Amendment To Grant Criteria for Alcohol-Impaired Driving Prevention Programs, 20555-20573 [06-3781]

Agencies

• National Highway Traffic Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 71, Number 77 (Friday, April 21, 2006)]
[Rules and Regulations]
[Pages 20555-20573]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-3781]


=======================================================================
-----------------------------------------------------------------------

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: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends the regulation that implements 23 
U.S.C. 410, under which States can receive incentive grants for 
alcohol-impaired driving prevention programs. The final rule implements 
changes that were made to the Section 410 program by the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
For Users (SAFETEA-LU).
    SAFETEA-LU provides States 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 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 does 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 final rule establishes the criteria States must meet and the 
procedures they must follow to qualify for Section 410 grants, 
beginning in FY 2006.

DATES: This final rule becomes effective on June 20, 2006.

FOR FURTHER INFORMATION CONTACT: For programmatic issues: Ms. Carmen 
Hayes, Highway Safety Specialist, Injury Control Operations & Resources 
(ICOR), NTI-200, National Highway Traffic Safety Administration, 400 
Seventh Street, SW., Washington, DC 20590. Telephone: (202) 366-2121. 
For legal issues: Mr. Roland (R.T.) Baumann III, Attorney-Advisor, 
Legislation and General Law Division, 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. Section 410 Statutory Requirements
III. Section 410 Administrative Requirements
IV. Notice of Proposed Rulemaking
V. Comments
    A. In General
    B. Comments Regarding Programmatic Criteria
    1. High Visibility Impaired Driving Enforcement Program
    2. Prosecution and Adjudication Outreach Program
    3. BAC Testing Program
    4. High Risk Drivers Program
    5. Alcohol Rehabilitation or DWI Court Program
    6. Underage Drinking Prevention Program
    7. Administrative License Suspension or Revocation System
    8. Self-Sustaining Impaired Driving Prevention Program
    C. Comments Regarding Low and High Fatality Rate States
    D. Comments Regarding Administrative Issues
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. Plain Language

[[Page 20556]]

    J. Regulatory Identifier Number (RIN)
    K. 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 this action arose out of the Transportation Equity Act for 
the 21st Century (TEA-21), Pub. L. 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 the seven 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 three calendar years. 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 
(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.

II. Section 410 Statutory Requirements

    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. SAFETEA-LU prescribes that fatality rates 
are to be determined by using data from NHTSA's Fatality Analysis 
Reporting System (FARS). States may also qualify by meeting certain 
programmatic requirements. A State may qualify as a ``programmatic 
State'' by demonstrating compliance with several specified criteria. A 
State must demonstrate compliance with three of eight alcohol-impaired 
driving prevention programmatic criteria in FY 2006, four of eight in 
FY 2007, and five of eight in FY 2008 and FY 2009. These criteria 
include the following: a high 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. Five of these 
programmatic criteria are continued from the TEA-21 basic grant 
criteria with minor modifications. SAFETEA-LU eliminated 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 were replaced by a prosecution and adjudication 
outreach program and the alcohol rehabilitation or DWI court programs--
two new programmatic criteria. The eighth programmatic criterion, the 
self-sustaining impaired driving prevention program, existed under 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.
    The SAFETEA-LU amendments include provisions for separate grants to 
be made to ``high fatality rate States.'' Each of the ten States with 
the highest alcohol-related fatality rates, based on FARS data, are 
eligible for a separate grant. High fatality rate States may also 
qualify for funding as programmatic States.

III. Section 410 Administrative Requirements

    Under SAFETEA-LU, a number of administrative requirements apply to 
the Section 410 program. States that qualify for grants under Section 
410 are to receive funds in accordance with the apportionment formula 
in Section 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 funds available each fiscal year for separate 
grants to the ten States with the highest fatality rates are 
statutorily limited to not more than 15 percent of the funding for the 
entire Section 410 program for that fiscal year, with no single State 
receiving more than 30 percent of that amount. These funds, too, are to 
be distributed in accordance with the apportionment formula in 23 
U.S.C. 402(c).
    SAFETEA-LU provides that States may use grant funds for any of the 
eight identified alcohol-impaired driving prevention programs or to 
defray the following specified costs:

    (1) Labor costs, management costs, and equipment procurement 
costs for the high visibility, Statewide law enforcement campaigns 
under subsection (c)(1).
    (2) The costs of the training of law enforcement personnel and 
the procurement of technology and equipment, including video 
equipment and passive alcohol sensors, to counter directly impaired 
operation of motor vehicles.
    (3) The costs of public awareness, advertising, and educational 
campaigns that publicize use of sobriety check points or increased 
law enforcement efforts to counter impaired operation of motor 
vehicles.
    (4) The costs of public awareness, advertising, and educational 
campaigns that target impaired operation of motor vehicles by 
persons under 34 years of age.
    (5) The costs of the development and implementation of a State 
impaired operator information system.
    (6) The costs of operating programs that result in vehicle 
forfeiture or impoundment or license plate impoundment.

    States are required to match the grant funds they receive. The 
Federal share may not exceed 75 percent of the cost of the State's 
activities under the Section 410 program in the first and second fiscal 
years and 50 percent in the third and fourth fiscal years. States must 
also maintain aggregate expenditures from all other sources for their 
alcohol-

[[Page 20557]]

impaired driving prevention programs at or above the average level of 
such expenditures in fiscal years 2004 and 2005.

