Final Rule for Section 163 Funds

23CFR Part 1225

DEPARTMENT OF TRANSPORTATION

PART 1225--OPERATION OF MOTOR VEHICLES BY INTOXICATED PERSONS

Authority: 23 U.S.C. 163; delegation of authority at 49 CFR 1.48 and 1.50.

Source: 63 FR 46886, Sept. 3, 1998, as amended at 64 FR 35573, July 1, 1999

Effective Date: July 1, 1999

Sec. 1225.1 Scope.

This part prescribes the requirements necessary to implement Section 163 of Title 23, United States Code, which encourages States to enact and enforce 0.08 BAC per se laws.

Sec. 1225.2 Purpose.

The purpose of this part is to specify the steps that States must take to qualify for incentive grant funds in accordance with 23 U.S.C. 163, and to encourage States to enact and enforce 0.08 BAC per se laws.

Sec. 1225.3 Definitions.

As used in this part:

(a) BAC means either blood or breath alcohol concentration.
(b) BAC per se law means a law that makes it an offense, in and of itself, to operate a motor vehicle with an alcohol concentration at or above a specified level.
(c) Alcohol concentration means either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.
(d) Has enacted and is enforcing means the State's law is in effect and the State has begun to implement the law.
(e) Operating a motor vehicle means driving or being in actual physical control of a motor vehicle.
(f) Standard driving while intoxicated offense means the non-BAC per se driving while intoxicated offense in the State.
(g) State means any one of the fifty States, the District of Columbia, or Puerto Rico.

Sec. 1225.4 General requirements.

(a) Qualification requirements.


(1) To qualify for a first-year grant under 23 U.S.C. 163, a State must submit a certification by an appropriate State official, that the State has enacted a 0.08 BAC per se law that conforms to 23 U.S.C. 163 and Sec. 1225.5 of this part and will become effective and be enforced in the current fiscal year and that the funds will be used for eligible projects and programs.

(i) If the State's 0.08 BAC per se law is currently in effect and is being enforced, the certification shall be worded as follows:

(Name of certifying official), (position title), of the (State or Commonwealth) of ______, do hereby certify that the (State or Commonwealth) of ______ has enacted and is enforcing a 0.08 BAC per se law that conforms to 23 U.S.C. 163 and 23 CFR 1225.5, (citations to State law), and that the funds received by the (State or Commonwealth) of ______ under 23 U.S.C. 163 will be used for projects eligible for assistance under Title 23 of the United States Code, which include highway construction as well as highway safety projects and programs.

(ii) If the State's 0.08 BAC per se law is not currently in effect, but will become effective and be enforced before the end of the current fiscal year, the certification shall be worded as follows:

(Name of certifying official), (position title), of the (State or Commonwealth) of ______, do hereby certify that the (State or Commonwealth) of ______ has enacted a 0.08 BAC per se law that conforms to 23 U.S.C. 163 and 23 CFR 1225.5, (citations to State law), and will become effective and be enforced as of (effective date of the law), and that the funds received by the (State or Commonwealth) of ______ under 23 U.S.C. 163 will be used for projects eligible for assistance under Title 23 of the United States Code, which include highway construction as well as highway safety projects and programs.

(2) To qualify for a subsequent-year grant under 23 U.S.C. 163, a State must submit a certification by an appropriate State official.


(i) If the State's 0.08 BAC per se law has not changed since the State last qualified for grant funds under this program, the certification shall be worded as follows:

(Name of certifying official), (position title), of the (State or Commonwealth) of ________, do hereby certify that the (State or Commonwealth) of ________ has not changed and is enforcing a 0.08 BAC per se law, which conforms to 23 U.S.C. 163 and 23 CFR 1225.5, (citations to State law), and that the funds received by the (State or Commonwealth) of ________ under 23 U.S.C. 163 will be used for projects eligible for assistance under Title 23 of the United States Code, which include highway construction as well as highway safety projects and programs.

(ii) If the State's 0.08 BAC per se law has changed since the State last qualified for grant funds under this program, the certification shall be worded as follows:

(Name of certifying official), (position title), of the (State or Commonwealth) of ________, do hereby certify that the (State or Commonwealth) of ________ has amended and is enforcing a 0.08 BAC per se law that conforms to 23 U.S.C. 163 and 23 CFR 1225.5, (citations to State law), and that the funds received by the (State or Commonwealth) of ________, under 23 U.S.C. 163 will be used for projects eligible for assistance under Title 23 of the United States Code, which include highway construction as well as highway safety projects and programs.

(3) An original and four copies of the certification shall be submitted to the appropriate NHTSA Regional Administrator. Each Regional Administrator will forward the certifications it receives to appropriate NHTSA and FHWA offices.
(4) Each State that submits a certification will be informed by the agencies whether or not it qualifies for funds.
(5) To qualify for grant funds in FY 1999 or in a subsequent fiscal year, certifications must be received by the agencies not later than July 15 of that fiscal year.


(b) Limitation on grants. A State may receive grant funds, subject to the following limitations:

(1) The amount of a grant apportioned to a State under Sec. 1225.5 of this part shall be determined by multiplying:

(i) The amount authorized to carry out section 163 of 23 U.S.C. for the fiscal year; by
(ii) The ratio that the amount of funds apportioned to each such State under section 402 for such fiscal year bears to the total amount of funds apportioned to all such States under section 402 for such fiscal year.

(2) A State may obligate grant funds apportioned under this part for any project eligible for assistance under Title 23 of the United States Code.
(3) The Federal share of the cost of a project funded with grant funds awarded under this part shall be 100 percent.

Sec. 1225.5 Adoption of 0.08 BAC per se law.

To qualify for an incentive grant under this part, a State must demonstrate that it has enacted and is enforcing a law that provides that any person with a blood alcohol concentration (BAC) of 0.08 percent or greater while operating a motor vehicle in the State shall be deemed to have committed a per se offense of driving while intoxicated or an equivalent per se offense. The law must:

(a) Apply to all persons;
(b) Set a blood alcohol concentration of not higher than 0.08 percent as the legal limit;
(c) Make operating a motor vehicle by an individual at or above the legal limit a per se offense;
(d) Provide for primary enforcement;
(e) Apply the 0.08 BAC legal limit to the State's criminal code and, if the State has an administrative license suspension or revocation (ALR) law, to its ALR law; and
(f) Be deemed to be or be equivalent to the standard driving while intoxicated offense in the State.

Sec. 1225.6 Award procedures.

(a) In each Federal fiscal year, grant funds will be apportioned to eligible States upon submission and approval of the documentation required by Sec.1225.4(a) and subject to the limitations in Sec.1225.4(b). The obligation authority associated with these funds is subject to the limitation on obligations pursuant to section 1102 of TEA 21.
(b) As soon as practicable after the apportionment in a fiscal year, but in no event later than September 30 of the fiscal year, the Governor's Representative for Highway Safety and the Secretary of the State's Department of Transportation for each State that receives an apportionment shall jointly identify, in writing to the appropriate NHTSA Regional Administrator and FHWA Division Administrator, the amounts of the State's apportionment that will be obligated to highway safety program areas and to Federal-aid highway projects.