will not be required to 
submit an application demonstrating compliance with the programmatic 
requirements. They will, however, be required to submit information 
that identifies how the grant funds will be used in accordance with the 
requirements of SAFETEA-LU. If the agency experiences a delay in making 
fatality rate information available, all States should prepare and 
submit information demonstrating compliance with the required number of 
programmatic criteria. A State should not assume qualification for 
section 410 funding as a ``low fatality rate State'' until the 
information is made available by the agency.

B. Programmatic States (23 CFR 1313.6)

    Prior to the enactment of SAFETEA-LU, the section 410 grant 
criteria included the following: An administrative license suspension 
or revocation system; an underage drinking prevention program; a 
statewide traffic enforcement program; a graduated driver's license 
system; a program to target drivers with high BACs; a program to reduce 
drinking and driving among young adults; and a BAC testing program. 
Under SAFETEA-LU, the graduated driver's license system and the young 
adult drinking and driving program have been eliminated and two new 
criteria have been added--a prosecution and adjudication outreach 
program and an alcohol rehabilitation or DWI court program. In 
addition, the self-sustaining impaired driving prevention program 
(previously a supplemental grant criterion) has been retained as one of 
the criteria for a new grant. The remaining criteria from TEA-21 (some 
with modifications) continue to be features of the section 410 program 
under SAFETEA-LU.
    To qualify for a section 410 grant in FY 2006 based on programmatic 
criteria, SAFETEA-LU requires a State to demonstrate compliance with 
three of the following eight criteria: A high

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visibility impaired driving enforcement program; a prosecution and 
adjudication outreach program; a BAC testing program; a high-risk 
drivers program; an alcohol rehabilitation or DWI court program; an 
underage drinking prevention program; an administrative driver's 
license suspension or revocation system; and a self-sustaining impaired 
driving prevention program. States will be required to meet four of 
eight criteria to qualify in FY 2007 and five of eight criteria to 
qualify in each subsequent fiscal year. The details of these criteria 
are set forth below.
    The terms ``offender'' and ``offense'' are used in this proposal 
and refer to being detected and recorded as an impaired driver. A 
``first offense'' does not necessarily mean that the individual 
involved had never driven while impaired prior to that offense. 
Overall, the probability of being detected while driving is roughly 1 
to 2 percent. Thus the chances are small that one or more offenses 
truly reflect the only times that individual has driven while impaired.
i. High Visibility Impaired Driving Enforcement Program
    To qualify for a grant based on this criterion, SAFETEA-LU requires 
a State to demonstrate:

    A State program to conduct a series of high visibility, 
statewide law enforcement campaigns in which law enforcement 
personnel monitor for impaired driving, either through the use of 
sobriety check points or saturation patrols, on a nondiscriminatory, 
lawful basis for the purpose of determining whether the operators of 
the motor vehicles are driving while under the influence of 
alcohol--
    (A) If the State organizes the campaigns in cooperation with 
related periodic national campaigns organized by the National 
Highway Traffic Safety Administration, except that this subparagraph 
does not preclude a State from initiating sustained high visibility, 
Statewide law enforcement campaigns independently of the cooperative 
efforts; and
    (B) If, for each fiscal year, the State demonstrates to the 
Secretary that the State and the political subdivisions of the State 
that receive funds under this section have increased, in the 
aggregate, the total number of impaired driving law enforcement 
activities at high incident locations (or any other similar activity 
approved by the Secretary) initiated in such State during the 
preceding fiscal year by a factor that the Secretary determines 
meaningful for the State over the number of such activities 
initiated in such State during the preceding fiscal year.