IV. Notice of Proposed Rulemaking

    The agency published a notice of proposed rulemaking (NPRM) on 
January 3, 2006 (71 FR 29) to implement the new Section 410 program 
requirements under SAFETEA-LU. The proposal set forth the requirements 
for grant awards to States that satisfy the statutorily-specified 
minimum number of programmatic criteria, depending on the grant year. 
The proposal also set forth the requirements for grant awards to States 
that qualify as high or low fatality rate States. The proposal 
specified an annual application deadline of August 1 and required 
States to certify that they would conduct activities and use funds in 
accordance with the requirements of the Section 410 program and other 
applicable laws.
    Consistent with the procedures in other highway safety grant 
programs administered by NHTSA, the proposal provided that, within 30 
days after notification of award, States must submit an electronic HS 
Form 217 obligating the grant funds to alcohol-impaired driving 
prevention programs. The proposal also required States to identify 
their proposed use of grant funds in the Highway Safety Plans prepared 
under the Section 402 Program and to detail program accomplishments in 
the Annual Report submitted under that program. The proposal explained 
that these documenting requirements must continue each fiscal year 
until all grant funds have been expended.
    To satisfy the statutory requirement that a State match grant 
funds, the agency proposed to accept a ``soft'' match in the 
administration of the Section 410 program, as it has in other grant 
programs (i.e., States could count other highway safety expenditures in 
the State, irrespective of whether those expenditures were made for 
this program). In addition, the agency proposed that States could use 
up to 10 percent of the total funds received under 23 U.S.C. 410 for 
planning and administration (P&A) costs. As with the Section 402 
program, the proposal limited Federal participation in P&A activities 
to not more than 50 percent of the total cost of such activities.

V. Comments

    The agency received submissions from twenty commenters in response 
to the NPRM--five from State agencies, thirteen from professional 
organizations, and two from ignition interlock manufacturers. The State 
comments were submitted by the Office of Traffic Safety of the 
Minnesota Department of Public Safety (Minnesota); the Bureau of 
Transportation Safety of the Wisconsin Department of Transportation, 
Division of State Patrol (Wisconsin); the West Virginia Highway Safety 
Program of the West Virginia Department of Transportation, Division of 
Motor Vehicles (West Virginia); and the Division of Traffic Safety of 
the Illinois Department of Transportation (Illinois). The 
Transportation Departments of the States of Idaho, Montana, North 
Dakota, South Dakota, and Wyoming submitted joint comments through 
their counsel (the Joint State Commenters). The professional 
organization comments were submitted by the National Traffic Law Center 
(NTLC); the Governor's Highway Safety Association (GHSA); Advocates for 
Highway and Auto Safety (Advocates); Mothers Against Drunk Driving 
(MADD); the Conference of State Court Administrators (COSCA); the Beer 
Institute; the Hospitality Resource Panel; the Maryland State Licensed 
Beverage Association; the New Jersey Licensed Beverage Association, 
Inc.; Techniques of Alcohol Management/Nevada; the Michigan Licensed 
Beverage Association; the Alaska Cabaret, Hotel, Restaurant and 
Retailer's Association; and Techniques of Alcohol Management. The last 
eight listed organizations submitted a substantially similar comment, 
and are referred to collectively below as the TAM Commenters when 
addressing that comment. The ignition interlock manufacturer comments 
were submitted by National Interlock Systems, Inc. and LifeSafer 
Interlock, Inc.

A. In General

    The agency received a variety of comments in response to the NPRM. 
Illinois agreed with the proposal and thought that it provided ``an 
appropriate outline'' for deterring impaired driving in the State. 
Advocates stated that the agency ``made reasonable decisions as to the 
requirements that must be met by `programmatic States.' '' MADD 
expressed general agreement with the regulation and each of the 
programmatic criteria.
    In contrast, GHSA stated that ``the regulations proposed * * * go 
beyond the statutory language,'' and expressed concern that ``the 
requirements will make it difficult for states to qualify for 410 
grants, particularly in the last two years of the grant program.'' The 
Joint State Commenters echoed this concern, asserting that ``[b]ecause 
of regulatory add-ons, it will become more difficult for States to 
qualify for Section 410 funds on a programmatic basis. * * *'' The Beer 
Institute asked the agency to reconsider inclusion of additional 
regulatory requirements in its proposal, but did not identify any 
specific requirements. Wisconsin and GHSA viewed the proposal as overly 
restrictive and believed its operation would not provide enough 
flexibility to deal with problems inherent to a particular State.
    These and other more specific comments related to the requirements 
that States must meet to qualify for grants are addressed below, under 
the appropriate heading. The agency received at least one comment 
concerning each of the eight criteria States must meet to qualify as a 
programmatic State and the requirements that States must meet to 
qualify for a grant as a low or high fatality rate State.

B. Comments Regarding Programmatic Criteria

1. High Visibility Impaired Driving Enforcement Program
    To qualify for a grant based on this criterion, SAFETEA-LU requires 
a State to have:

    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.

    The NPRM proposed that a State would be required to participate in 
the national impaired driving campaign organized by NHTSA, conduct a 
series of additional high visibility law enforcement campaigns within 
the State on a monthly basis throughout the year, and use sobriety 
checkpoints and/or saturation patrols during these efforts.

[[Page 20558]]

To demonstrate compliance under the NPRM, the State would be required 
to submit a comprehensive plan that included guidelines, policies or 
procedures governing the Statewide enforcement program; dates and 
locations of planned law enforcement activities; a list of law 
enforcement agencies expected to participate (which must include 
agencies serving at least 50 percent of the State's population or 
serving geographic subdivisions that account for at least 50 percent of 
the State's alcohol-related fatalities in the first year, increasing 
thereafter); and a communications plan that includes a paid media buy 
plan, if the State buys media, and a description of anticipated earned 
media activities before, during and after planned enforcement efforts.
    GHSA stated that small, rural States would have a difficult time 
meeting the requirement that participating law enforcement agencies 
cover either 50 percent of the population or a geographic area that 
accounts for 50 percent of the State's alcohol-related fatalities. GHSA 
also expressed concern that States might have to ``enlist the support 
of every law enforcement agency in the geographic area'' and compliance 
would be jeopardized if even one law enforcement agency declined to 
participate.
    The proposed 50 percent population-based or fatality-based options 
for the first year of the new program mirror the requirement that 
existed in the regulation implementing the predecessor Section 410 
program authorized under TEA-21, based on similar statutory language. 
(TEA-21 and SAFETEA-LU both require States to conduct a ``Statewide'' 
law enforcement effort.) All 34 States that received Section 410 
programmatic grants in FY 2005 under the predecessor program, including 
several small, rural States, met this requirement. The agency believes 
that the 50 percent level is a generous interpretation of the statutory 
requirement for Statewide coverage and an achievable measure by all 
States.
    Moreover, the proposal does not require States to include as 
participating agencies all law enforcement agencies operating within a 
certain geographic area for that area to count toward meeting the 50 
percent requirement. The agency is mindful that overlapping 
jurisdictions exist at county and local levels. The State is required 
to include only a single law enforcement agency operating within a 
particular jurisdiction for that area (as determined by population or 
geography) to count toward the 50 percent requirement. The agency has 
revised the rule to include a definition of law enforcement agency. A 
law enforcement agency refers to an agency that is identified by the 
State and included in an enforcement plan for purposes of meeting the 
coverage requirements of the State during high visibility enforcement 
campaigns. While this clarifies the minimum requirement, we encourage 
States to include as many agencies as possible in their Statewide 
enforcement plans.
    Minnesota questioned the agency's requirement that participating 
law enforcement agencies conduct checkpoints and saturation patrols on 
at least four nights during the National Campaign. Minnesota viewed the 
requirement as ``extremely costly'' and believed it would discourage 
smaller law enforcement organizations from voluntary participation in 
the program.
    The impact of the High Visibility Impaired Driving Program 
Criterion on traffic safety is dependent on increasing high visibility 
enforcement efforts in the State. While such efforts are not without 
cost, the amount of funds available under the Section 410 program has 
tripled under the current statute, and these funds may be used to cover 
the costs of Statewide enforcement. Under these circumstances, the 
agency does not believe that a requirement for participation in 
enforcement campaigns on only four nights during the National Impaired 
Driving Crackdown that occurs once a year presents an unreasonable 
burden.
    Moreover, within the proposal's definition of sobriety checkpoint 
and high saturation patrol, there is tremendous flexibility to 
accommodate mobile or ``flexible'' checkpoints and task force 
arrangements that are multi-jurisdictional. For smaller law enforcement 
agencies that may not be able to commit resources to four activities 
during the national campaign, States may use partnerships or task force 
arrangements between law enforcement agencies. Qualifying participation 
by a smaller law enforcement agency under a task force arrangement 
would be satisfied by involvement of one officer--a manageable level of 
effort. For these reasons, we decline to change the requirement for 
four-night participation.
    The Joint State Commenters took issue with the proposed requirement 
that States conduct additional monthly activities outside the period of 
the national campaign. In their view, the statute precludes such a 
requirement and leaves this decision to the discretion of the States.
    The agency's proposal that States participate in monthly 
enforcement activities as well as the national campaign derives from 
the statutory language directing a State to conduct ``a series of'' 
high visibility, Statewide law enforcement efforts. The agency believes 
that limiting State enforcement activities to the period of a single 
national campaign under this criterion does not meet the statutory 
requirement or intent for a ``series'' of efforts. Evidence has shown 
that sustained enforcement programs have produced the largest declines 
in alcohol-related crashes (e.g., Checkpoint Tennessee)--single short-
term enforcement programs targeting impaired driving have not shown 
similar effects.
    The agency recognizes, however, that some largely rural States may 
have difficulty conducting monthly law enforcement activities aimed at 
impaired drivers. In these States, it may be impracticable because of 
weather conditions and rural expanses for all participating law 
enforcement agencies to conduct an activity every month, placing them 
at a disadvantage when compared to other States. These concerns have 
been raised in the past, in response to experience under the 
predecessor Section 410 program. To address these concerns and increase 
the parity between States in varying geographic regions, we have 
revised the rule to require that a State provide at least quarterly law 
enforcement activities during the year. Under the revision, 
participating law enforcement agencies will have to conduct activities 
on four nights during the national campaign and conduct four additional 
efforts, one during each quarter of the year.
    Under SAFETEA-LU, a State's continued compliance with the criterion 
requires that it increase the amount of impaired driving law 
enforcement activity over the previous year. The agency's proposal 
requires that a State submit a plan in each successive year of the 
program that increases the percent of the population reached by five 
percent. (The proposal inadvertently did not include language allowing 
the alternative option of an increase in the geographic area covered. 
We have amended the rule to provide that option, for consistency and 
conformity with the requirements at the 50 percent levels.) The 
increase is measured from the initial requirement that a State must use 
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. This 
approach mirrors the approach taken under the Strategic Evaluation 
States program.
    The Joint State Commenters took exception to this approach, 
claiming