    Agency's Proposal (23 CFR 1313.6(a)). Under this criterion, the 
agency proposes to require a State to: (1) Participate in a national 
high visibility impaired driving law enforcement campaign organized by 
NHTSA; (2) conduct a series of additional high visibility law 
enforcement campaigns within the State throughout the year; and (3) use 
sobriety checkpoints and/or saturation patrols at high-risk locations 
throughout the State, conducted in a highly visible manner and 
supported by publicity. A State could qualify by establishing a program 
that uses checkpoints, saturation patrols or both. The State would be 
required to participate in the National Impaired Driving Crackdown and 
conduct sustained highly visible enforcement throughout the remainder 
of the year.
    Under the proposed rule, the State would be required to show that 
each of the State's participating law enforcement agencies will conduct 
checkpoints and/or saturation patrols on at least four nights during 
the National impaired driving campaign organized by NHTSA and at least 
monthly during the remainder of the year. The State would be required 
to provide information on the coordination of these activities, 
including the State's efforts to publicize the law enforcement 
activities through the use of paid and/or earned media plans. States 
should publicize these activities before, during and after law 
enforcement operations. Publicity before the operation creates general 
deterrence and encourages ``would be'' impaired drivers to stay where 
they are or find a safe ride home. Publicity during the event (such as 
ride-alongs for members of the media) increases the credibility of 
advertisements and demonstrates to the public that law enforcement is, 
in fact, taking place in their community. Publicity after the event 
reinforces law enforcement's commitment by reporting on the number of 
individuals arrested and the consequences (such as loss of license, 
time in jail, court costs and attorney fees) that they experience.
    Basis for Proposal. Highly visible, widely publicized and 
frequently conducted impaired-driving traffic enforcement programs are 
effective in reducing alcohol-related fatalities. NHTSA research 
strongly supports the use of roadside sobriety checkpoints to reduce 
impaired driving deaths and injuries. Decreases in alcohol-related 
crashes have been reported consistently in States where checkpoints are 
employed. A study of a highly publicized Statewide sobriety checkpoint 
program (``Checkpoint Tennessee'') found a 20 percent reduction in 
impaired driving-related fatal crashes, when compared to five 
surrounding States with no intervention during the same period. 
Saturation patrols or similar enhanced impaired driving enforcement 
efforts, particularly when well-coordinated, conducted in a highly 
visible manner and accompanied by publicity, can also be effective, 
though research to date on the use of saturation patrols has shown they 
yield more modest results.
    A grant criterion for Statewide programs to conduct highly visible 
law enforcement activities has been a feature of the section 410 
program since 1991. Initially, only roadblock or checkpoint programs 
were considered acceptable under this criterion, but the criterion was 
expanded later to permit other intensive and highly publicized traffic 
enforcement techniques.
    In recent years, NHTSA has coordinated the National ``You Drink & 
Drive. You Lose'' crackdown campaign and promoted sustained highly 
visible law enforcement activities during other high-risk times of 
year. Thousands of law enforcement agencies have participated in the 
crackdown during each of the campaigns and Congress has consistently 
provided dedicated funding to support the law enforcement activities 
and the use of paid media. In 2002, NHTSA identified 13 Strategic 
Evaluation States (SES) with especially high numbers and/or rates of 
alcohol-related fatalities. These States received technical support and 
financial assistance to conduct highly visible impaired driving 
enforcement efforts during the crackdowns and on a sustained basis 
throughout the year. In 2003, for the first time since 1999, the nation 
experienced a decline in alcohol-related fatalities (511 fewer 
fatalities, a 2.9 percent reduction from the previous year). A decline 
occurred also in 2004 (411 fewer fatalities; a 2.4 percent reduction 
from the previous year). Much of this decline, particularly in 2003, 
occurred in the States participating in the SES program.
    To guide the SES, NHTSA outlined criteria to be followed to ensure 
that law enforcement efforts are coordinated, frequent, visible, and 
publicized through paid and earned media. These criteria have been used 
as guidance in developing the elements that States would follow under 
the proposed rule to qualify for a grant under the high visibility 
impaired driving enforcement program criterion.
    Demonstrating Compliance (23 CFR 1313.6(a)(3)). To demonstrate 
compliance in the first fiscal year that a State receives a grant based 
on this criterion, the State would submit a comprehensive plan for 
conducting its high visibility impaired driving law enforcement 
program. The plan would be required to contain various elements, 
including guidelines, policies or operation procedures, approximate

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dates and projected locations of planned law enforcement activities, a 
list of law enforcement agencies expected to participate, a paid media 
buy plan (if the State buys media) and a description of anticipated 
earned media activities designed to generate awareness before, during 
and after the operation.
    In subsequent fiscal years, the State would submit information 
evaluating the results of the prior year's plan and an updated plan for 
the upcoming year. SAFETEA-LU provides that States must increase the 
number of impaired driving law enforcement activities by a factor 
determined to be meaningful by the agency. The proposed rule would 
address this requirement by providing that the plan must demonstrate 
that a sufficient number of law enforcement agencies will participate 
in the effort during the first year a State qualifies for a grant under 
this criterion and increase participation in subsequent years. It would 
require that the plan demonstrate that State Police and local law 
enforcement agencies collectively serving at least 50 percent of the 
State's population or serving geographic areas that account for at 
least 50 percent of the State's alcohol-related fatalities will 
participate in the first year a State receives a grant based on this 
criterion, 55 percent in the second year, 60 percent in the third year, 
and 65 percent in the fourth year. Recent experience in the SES grant 
program has shown that most States are able to prepare a plan and 
participate at the 50 percent level in the first fiscal year, and then 
expand participation from that level in subsequent years. Additionally, 
after the first fiscal year, to maintain a State's qualification under 
this criterion, the State would be required to provide data on the 
total number of impaired driving law enforcement activities conducted 
in the State during the preceding year.
ii. Prosecution and Adjudication Outreach Program
    Several components of the criminal justice system are involved when 
an individual is arrested for impaired driving. SAFETEA-LU includes, 
for the first time in Section 410, a criterion that addresses the 
responsibilities of the individuals that prosecute and adjudicate 
impaired driving cases. The criterion is focused specifically on 
improving the prosecution and adjudication of DWI offenses.
    To qualify for a grant based on this criterion, SAFETEA-LU requires 
a State to demonstrate:

    A State prosecution and adjudication program under which--
    (A) The State works to reduce the use of diversion programs by 
educating and informing prosecutors and judges through various 
outreach methods about the benefits and merits of prosecuting and 
adjudicating defendants who repeatedly commit impaired driving 
offenses;
    (B) The courts in a majority of the judicial jurisdictions of 
the State are monitored on the courts' adjudication of cases of 
impaired driving offenses; or
    (C) Annual statewide outreach is provided for judges and 
prosecutors on innovative approaches to the prosecution and 
adjudication of cases of impaired driving offenses that have the 
potential for significantly improving the prosecution and 
adjudication of such cases.