[[Page 20559]]

that it ignored meaningful increases that occurred below 50 percent, 
such as an increase in law enforcement coverage from 20 percent to 40 
percent. The Joint State Commenters urged the agency to accept such 
increases and also to consider meaningful any increase in the total 
number of law enforcement activities conducted in a State.
    The comment ignores the threshold statutory requirement that the 
State conduct a ``statewide'' program. Law enforcement activity that 
covers only 20 percent or even 40 percent of the State does not satisfy 
this baseline requirement. The agency believes that a 50 percent floor 
is already generous in this regard, in view of the statutory language, 
and has made no change to the rule.
    The agency does not believe that an increase in the total number of 
law enforcement activities conducted is a practicable measure under 
this criterion. Such an approach relies on State impaired driving law 
enforcement data, and States are currently experiencing difficulty in 
obtaining accurate data. Several comments highlighted this problem. 
Minnesota indicated that ``a State does not fund all impaired driving 
enforcement activity conducted in the state and can't require a law 
enforcement agency to report data on an activity that is funded 
locally.'' According to Minnesota, ``no state would be able to certify 
that the number they provided was accurate.'' GHSA stated that it is 
``extremely difficult for some states to provide such data for agencies 
that do not receive grants.''
    For these reasons, the agency declines to adopt the approach of 
using an increase in the number of law enforcement activities as a 
measure. Adding participating law enforcement agencies incrementally 
ensures an increase in law enforcement activity without the need to 
rely on data that may be hard for States to collect. States are still 
encouraged to collect data and make all due effort to record all of the 
impaired driving law enforcement activity that is conducted in the 
State in a given year.
    West Virginia expressed concern that States with plans that 
initially cover 65 percent or more of the State's population or 
geographic areas would find it difficult to achieve an increase beyond 
that amount in subsequent years in order to maintain compliance. West 
Virginia requests that the agency consider a decrease in the impaired 
driving fatality rate as an alternative to the requirement that a State 
meaningfully increase its law enforcement activities.
    Under the agency's proposal, compliance with this provision does 
not require a State to achieve increases above 65 percent. If a State 
submits a plan in a grant year that covers 65 percent or more of the 
State, it is not required to produce plans in subsequent grant years 
that demonstrate additional increases. This approach is intended to 
accommodate rural States with diffuse populations that may find it 
difficult to achieve increases beyond 65 percent. However, we encourage 
States to include in their enforcement plans as many law enforcement 
agencies as possible, as studies indicate that increasing the scope of 
a high visibility enforcement campaign will serve to reduce impaired 
driving fatalities faster than with a more limited effort. West 
Virginia's request that the agency consider a decrease in the impaired 
driving fatality rate as an alternative is inconsistent with the 
statute, which specifies an increase in the number of law enforcement 
activities as the measure. However, States that decrease their impaired 
driving fatality rate to .5 or less per 100,000,000 vehicles miles 
traveled are eligible to receive a Section 410 grant without the need 
to meet any programmatic criteria.
    MADD requested that the agency define the term ``high-incident 
locations''. The term is not used in the rule and we decline to do so. 
The term is used as part of the statutory requirement that States 
meaningfully increase law enforcement at ``high-incident locations.'' 
The agency's proposal largely obviates the need for a definition by 
requiring that a State's enforcement plan use law enforcement agencies 
that serve geographic areas that account for at least 50 percent of the 
State's alcohol-related fatalities. In this way, the plan would 
concentrate efforts on high-incident areas simply as a product of using 
law enforcement agencies in those areas. The agency is concerned that a 
set definition may inadvertently eliminate certain areas that could 
benefit from high visibility law enforcement. We are satisfied that 
States will naturally focus efforts in areas that have the greatest 
impact on traffic safety.
    GHSA asserted that States could not submit detailed media and 
enforcement plans until they received notification of grant award. We 
do not expect a State to buy media in advance of the grant award. 
Rather, the State need only provide its intended media approach in a 
general plan. As GHSA recognizes, general plans could include 
information regarding the relative reach a State would expect to attain 
with the media buys or the type of audience the messaging would target. 
In addition to this information, the agency expects to receive 
information on the areas of the State that would be targeted and how 
the media approach will reach the intended audience. The agency's 
proposal is broad enough to accommodate this approach. We do not agree 
that States will be unable to provide a list of law enforcement 
agencies expected to participate in the effort. The planning 
requirement is necessary to ensure that States have created a Statewide 
plan. The same requirement existed under the predecessor Section 410 
program and all States receiving grant funds in FY 2005 were able to 
provide this information in an application.
2. Prosecution and Adjudication Outreach Program
    To qualify for a grant based on this criterion, SAFETEA-LU requires 
a State to have:

    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.

    Under the agency's proposal, to achieve compliance with this 
criterion, a State would be required to conduct educational outreach 
for court professionals that focuses on innovative sentencing 
techniques in the prosecution and adjudication of impaired drivers; 
conduct educational outreach that focuses on the negative aspects of 
using diversion programs; or use a court monitoring program that 
collects specific information from a majority of State courts.
    The agency received several comments related to the prosecution and 
adjudication outreach programs that a State must conduct. As a general 
matter, commenters expressed concern about the level of agency review 
of course content and the perceived requirement to use NHTSA courses. 
GHSA recommended that NHTSA publish a list of acceptable programs and 
allow States to select from the list. The Joint State Commenters did 
not

[[Page 20560]]

object to a review of course content by NHTSA, but thought States 
should have the ``final say on the diversion and innovative approaches 
materials.'' Wisconsin requested further information on the types of 
programs that would be acceptable to the agency, including the required 
frequency of the training courses. Most of these commenters viewed the 
agency's proposal as reducing the States' flexibility to tailor course 
content to State needs.
    The agency did not intend to impose specific course content 
requirements on States or to reduce State flexibility to design 
effective courses, nor did it intend to require States to use NHTSA or 
other particular training materials. The use of the term ``NHTSA-
approved courses'' in the regulatory text was intended to denote State-
submitted course material that the agency reviewed during the 
application process and approved for use under the Section 410 program. 
Similarly, the certification process was intended to assure that once 
material is approved for use it will not be changed at a later point in 
time without the knowledge of the agency.
    In view of the confusion expressed by these commenters, the agency 
has deleted the term ``NHTSA-approved courses'' and replaced it with 
language that better clarifies this intent. Additionally, to respond to 
the comment that more guidance on program content be provided, we have 
revised the rule to provide a list of topics that each educational 
outreach program must address. The agency's approach ensures that 
States retain the flexibility to determine the specific course content 
used. States will not need to submit full course material to the agency 
for review and approval. Instead, States will submit a course syllabus 
and a certification that the outreach program covers the course topics 
listed in the rule.
    For an outreach program that provides training on innovative 
sentencing techniques in the prosecution and adjudication of impaired 
drivers, the rule provides that the course topics must include: (1) The 
use of alcohol assessments and treatment; (2) vehicle sanctions (which 
may include impoundments, plate sanctions, ignition interlock 
installation use, etc., depending on the status of State law); (3) 
electronic monitoring and home detention; and (4) information on DWI 
courts and other types of treatment courts. For an outreach program 
that focuses on the negative aspects of using diversion programs, the 
rule provides that the course topics must include: (1) The State's 
impaired driving statutes and applicable case law; (2) searches, 
seizures and arrests (an examination of current statutes and case law); 
(3) admissibility of evidence in impaired driving cases; (4) 
biochemical and physiological information (covers effects of drugs and 
alcohol on the human body); and (5) sentencing of impaired drivers.
    The agency has stopped short of requiring course materials for each 
program. However, States that are seeking additional guidance may 
choose to consult the NHTSA publications and funded training materials, 
Strategies for Addressing the DWI Offender: 10 Promising Sentencing 
Practices; Prosecuting the Impaired Driver: DUI/DWI Cases; and The 
Court's Role in Impaired Driving, for help in developing their own 
curriculum. The final rule continues to require that the education 
program be provided on an annual basis, but clarifies that it is to be 
provided at least once a year and to consist of eight hours of 
training, in response to Wisconsin's query. States may choose to 
include the training as part of a Statewide legal conference or grant 
continuing education credit for attendance.
    Wisconsin and COSCA requested that the agency identify certain 
situations where diversion programs might be considered appropriate or 
beneficial, and therefore appropriate for inclusion in course content. 
We decline to do so. The statutory provision governing this criterion 
requires States to work to ``reduce the use of diversion programs [for] 
defendants who repeatedly commit impaired driving offenses.'' In view 
of this specific requirement, it would be inappropriate for the agency 
to make recommendations that might lead to an increase in the use of 
diversion programs. As we explained in the NPRM, diversion programs 
that allow an offender to obtain a reduction or dismissal of an 
impaired driving charge or removal of an impaired driving offense from 
a driving record based on participation in an educational course or 
community service activity are problematic. Repeat offenders escape 
detection under these types of programs. States are free to discuss 
other programs that fall outside of the definition and, therefore, are 
not considered diversion programs under this criterion.
    NTLC was concerned that the agency's proposal would create an 
``express partnership between judges and prosecutors,'' in 
contravention of their ethical duties. NTLC also disagreed with the 
agency's statement in the preamble to the NPRM urging judges and 
prosecutors to exercise oversight in using diversion programs to ensure 
that the records of impaired driving remain available for enhancement 
in the event of recidivism. NTLC views record availability as a 
legislative matter and not an obligation of a judge or a prosecutor.
    Nothing in the agency's proposal requires judges and prosecutors to 
act in contravention of their ethical duties, and no changes are 
necessary. Diversion programs, as the agency has defined them in this 
rule, are programs that result in the removal of an impaired driving 
charge from a driving record. Although States may have specific laws or 
policies regarding the treatment of diverted defendants' records, 
prosecutors present the use of diversion programs and judges approve 
that use. In this way, prosecutors and judges have control over whether 
records are available for review in the event of an offender's 
recidivist behavior.
    Commenters raised several issues about the use of a State Judicial 
Educator (SJE) under the proposal. Wisconsin asked the agency to 
provide a definition for the position and asked whether the use of a 
State Judicial Education Office would qualify. GHSA asked the agency to 
clarify the requirements.
    The proposal did provide a definition. The proposal defined the SJE 
as an individual used by the State to provide support in the form of 
education and outreach programs and technical assistance to 
continuously improve personal and professional competence of all 
persons performing judicial branch functions. The agency agrees that a 
State Judicial Education Office is an acceptable alternative to the use 
of an individual to provide judicial education. The agency has revised 
the definition to allow the use of either an individual or an entity 
that provides judicial education. In response to GHSA's request for 
clarification, we believe that the definition is flexible enough to 
accept as qualifying any individual or office the State designates as 
responsible for judicial education statewide. The State may determine 
the type of qualifications and background necessary to carry out that 
role. Subject to these qualifications, current judges, retired judges, 
or judges with impaired driving case experience, for example, may serve 
as a State's SJE.
    MADD suggested that the agency amend the proposal to ensure that a 
State use only full-time Traffic Safety Resource Prosecutors (TSRPs) 
and SJEs. The agency intended that these positions would be on a full-
time basis. We have revised both of the definitions to make this clear.