    Agency's Proposal (23 CFR 1313.6(b)). Under this criterion, the 
agency proposes to require a State either to provide an outreach and 
education program available to court professionals that focuses on the 
negative aspects of using diversion programs, or provide an outreach 
and education program available to court professionals that details 
innovative approaches to the prosecution and adjudication of impaired 
driving offenses, or monitor State courts through the collection of 
information in a majority of jurisdictions (at least 50 percent) for 
adjudication outcomes of impaired driving offenses.
    To meet this criterion, a State would be required to submit 
evidence that it is currently performing one or more of these 
activities. States wishing to comply based on an outreach and education 
program are encouraged to provide traffic safety outreach and education 
to judges and prosecutors, using NHTSA recommended courses. The State 
would be required to conduct these education and outreach programs 
annually and use only materials that the agency has reviewed and 
approved for use. The proposed rule would allow a State to comply with 
the outreach and education program by demonstrating that the State 
employs a Traffic Safety Resource Prosecutor (TSRP) and a State 
Judicial Educator, because the agency believes similar benefits can be 
achieved through deployment of these professionals. States wishing to 
comply based on a court monitoring program would be required to collect 
data on offender sentencing.
    Basis for Proposal. States that institute outreach programs provide 
an effective means to educate prosecutors and judges about the 
shortcomings of diversion programs in reducing impaired driving 
recidivism and to provide information on more effective sentencing 
alternatives. Alternative sanctions for DWI offenses may include home 
detention with electronic monitoring, intensive probation supervision, 
daily reporting centers, and sanctions such as vehicle impoundment, 
license plate confiscation or ignition interlock installation. An 
increase in the number of court systems that have access to this 
information will result in less reliance on diversion programs and more 
on sentencing alternatives that are more effective in modifying 
impaired behavior.
    It is important for States to have a process in place to record the 
adjudications of cases involving impaired drivers. The collection of 
this information is vital to State interests to focus on localities 
that are not prosecuting and adjudicating defendants who commit repeat 
DWI offenses.
    The agency has previously identified as problematic the use of pre-
conviction diversion programs. Diversion programs, which are permitted 
in many States, are presented by prosecuting attorneys as an 
alternative to the traditional adjudication and sanction of DWI 
offenses and the court may accept or deny their use. Where these 
programs are accepted, the court may dismiss criminal charges against 
DWI offenders after completion of a treatment program. This restricts 
the type of information that would ordinarily be added to an offender's 
driving record and enables individuals with multiple offenses to be 
treated as first offenders. Diversion programs not only allow offenders 
to avoid sanctions but also increase the possibility that repeat 
offenders avoid identification.
    Prosecutors and judges should actively fulfill their respective 
functions in the prosecution and adjudication of impaired driving 
cases. Where State laws provide for diversion of impaired driving 
cases, judges and prosecutors should exercise oversight in its use. 
Oversight includes approving diversion only where permitted by law and 
insuring that diverted defendants' records of impaired driving are 
available for enhancement in the event of recidivism.
    Demonstrating Compliance (23 CFR 1313.6(b)(3)). To demonstrate 
compliance in the first fiscal year for an outreach and education 
program under the proposed rule, the State would be required to provide 
information that details the proposed content of the course covering 
either information on reducing the use of diversion programs or 
alternative approaches to sanctioning DWI offenders. A State would 
certify that its program is provided on an annual basis. Alternatively, 
the State would be allowed to submit information indicating its use of 
a TSRP and State Judicial Educator to provide NHTSA-

[[Page 34]]

approved educational programs to prosecutors and judges and a 
description of the courses presented and the level of judicial and 
prosecutor contact.
    To demonstrate compliance in the first fiscal year for a court-
monitoring program, the State would be required to provide information 
that includes the name and location of the courts covered (a majority 
of jurisdictions, at least 50 percent, must be included) and the kind 
of data collected. At a minimum, the data collected would be required 
to include a list of all original criminal or traffic-related charges 
against the defendant, the final charges brought by the prosecutor, and 
the disposition of the charges or sentence provided.
    To demonstrate compliance in a subsequent fiscal year for an 
outreach and education program, the State would be required to provide 
additional information if course content has been altered from the 
previous year. A compliant State would be required to continue to 
certify that the outreach is conducted annually. For States complying 
because of their use of a TSRP and State Judicial Educator, no 
information need be provided unless there has been a change in the 
status of these positions. A compliant State would be required to 
continue to certify the use of these positions.
    To demonstrate compliance in a subsequent fiscal year for a court-
monitoring program, the State would be required to submit a statement 
indicating it plans to retain a compliant court-monitoring program. 
Information on data collection elements and the courts involved in the 
program would not be required unless there is a change from the 
previous year.
iii. BAC Testing Program
    To qualify for a grant based on this criterion, SAFETEA-LU requires 
a State to demonstrate:

    An effective system for increasing from the previous year the 
rate of blood alcohol concentration testing of motor vehicle drivers 
involved in fatal crashes.

    Agency's Proposal (23 CFR 1313.6(c)). The agency is proposing to 
evaluate a State's performance based on a review of available FARS 
data. For each fiscal year, the agency would review the most recent 
final FARS data available for each State prior to the date of award and 
compare the BAC testing percentages of each State against the final 
FARS data for the same State in the previous year. A State could 
qualify based on data if the data shows that the State's percentage of 
BAC testing among drivers involved in fatal motor vehicle crashes has 
improved from the previous year.
    Basis for Proposal. Improving the rate of testing for blood alcohol 
concentration (BAC) of drivers involved in fatal crashes continues to 
be a critical component of any alcohol-impaired driving program. 
Increased BAC testing helps us to define the problem, identify 
offenders, and take steps to develop effective solutions to reduce the 
tragic consequences of impaired driving. According to FARS data, 
approximately 50 percent of all drivers involved in fatal crashes (both 
surviving and killed) in 2003 were tested for BAC and the results are 
known. NHTSA estimates that thousands of drivers each year are impaired 
by alcohol when involved in a fatal crash, but are not detected or 
charged because a BAC test was not administered or the results are not 
available. If more drivers were tested for BAC and the results made 
available, estimates of alcohol involvement in fatal crashes would be 
more accurate, more offenders would be prosecuted and the data 
collected would facilitate the development of better alcohol-impaired 
driving countermeasures.
    Mandatory BAC testing was a supplemental grant criterion under 
section 410 since the inception of the program. TEA-21 made it a 
criterion for a basic grant, allowing a State to qualify if, during the 
first two years, the State implemented an effective system for 
improving the rate of testing. To qualify in subsequent years, the 
State had to have a testing rate that was above the national average. 
SAFETEA-LU continues to include this criterion for a grant with an 
important modification. The focus of the requirement has shifted from a 
system that provides for a testing rate above the national average to 
one that demonstrates an improved rate of testing from year to year.
    Demonstrating Compliance (23 CFR 1313.6(c)(3)). To demonstrate a 
significant BAC testing increase, the Agency proposes that qualifying 
States show an increase from one year to the next of at least 5 
percentage points. States with testing rates above 50 percent would be 
required to show an increase of at least 5 percent in the testing of 
untested drivers. For example, if a State has a testing rate of 65 
percent, it would have to test at least 5 percent of the 35 percent of 
drivers that remained untested after fatal vehicle crashes, for an 
increase in testing of 1.75 percent of drivers involved in fatal 
crashes over the previous year in order to meet this criterion.
    For each fiscal year, to demonstrate compliance for a grant based 
on this criterion under the proposed rule, a State need only submit a 
statement indicating compliance with the BAC testing requirements of 
this section (i.e., a State whose testing rate is under 50 percent 
would be required to increase its testing rate by 5 percent each year 
and a State whose testing rate is 50 percent or greater would need to 
achieve an increase of 5 percent of untested drivers each year). Prior 
to the application period (on or about June 1 of that fiscal year), 
NHTSA would produce a list of States, available through its regional 
offices, that are determined to qualify under this criterion based on a 
review of FARS data.
iv. High Risk Drivers Program
    To qualify for a grant based on this criterion, SAFETEA-LU requires 
a State to demonstrate:

    A law that establishes stronger sanctions or additional 
penalties for individuals convicted of operating a motor vehicle 
while under the influence of alcohol whose blood alcohol 
concentration is 0.15 percent or more than for individuals convicted 
of the same offense but with a lower blood alcohol concentration. 
For purposes of this paragraph, ``additional penalties'' includes--
    (A) A 1-year suspension of a driver's license, but with the 
individual whose license is suspended becoming eligible after 45 
days of such suspension to obtain a provisional driver's license 
that would permit the individual to drive--
    (i) Only to and from the individual's place of employment or 
school; and
    (ii) Only in an automobile equipped with a certified alcohol 
ignition interlock device; and
    (B) A mandatory assessment by a certified substance abuse 
official of whether the individual has an alcohol abuse problem with 
possible referral to counseling if the official determines that such 
a referral is appropriate.

    Agency's Proposal (23 CFR 1313.6(d)). The agency is proposing to 
require that a compliant State law mandate specified additional 
penalties for individuals convicted of operating a motor vehicle with a 
0.15 BAC or higher. These additional penalties would include a one-year 
license suspension, except that States could permit the offender to 
drive after 45 days with a restricted license provided that a state-
certified ignition interlock (meeting NHTSA's ignition interlock 
performance specifications; see 57 FR 11772 for the most recent 
specifications) is installed in every vehicle owned and every vehicle 
operated by the offender. This restriction is meant to ensure that 
high-risk offenders cannot easily circumvent the driving restrictions. 
The restricted license could permit driving to places of employment or 
school. The penalties would also include a mandatory