[[Page 20561]]

    GHSA stated that highway safety offices would not receive 
additional funding over the course of SAFETEA-LU that would enable them 
to fund the SJE or TSRP positions. The agency has set no requirement on 
how these positions should be funded. However, provided that the 
positions offer impaired-driving-related educational programs to judges 
and prosecutors, they may be funded under Section 410, which provides 
substantially increased funds from previous years. In response to 
GHSA's comment, the agency has revised the rule to require that the 
State submit a list of impaired-driving-related educational programs 
offered by each position to ensure that States may use Section 410 
funds for these activities. As almost all States already make use of an 
SJE position and do so without regard to this criterion, we do not 
believe that funding impediments are a significant issue.
    The agency received a number of comments related to the court 
monitoring program. GHSA requested that the regulation more clearly 
define the court monitoring program, and asked whether a State tracking 
system that recorded the offender's arrest, conviction and disposition 
of the charges would qualify. COSCA thought that this program lacked 
explicit and defined performance criteria, and requested that the 
agency revise the terminology. NTLC was concerned that confusion would 
result between this criterion and other agency grant programs that 
involve court monitoring.
    A significant goal of the prosecution and adjudication outreach 
program criterion is to inform States about how their courts treat 
impaired drivers. With the information collected, States should be able 
to identify jurisdictions that do not fully prosecute and adjudicate 
impaired drivers. To comply under the proposal, a State must collect 
data from at least 50 percent of its courts (consistent with the 
statutory requirement that a majority of the courts be covered) and the 
data collected must include the original charges filed against a 
defendant, the final charges presented by the prosecutor, and the 
disposition of the charges or the sentence provided. The appropriate 
method for collecting this information is not detailed in the rule and 
is left to the discretion of the individual States. The compliance 
requirements are straightforward and the agency does not believe that 
additional performance criteria need to be specified. The requirements 
of this criterion are separate from any other grant program of the 
agency, and there is no reason to believe that confusion might result.
3. BAC Testing Program
    To qualify for a grant based on this criterion, SAFETEA-LU requires 
a State to have:

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

    Under the NPRM, to demonstrate compliance with this criterion, a 
State would be required to increase its rate of blood alcohol testing 
from one year to the next. States under the testing average of 50 
percent would be required to experience an increase of 5 percent each 
year and States over this average would be required to experience an 
increase of 5 percent of the untested drivers in the State. To 
determine compliance, the agency proposed to use FARS data. The agency 
did not specify particular elements of an effective system, choosing 
instead to rely on data as a measure of compliance with this criterion.
    The Joint State Commenters asserted that the statute merely 
requires a State to have a ``system'' for increasing BAC testing, 
without the need to actually achieve increases, and that even decreases 
should be acceptable provided a system is in place. Alternatively, The 
Joint State Commenters took issue with the agency's requirement that 
States achieve a five percent increase in BAC testing each year to 
achieve compliance, asserting that the agency was not free to disregard 
small increases based on the statutory language. The Joint State 
Commenters requested that the agency count any percentage increase in 
BAC testing for purposes of compliance.
    With respect to the first argument, we disagree. SAFETEA-LU 
requires a State to implement an ``effective'' system for increasing 
BAC testing. A system that does not produce increases or that results 
in decreases is not an ``effective'' system under the statute. We 
address the assertion that a system for increasing BAC, alone, should 
be sufficient in more detail in our response to comments from 
Advocates, below.
    With respect to the second argument, we acknowledge that the 
statute does not specify the amount of increase required. In light of 
the comment, we have reviewed the FARS data that forms the basis for 
these calculations and determined that a one percent increase would be 
acceptable to meet the minimum intent of the statute. Amounts below one 
percent are not commensurate with a system that is ``effective.'' We 
have revised and simplified the rule to require that all States, 
regardless of BAC testing level, achieve a one percent increase in the 
BAC testing rate over the previous year to be compliant with the 
criterion. We have also removed from the rule the conversion rate 
approach that would have required smaller incremental increases for 
States with BAC testing above 50 percent, in view of the overall 
decrease in the requirement.
    To ensure uniform treatment of all States and consistency in the 
determination of BAC increases under this revised approach, the agency 
will make necessary calculations based on the final FARS data, 
determine each State's compliance, and notify the States each year. To 
accommodate this, we have made two changes to the proposed rule. First, 
we have included language indicating that the BAC rate determinations 
will be made by the agency. Second, we have removed the requirement for 
a State to certify that it has achieved the required BAC rate to 
demonstrate compliance, since the agency will make that determination. 
In its place, we have substituted a requirement for a simple statement 
that the State intends to apply on the basis of achieving the required 
BAC testing rate increase.
    Wisconsin questioned the agency's requirement that States with BAC 
testing above the national average achieve additional increases. 
SAFETEA-LU amended the previous statutory requirement that allowed a 
State to comply with a testing rate equal to or above the national 
average. The new statutory language requires States to have systems 
that increase BAC testing rates over the previous year regardless of 
whether the rate exceeds the national average.
    Minnesota stated that compliance would be much more difficult for 
states that already had a very high testing percentage, and recommended 
that any State testing above 85 percent be deemed automatically in 
compliance. The agency's revised approach under the final rule requires 
a one percent increase each year regardless of the State's testing 
average. For States with high testing rates, we agree that further 
increases may be more difficult to achieve. However, under a one 
percent increase requirement, States with higher testing levels need 
only report a small number of additional BAC tests each year. Even in 
States with the highest testing levels, we believe that this is a 
manageable requirement. We note that Minnesota's suggestion to cap 
required increases at 85 percent, which we do not adopt, would not 
impact any State, based on the most currently available BAC testing 
data. The highest reported