[[Page 35]]

assessment by a certified substance abuse official. If it is determined 
after assessment that an offender must seek treatment, a State could 
also permit the offender to drive with a restricted license to a 
treatment facility.
    The requirements of this criterion should not be confused with 
those of 23 U.S.C. 164, the repeat intoxicated driver laws grant 
program. Under section 164, a State must provide a one-year hard 
license suspension to any individual convicted of repeat DWI offenses 
within a five-year period. There are no exceptions under that program 
that would allow a driver to operate a motor vehicle before one year 
has passed. SAFETEA-LU and the revised Section 410 requirements do not 
vary this requirement. If a State, in the interest of complying with 
this programmatic requirement under section 410, revises its law to 
allow high BAC offenders committing multiple offenses to receive a 
restricted license after 45 days, it will not remain compliant with 
section 164. In order to comply with both programs, the State must view 
the requirements under this criterion as applying to first offenses 
only.
    Basis for Proposal. NHTSA is aware of the dangers posed by drinking 
drivers with high blood alcohol concentrations (BACs). Data from the 
FARS indicate that 8,565 people were killed in motor vehicle crashes in 
2004 that involved at least one driver with a BAC of 0.15 or higher. 
NHTSA estimates that thirteen percent of all drivers involved in a 
fatal crash have a BAC of 0.15 or greater. Of all drivers involved in 
fatal crashes with a positive BAC, fifty-five percent have a BAC of 
0.15 or more.
    The rationale for high-BAC sanctioning systems is that DWI 
offenders with higher BACs pose a greater risk than offenders with 
lower BACs. There is evidence that DWI offenders with higher BACs are 
more likely than DWI offenders with lower BACs to be involved in a 
crash (Zador, Krawchuck, Voas, 2000; Compton et al., 2002). After 
adjusting for variables such as driver age and gender, the relative 
risk of a crash of any severity increases as BAC increases (Compton et 
al., 2002). Compared to drivers with zero BACs, the relative risk of a 
crash is 5 times higher for a BAC of .10, 22 times higher for a BAC of 
.15, 82 times higher for a BAC of .20, and 154 times higher for a BAC 
of .25 or higher.
    The objective of stronger sanctions targeting high BAC drivers is 
to reduce recidivism among this high-risk group of offenders by 
increasing the certainty and severity of punishment. Although 
historically some prosecutors routinely negotiated and some judges 
routinely applied stronger sanctions for high-BAC offenders within the 
framework of the general impaired driving statutes, many high BAC 
offenders did not receive enhanced penalties. In a high-BAC sanctioning 
system, the high-BAC threshold is established above the per se level 
for a standard offense, currently set by all States at .08 BAC.
    TEA-21 included a ``High BAC'' basic criterion for State programs 
that targeted high BAC drivers. Under TEA-21, States needed to 
demonstrate a system for imposing enhanced penalties on drivers who had 
been convicted of operating a motor vehicle while under the influence 
of alcohol and determined to have a high BAC. These enhanced penalties 
were required to be either more severe or more numerous than those 
applicable to persons who were convicted of operating a motor vehicle 
while under the influence of alcohol, but not determined to have a high 
BAC. Under TEA-21, NHTSA defined a high BAC threshold as being any 
level above the standard BAC level at which sanctions for non-
commercial drivers began to apply, provided sanctions began at or below 
.20 BAC. NHTSA did not specify particular minimum sanctions, but the 
sanctions could include longer terms of license suspension, increased 
fines, additional or extended sentences of confinement or vehicle 
sanctions along with mandatory assessment and treatment, as determined 
appropriate.
    Demonstrating Compliance (23 CFR 1313.6(d)(2)). To demonstrate 
compliance in the first fiscal year under the proposed rule, a State 
would be required to submit a copy of its law that provides for 
stronger sanctions or additional penalties along with mandatory 
assessment and treatment for individuals convicted of an impaired 
driving offense with a BAC of 0.15 or higher. The law would be required 
to specify the penalties that are to be imposed on drivers with a 0.15 
or higher BAC and, at a minimum, these penalties would include a one-
year license suspension and a mandatory assessment by a certified 
substance abuse official and referral to treatment as appropriate. The 
State law could permit an exception to the one-year driver's license 
suspension and permit a high-risk offender to drive to places of 
employment, school, or treatment after 45 days, if an ignition 
interlock device is installed on all vehicles owned and all vehicles 
operated by the offender.
    To demonstrate compliance in subsequent fiscal years under the 
proposed rule, the State need only submit a copy of any changes to the 
State's law. If there have been no changes in the State's law since the 
previous year's submission, the State need only submit a certification 
to that effect.
v. Alcohol Rehabilitation or DWI Court Program
    To qualify for a grant based on this criterion, SAFETEA-LU requires 
a State to demonstrate:

    A program for effective inpatient and outpatient alcohol 
rehabilitation based on mandatory assessment and appropriate 
treatment for repeat offenders or a program to refer impaired 
driving cases to courts that specialize in driving while impaired 
cases that emphasize the close supervision of high-risk offenders.