[[Page 20562]]

testing rate for any State is just over 80 percent.
    Advocates believe that the agency's regulation should provide 
system goals for States in addition to the performance requirements. At 
a minimum, according to Advocates, States should be required to enact 
and maintain laws that require mandatory BAC testing both for drivers 
who are killed in a fatal crash and for those who survive a crash in 
which a fatality occurs.
    For the first two years of the Section 410 program under TEA-21, 
the agency allowed States to achieve compliance with a limited set of 
system goals. These goals included enacting laws that mandate testing 
or conducting annual statewide workshops that promote good testing and 
reporting practices. In spite of this approach, the national average 
for BAC testing remained relatively constant under TEA-21.
    We understand, however, that determining compliance purely on 
achievement of performance goals may dissuade States from attempting 
any activities that achieve BAC testing increases. For this reason, in 
response to Advocates' comment, the agency has revised the proposal to 
include an alternative requirement (but not a requirement that operates 
in addition to the performance requirement, as Advocates suggests). A 
State may achieve compliance in FY 2006 and FY 2007 by submitting a 
plan for increasing its BAC testing rate. The plan must consist of 
approaches that the State will take under the grant to achieve an 
increase in BAC testing that would meet the performance requirements of 
the criterion. To achieve compliance, the plan must include a 
description of each approach, including how it will be implemented and 
the expected outcome as a result of implementation. Approaches may 
include, as Advocates suggests, the enactment of a law mandating BAC 
testing. A State may also include approaches that resolve failures in 
the reporting of BAC test results. Statewide symposiums and workshops 
may be used as long as they bring together key officials in the State 
such as law enforcement officials, prosecutors, hospital officials, 
medical examiners, coroners, physicians, and judges and discuss the 
medical, ethical and legal impediments to increasing BAC testing.
    After FY 2007, a State may no longer use the planning requirement 
to satisfy this criterion, unless it has a law in place that requires 
the testing of drivers in all fatal crashes--it must instead meet the 
performance requirement of this criterion. The planning requirement 
will be available to States in these later years of the program, in 
lieu of the performance requirement, only if they also have a law 
mandating the testing of all drivers in all fatal crashes. A compliant 
law must require testing in all fatal crashes and may not condition the 
use of tests on the establishment of probable cause. We have amended 
the proposal to provide for this alternative. We believe that the 
performance requirement and the planning requirement alternative, taken 
together, strike the appropriate balance between the need for actual 
increases in testing and the recognition that an effective system 
requires time to affect the testing numbers. We have also amended the 
rule to require that States complying with the planning requirement in 
subsequent years must also submit information demonstrating that the 
plan was effectively implemented and an updated plan for increasing BAC 
testing.
    Wisconsin stated that breath testing is legally equivalent to blood 
testing and asked whether the agency considered this in its approach. 
The agency's proposal accommodates Wisconsin's concern. It continues 
the approach taken in TEA-21 that defines BAC to mean grams of alcohol 
per deciliter or 100 milliliters of blood or grams of alcohol per 210 
liters of breath.
4. High Risk Drivers Program
    To qualify for a grant based on this criterion, SAFETEA-LU requires 
a State to have:

    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.

    The agency's proposal provides that a State suspend the license of 
an individual convicted of impaired driving with a blood alcohol 
concentration of 0.15 or higher for one year. The proposal provides 
that, after 45 days, the State may allow the individual to receive a 
restricted license that would permit the use of a vehicle equipped with 
an ignition interlock. Driving would be restricted to places of 
employment, school or treatment. A qualifying State must also require 
that offenders be subject to a mandatory assessment by certified 
substance abuse officials.
    National Interlock Systems, Inc. expressed concern about language 
in the preamble to the NPRM directing the State's use of ignition 
interlocks that meet the agency's performance specifications for 
ignition interlocks (57 FR 11772). National stated that any update to 
the agency's specifications would impose a significant financial burden 
on the interlock industry unless they were phased-in over time. The 
agency's performance specifications are provided as guidance, and 
States have discretion to adopt the specifications or develop their 
own. The regulatory language does not impose a requirement to use the 
agency's specifications. As a matter of sound practice, however, we 
recommend that States adopt these specifications. The commenter's 
concerns about phase-in requirements under performance specifications 
are outside the scope of this action, and should be addressed to 
efforts under those specifications.
    LifeSafer Interlock, Inc. asserted that the requirement that an 
offender install an ignition interlock in every vehicle owned and every 
vehicle operated ``will only serve to economically force most offenders 
to opt out'' of the ignition interlock program and thereby limit 
overall use of interlocks. The agency explained that its reason for 
imposing the requirement was to ensure that driving restrictions are 
not easily circumvented. LifeSafer's own comment acknowledges that 
``the majority of the recidivism while an interlock is installed is a 
result of the use of non-interlock equipped vehicles.'' While there are 
good and practicable reasons for requiring installation of interlocks 
in all vehicles, the statutory language identifies the interlock 
requirement as a sanction that attaches to the individual's license. 
Accordingly, the agency has revised the proposal to remove the 
requirement that an offender install interlocks in all vehicles owned 
and all vehicles operated. We are retaining, without change, the 
requirement that a State provide a license that restricts the offender 
to driving only vehicles that are equipped with interlocks.
    LifeSafer requests that the agency include an exemption to the 
interlock requirement for employer-owned vehicles. This request appears 
to be based on the statutory language that