    Agency's Proposal (23 CFR 1313.6(e)). The agency proposes two 
alternative methods for States to meet this criterion: (1) A State 
would be required to demonstrate an effective inpatient and outpatient 
rehabilitation program based on State law that requires mandatory 
assessments by a certified substance abuse official and required 
referral to treatment as determined appropriate for repeat offenders 
(defined under this criterion as those individuals committing a second 
or subsequent DWI offense within five years); provide a system to track 
the treatment process of repeat offenders to ensure completion; and 
offer educational opportunities for court professionals regarding 
treatment approaches and sanctions; or (2) a State would be required to 
have a State sanctioned DWI court in operation that covers high-risk 
offenders (defined under this criterion as repeat offenders or 
individuals convicted of a DWI offense with a BAC higher than .15) and 
abide by the Ten Guiding Principles of DWI Courts (as of the 
publication of this proposal available at https://www.ndci.org/pdf/Guiding_Principles_of_DWI_Court.pdf), as established by the 
National Association of Drug Court Professionals, and generally follow 
the characteristics of a DWI Court as described in this section.
    Basis for Proposal. High-risk and repeat offenses are often 
symptoms of alcohol abuse or dependency. In order to confront the 
problem of regular alcohol misuse and impaired driving, section 410, 
for the first time, enables States to qualify for grant funding based 
on their use of certain treatment methods. Studies have shown that 
programs that employ intensive supervision have resulted in a 
significant reduction in DWI recidivism (Wiliszowski, Lacey, 1997). 
More specifically, studies of repeat offenders, a population involving 
approximately ten percent of alcohol-related deaths annually, indicated 
that regular contact

[[Page 36]]

with a concerned person, such as a judge, positively impacted drinking 
and driving decisions (Wiliszowski, Murphy, Jones, Lacey, 1996).
    The basis for an effective inpatient and outpatient alcohol 
rehabilitation program is an assessment by a certified substance abuse 
official that is mandated by State law. The law must also require 
judges to order repeat offenders to treatment if determined necessary 
by the assessment. The State must have a means to track the progress of 
repeat offenders ordered to treatment and to ensure that the goals of 
the assessment are met. Education for court professionals on alcohol 
abuse, issues surrounding treatment, basic treatment approaches, and 
treatment options that are available to defendants in a given area also 
are part of an effective system.
    DWI courts can also be used to combat the problem of recidivism by 
high-risk offenders. A DWI Court uses all criminal justice stakeholders 
(judges, prosecutors, defense attorneys, probation officers and others) 
along with alcohol and drug treatment professionals. This group of 
professionals comprises a ``DWI Court Team,'' and uses a cooperative 
approach to systematically change participant behavior. This approach 
includes identification and referral of participants early in the legal 
process to a full continuum of drug and alcohol treatment and other 
rehabilitative services. Compliance with treatment and other court-
mandated requirements is verified by frequent alcohol/drug testing, 
close supervision and interaction with the judge in a non-adversarial 
court review hearing. During these review hearings, the judge devises 
an appropriate response for participant compliance (or non-compliance) 
in an effort to further the team's goals to encourage pro-social sober 
behaviors that will prevent DWI recidivism.
    Demonstrating Compliance (23 CFR 1313.6(e)(3)). To demonstrate 
compliance in FY 2006 under the proposed rule, the State would provide 
a copy of its law that provides repeat offenders with mandatory 
assessments and treatment as determined appropriate. The State would 
also include a copy of its tracking system for monitoring treatment of 
repeat offenders and a list of the educational opportunities provided 
to court professionals concerning treatment. Alternatively, the State 
could provide evidence that an officially sanctioned DWI court is 
operating somewhere in the State.
    To demonstrate compliance in a subsequent year under the proposed 
rule, the State need only submit information that documents changes to 
either the law or the program previously determined compliant. If there 
are no changes, the State need only submit a certification stating that 
there have been no changes since the State's previous year's 
submission. To demonstrate compliance in FY 2007 under the DWI court 
provision, the State would provide evidence that two State sanctioned 
DWI courts are operating somewhere in the State. The State would 
provide evidence in FY 2008 that it has three State sanctioned DWI 
courts and in FY 2009 and subsequent fiscal years that it has four 
State sanctioned DWI courts.
vi. Underage Drinking Prevention Program
    An underage drinking (or minimum drinking age) prevention program 
has been a grant criterion under Section 410 since the program's 
inception, first as a supplemental grant criterion and later as a 
criterion for a basic grant. SAFETEA-LU continues to include this grant 
criterion in section 410, but in a slightly modified form.
    To qualify for a grant based on this criterion, SAFETEA-LU requires 
a State to demonstrate:

    An effective strategy, as determined by the Secretary, for 
preventing operators of motor vehicles under age 21 from obtaining 
alcoholic beverages and for preventing persons from making alcoholic 
beverages available to individuals under age 21. Such a strategy may 
include--
    (A) The issuance of tamper-resistant drivers' licenses to 
individuals under age 21 that are easily distinguishable in 
appearance from drivers' licenses issued to individuals age 21 or 
older; and
    (B) A program provided by a nonprofit organization for training 
point of sale personnel concerning, at a minimum--
    (i) The clinical effects of alcohol;
    (ii) Methods of preventing second party sales of alcohol;
    (iii) Recognizing signs of intoxication;
    (iv) Methods to prevent underage drinking; and
    (v) Federal, State, and local laws that are relevant to such 
personnel; and
    (C) Having a law in effect that creates a 0.02 percent blood 
alcohol content limit for drivers under 21 years old.