[[Page 20563]]

restricts an offender to an interlocked-equipped vehicle when driving 
to places of employment. The commenter reasons that the language does 
not similarly restrict an offender's use of vehicles ``while in the 
course employment,'' and that therefore the intent of the statute is 
not to force employers to install ignition interlocks. We agree that 
the statute does not require employers to install interlocks in their 
vehicles. However, the statute provides clear language that the 
offender is permitted to drive ``only in an automobile equipped with a 
certified alcohol ignition interlock device.'' On this basis, the 
agency declines to revise the rulemaking to add a specific exemption 
for employer vehicles.
    National and LifeSafer both noted that the agency's rule makes no 
provision for an offender to drive to an interlock service facility. We 
agree that travel to an interlock service facility is an inherent part 
of operating an interlock program, and have revised the proposal to 
allow for this.
    The agency received one comment from one organization regarding the 
statutory requirement to provide alcohol assessments to high-risk 
offenders. GHSA recommended that the agency clarify the use of a 
certified substance abuse official and provide additional information 
regarding proper certification and training of these individuals. GHSA 
also requested that the agency provide examples of effective assessment 
tools.
    The agency's proposal requires that a State use a certified 
substance abuse official to perform an alcohol assessment of a high BAC 
offender, but does not mandate the education or training background of 
these individuals or the process by which these individuals receive 
approval from the State to conduct alcohol assessments. The licensing 
of professionals is traditionally a function of the State and we see no 
reason to vary that approach in this rule. Most States already provide 
alcohol assessments to offenders and have developed the necessary 
infrastructure to implement these programs. A State is free to define a 
certification process, if it does not already have one, and to decide 
what level of education or training background a substance abuse 
official must have.
    Assessment tools form the basis for appropriate treatment 
sentencing and the reduction of impaired driving recidivism. States 
have discretion to decide what type of assessment tools to use, and the 
agency takes no position about the relative value of any assessment 
method. However, in response to GHSA's query, the Addiction Severity 
Index (ASI) and the Structured Clinical Interview for Diagnosis (SCID) 
are two of the more well-known assessment tools. To minimize the 
effects of deficiencies in any one tool, we advocate the use of a 
combination of assessment tools.
5. 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.

    Under the agency's proposal, to demonstrate compliance with this 
criterion, the State would be required to institute either: An 
effective alcohol rehabilitation program that consists of mandatory 
assessment and treatment for repeat offenders, a statewide tracking 
system that monitors the progress of repeat offenders through 
treatment, and educational opportunities provided to court 
professionals that cover treatment approaches and sanctioning 
techniques; or a DWI court that abides by the Ten Guiding Principles of 
DWI Courts, as established by the National Drug Court Institute, and an 
increase of one DWI court each subsequent year of the program.
    The agency received one comment regarding the proposed components 
of an effective rehabilitation program. The Joint State Commenters 
stated that the requirement to provide educational opportunities to 
court professionals was not referenced in the statute and that such a 
requirement should not be considered essential for an effective 
rehabilitation program. The agency believes that treatment sentencing 
is an important component of rehabilitating repeat offenders. We 
included the education requirement because court professionals do not 
always understand how to use the assessment information they are 
provided to apply the most effective treatment sanction. We 
acknowledge, however, that the requirement is somewhat redundant of the 
prosecution and adjudication outreach criterion listed above and that a 
training program conducted once a year is likely to result in only a 
marginal increase in the overall ability to use assessments. In view of 
the comment, we are also concerned that imposing this requirement may 
dissuade States from attempting compliance with the other more 
important components of the program. Although States are encouraged to 
provide educational opportunities to court professionals regarding the 
use of assessments and treatments, the agency has revised the rule to 
remove the requirement for an educational component.
    The Joint State Commenters asserted that States should be free to 
set up their own DWI courts without having to meet the Ten Guiding 
Principles of DWI Courts. These commenters request that, at a minimum, 
the agency accept State courts that are in ``substantial conformity'' 
with the principles.
    The Ten Guiding Principles of DWI Courts present a basis to 
understand the operation of DWI courts and to differentiate their use 
from general docket courts. Under the principles, DWI courts are 
required to target a population of offenders for the court; provide a 
clinical assessment and treatment plan for each offender; supervise the 
offender through treatment; forge partnerships with the agencies and 
organizations involved; develop case management strategies; address 
transportation issues; and evaluate outcomes and ensure that the 
program is sustainable. In addition, a judge takes responsibility for 
operation of the court. Many of these concepts are inherent to the 
operation of courts generally (e.g., judicial leadership, cases managed 
with the involvement of all parties) and present no difficulty for 
State compliance. Other concepts are essential to operation of a 
treatment-based court (e.g., providing treatments and assessments and 
monitoring offenders through treatment). All of them are fundamentally 
important to the proper operation of the court and none is 
impracticable or onerous. Consequently, the agency declines to take an 
approach that would allow a State to select among them. Allowing a 
court to stray from these principles provides no assurance that 
offenders will be processed using a treatment-based court.
    The Joint State Commenters and GHSA commented that the statute does 
not support a requirement that a State increase the use of DWI courts 
each year of the program. GHSA further stated that the agency's 
proposed increase of one DWI court each year is not tailored to meet 
the needs of individual States.
    For the first time under Section 410, States are eligible to 
receive grant funds based on using certain treatment methods. DWI 
courts represent a relatively new approach to sanctioning and treating 
repeat offenders. Although based on the noted success of drug courts, 
which are