    Agency's Proposal (23 CFR 1313.6(f)). Under the agency's proposal, 
an effective strategy must not only prevent drivers under the age of 21 
from obtaining alcoholic beverages, it must also take steps that 
prevent persons of any age from making alcoholic beverages available to 
those who are under 21. The system must target underage drinkers and 
providers. SAFETEA-LU identifies three components that may be part of a 
State's effective strategy, and the agency proposes that States must 
meet each of them to qualify for a grant based on this criterion.
    First, States would be required to demonstrate that drivers' 
licenses issued to individuals under the age of 21 are both tamper-
resistant and distinguishable from those issued to individuals 21 years 
of age or older. The Appendix to the proposed regulation contains a 
list of security features that States may include on their driver's 
licenses to make them tamper-resistant. The agency urges States to 
incorporate as many of the security features as possible into their 
drivers' licenses to prevent underage drivers from altering existing 
licenses or obtaining or producing counterfeits. Drivers' licenses that 
comply with the requirements of the Real ID Act (Pub. L. 109-13) and 
its implementing regulations would satisfy the proposed requirements 
for tamper-resistance.
    Second, States would be required to demonstrate that they have a 
program, provided by a nonprofit or public organization that provides 
training for point-of-sale personnel and procedures in place to ensure 
program attendance. At a minimum, the training would need to cover the 
clinical effects of alcohol, methods of preventing second party sales 
of alcohol, recognizing signs of intoxication, methods to prevent 
underage drinking, and relevant laws that apply to such personnel.
    Third, States would be required to have in effect a zero tolerance 
law that makes it illegal for persons under the age of 21 to drive with 
any measurable amount of alcohol in their system, which must be set by 
the State to be no greater than 0.02 percent BAC. Under 23 U.S.C. 161, 
States without zero tolerance laws are subject to a penalty withholding 
of 10 percent of highway funds provided under 23 U.S.C. 104(b). 
Currently, all 50 States have enacted conforming zero tolerance laws. 
Puerto Rico and the territories do not have conforming laws.
    In addition to the elements identified by SAFETEA-LU, the proposed 
rule would include two elements based on research findings in a report 
of the National Research Council Institute of Medicine (IOM) of the 
National Academy of Science, Reducing Underage Drinking: A Collective 
Responsibility. The State would be required to plan to conduct a highly 
visible enforcement program that focuses on access to alcohol by 
persons under age 21. Enforcement strategies under the program could 
include compliance checks, party dispersal efforts, keg registration 
and law enforcement focused on zero tolerance laws. The focus of the 
enforcement

[[Page 37]]

program would be to create general deterrence among those under the age 
of 21 and those who provide alcohol to them. In addition, the State 
would be required to develop a communications strategy to support the 
enforcement effort. The strategy must be designed to reach citizens 
under the age of 21, their parents and other adults who can impact 
underage drinkers' access to alcohol. The strategy must publicize the 
enforcement program and enhance general deterrence by focusing on the 
State's laws, including the consequences and liability for those under 
21 who drink, or drink and drive, and adults who provide alcohol to 
underage drinkers. In addition, the strategy must include a peer 
education component. When developing a strategy, States may wish to 
consider use of evidence-based youth-oriented interventions and 
effective programs that have been determined to be promising model 
programs under the National Registry of Effective Programs and 
Practices (NREPP).
    All aspects of the effective system proposed under this criterion 
must be capable of implementation at a local level. The agency believes 
that this is an important concept to ensure the effectiveness of an 
underage drinking prevention program.
    Basis for Proposal. Drinking by drivers under 21 years of age 
continues to be a significant safety problem. Studies have shown that 
when States adopted a minimum drinking age of 21 years, they 
experienced an average 12 percent decrease in alcohol-related 
fatalities in the affected age group. Many States, however, do not 
enforce minimum drinking age laws as vigorously as possible.
    Over the last two years there has been increased national interest 
and emphasis on underage drinking, primarily as a result of the IOM 
report, Reducing Underage Drinking: A Collective Responsibility. The 
report highlights the problem of underage drinking as endemic, 
underscoring that the problem will not be reduced in the absence of 
significant new interventions. The IOM report identifies key strategies 
based on research undertaken at the National Institute on Alcohol Abuse 
and Alcoholism of the National Institutes of Health, and evidence-based 
programs determined to be effective such as those meeting the standards 
of the Substance Abuse and Mental Health Services Administration's 
NREPP.
    Demonstrating Compliance (23 CFR 1313.6(f)(3)). To demonstrate 
compliance in the first fiscal year that a State receives a grant based 
on this criterion under the proposed rule, the State would be required 
to submit sample drivers' licenses demonstrating that licenses issued 
to drivers under the age of 21 are easily distinguishable from licenses 
issued to older drivers and that they are tamper-resistant. The State 
would have to show that it provides point-of-sale personnel with 
training that covers the stated minimum requirements and includes 
procedures that ensure program attendance. A copy of the State's zero 
tolerance law that complies with 23 U.S.C. 161 would be provided. In 
addition, States would be required to submit a plan that provides for 
highly visible enforcement focused on alcohol access by those under 21. 
The plan would provide information on the types of enforcement 
strategies to be used. A communication strategy with a peer education 
component that supports the enforcement plan also would be required to 
be provided.
    To demonstrate compliance in subsequent fiscal years, States need 
only submit information documenting any changes to the State's drivers' 
licenses or any other part of the State's underage driving prevention 
program, or a certification stating there have been no changes since 
the State's previous year's submission.
vii. Administrative License Suspension or Revocation System
    To qualify for a grant based on this criterion, SAFETEA-LU requires 
a State to demonstrate:

    An administrative driver's license suspension or revocation 
system for individuals who operate motor vehicles while under the 
influence of alcohol that requires that--
    (A) In the case of an individual who, in any 5-year period 
beginning after the date of enactment of the Transportation Equity 
Act for the 21st Century, is determined on the basis of a chemical 
test to have been operating a motor vehicle while under the 
influence of alcohol or is determined to have refused to submit to 
such a test as proposed by a law enforcement officer, the State 
agency responsible for administering drivers' licenses, upon receipt 
of the report of the law enforcement officer--
    (i) Suspend the driver's license of such individual for a period 
of not less than 90 days if such individual is a first offender in 
such 5-year period; except that under such suspension an individual 
may operate a motor vehicle, after the 15-day period beginning on 
the date of the suspension, to and from employment, school, or an 
alcohol treatment program if an ignition interlock device is 
installed on each of the motor vehicles owned or operated, or both, 
by the individual; and
    (ii) Suspend the driver's license of such individual for a 
period of not less than 1 year, or revoke such license, if such 
individual is a repeat offender in such 5-year period; except that 
such individual [may be allowed] to operate a motor vehicle, after 
the 45-day period beginning on the date of the suspension or 
revocation, to and from employment, school, or an alcohol treatment 
program if an ignition interlock device is installed on each of the 
motor vehicles owned or operated, or both, by the individual; and
    (B) The suspension and revocation referred to under clause (i) 
take effect not later than 30 days after the date on which the 
individual refused to submit to a chemical test or received notice 
of having been determined to be driving under the influence of 
alcohol, in accordance with the procedures of the State.

    Agency's Proposal (23 CFR 1313.6(g)). To satisfy this criterion 
under the proposed rule, a State would be required to provide that 
first offenders must be subject to a 90-day suspension, that repeat 
offenders must be subject to a one-year suspension or revocation, and 
that suspensions or revocations must take effect within 30 days after 
the offender refuses to submit to a chemical test or receives notice of 
having failed the test. The proposed rule would not require, but would 
permit, a State to provide limited driving privileges after not less 
than 15 days for first offenders and not less than 45 days for repeat 
offenders, if an ignition interlock device is installed on all vehicles 
owned and all vehicles operated by the offender and the offender's 
driving privileges are restricted to places of employment, school or 
treatment.
    The proposed rule would continue to provide that States may 
demonstrate compliance with this criterion as either ``Law States'' or 
``Data States.'' A ``Law State'' would be a State that has a law, 
regulation or binding policy directive implementing or interpreting the 
law or regulation that meets each element of the criterion. A ``Data 
State'' would be a State that has a law, regulation or binding policy 
directive that provides for an administrative license suspension or 
revocation system, but does not meet each element of the criterion. For 
example, the law may not specifically provide that suspensions must 
take effect within 30 days. The data provided by the State, however, 
might demonstrate that the average time to suspend an offender's 
license is 30 days or less.
    Basis for Proposal. Studies show that when States adopt an 
administrative license suspension or revocation law, they experience a 
6 to 9 percent reduction in alcohol-related fatalities.
    Prior to the enactment of SAFETEA-LU, this criterion provided 
longer hard license suspension periods, during which all driving 
privileges were to be suspended, requiring at least a 30-day

[[Page 38]]

suspension of all driving privileges for a first offender who fails a 
chemical test, at least a 90-day suspension of all driving privileges 
for a first offender who refuses to submit to a test and a one-year 
suspension of all driving privileges for repeat offenders. SAFETEA-LU 
provides that first offenders (whether they fail or refuse to submit to 
a test) may operate a vehicle under limited circumstances after a 15-
day period if their vehicles are equipped with ignition interlock 
devices and repeat offenders may do the same after a 45-day period. 
Research has demonstrated that the installation of ignition interlocks 
can lead to reductions in drinking and driving recidivism.
    Demonstrating Compliance (23 CFR 1313.6(g)(3)-(4)). To demonstrate 
compliance in the first fiscal year a State qualifies for a grant based 
on this criterion under the proposed rule, a Law State need only submit 
a copy of its conforming law, regulation or binding policy directive. A 
Data State would submit its law, regulation or binding policy 
directive, and data demonstrating compliance with any element not 
specifically provided for in the State's law.
    To demonstrate compliance with this criterion in subsequent fiscal 
years under the proposed rule, a Law State need only submit a copy of 
any changes to the State's law, regulation or binding policy directive. 
If there are no changes in the State's law, regulation or binding 
policy directive since the previous year's submission, the State need 
only submit a certification to that effect. In subsequent fiscal years, 
Data States would be required to submit the same information as Law 
States. They would also provide updated data demonstrating compliance 
with any element not specifically provided for in the State's law.
    Although States would not be required to show that law enforcement 
officers take possession of driver licenses at the time of the stop, 
the agency encourages States nonetheless to continue this practice. 
NHTSA has found that the practice of immediately seizing a driver's 
license is a powerful deterrent.
viii. Self-Sustaining Impaired Driving Prevention Program
    To quali