PART 1225—OPERATION OF MOTOR VEHICLES BY INTOXICATED PERSONS Authority: 23 U.S.C. 163; sec. 351, Pub. L. 106-346—Appendix, 114 Stat. 1356A-34, 35; delegation of authority at 49 CFR 1.48 and 1.50. Source: 68 FR 50708, Aug. 22, 2003, unless otherwise noted. § 1225.1 Scope. This part prescribes the requirements necessary to implement 23 U.S.C. 163, which encourages States to enact and enforce 0.08 BAC per se per se § 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 the steps that States must take to avoid the withholding of funds as required by Section 351 of Public Law 106-346—Appendix. § 1225.3 Definitions. As used in this part: (a) Alcohol concentration (b) ALR (c) BAC (d) BAC per se law (e) Citations to State law (f) Has enacted and is enforcing (g) Operating a motor vehicle (h) Standard driving while intoxicated offense per se (i) State § 1225.4 Adoption of 0.08 BAC per se In order to avoid the withholding of funds as specified in § 1225.8 of this part, and to qualify for an incentive grant under § 1225.5 of this part, a State must demonstrate that it has enacted and is enforcing a law that provides that any person with a blood or breath 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 per se (a) Apply to all persons; (b) Set a BAC 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 (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. § 1225.5 General requirements for incentive grant program. (a) Certification requirements. per se (i) If the State's 0.08 BAC per se (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 (ii) If the State's 0.08 BAC per se (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 (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 (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 (ii) If the State's 0.08 BAC per se (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 (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 a fiscal year, certifications must be received by the agencies not later than July 15 of that fiscal year. (b) Limitation on grants. (1) The amount of a grant apportioned to a State under § 1225.4 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. § 1225.6 Award procedures for incentive grant program. (a) In each Federal fiscal year, grant funds will be apportioned to eligible States upon submission and approval of the documentation required by § 1225.5(a) and subject to the limitations in § 1225.5(b). The obligation authority associated with these funds is subject to the limitation on obligation pursuant to section 1102 of the Transportation Equity Act for the 21st Century (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, the amounts of the State's apportionment that will be obligated to highway safety program areas and to Federal-aid highway projects. Each NHTSA Regional Administrator will forward copies of the joint letters to the appropriate NHTSA and FHWA offices. (c) Apportionments will not be made by the NHTSA and FHWA unless this letter from the State is received. § 1225.7 Certification requirements for sanction program. (a) Beginning with FY 2004, to avoid the withholding of funds, each State shall certify to the Secretary of Transportation, before the last day of the previous fiscal year, that it meets all the requirements of 23 U.S.C. 163 and this part. (b) The certification shall contain a statement from an appropriate State official that the State has enacted and is enforcing a 0.08 BAC per se (1) If the State's 0.08 BAC per se I, (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 (2) If the State's 0.08 BAC per se I, (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 (c) An original and four copies of the certification shall be submitted to the appropriate NHTSA Regional Administrator. Each NHTSA Regional Administrator will forward copies of the certifications received to the appropriate NHTSA and FHWA offices. (d) Once a State has been determined to be in compliance with the requirements of 23 U.S.C. 163 and this part, it is not required to submit additional certifications, except that the State shall promptly submit an amendment or supplement to its certification provided under this section if the State's 0.08 BAC per se (e) Certifications submitted in FY 2003. (2) Any State that submits a certification of compliance under this section, in conformance with the requirements of 23 U.S.C. 163, between July 16, 2003 and September 30, 2003, will not qualify for an incentive grant in FY 2003, but will meet the certification requirements of the sanction program, thereby avoiding the withholding of funds in FY 2004. (f) Certifications submitted in FY 2004 or thereafter. § 1225.8 Funds withheld from apportionment. (a) Beginning in fiscal year 2004, the Secretary shall withhold 2 percent of the amount required to be apportioned for Federal-aid highways to any State under each of paragraphs (1), (3), and (4) of section 104(b) of title 23, United States Code, if a State has not enacted and is not enforcing a law that meets the requirements of 23 U.S.C. 163 and § 1225.4 of this part. (b) In fiscal year 2005, the Secretary shall withhold 4 percent of the amount required to be apportioned for Federal-aid highways to any State under each of paragraphs (1), (3), and (4) of section 104(b) of title 23, United States Code, if a State has not enacted and is not enforcing a law that meets the requirements of 23 U.S.C. 163 and § 1225.4 of this part. (c) In fiscal year 2006, the Secretary shall withhold 6 percent of the amount required to be apportioned for Federal-aid highways to any State under each of paragraphs (1), (3), and (4) of section 104(b) of title 23, United States Code, if a State has not enacted and is not enforcing a law that meets the requirements of 23 U.S.C. 163 and § 1225.4 of this part. (d) In fiscal year 2007, and in each fiscal year thereafter, the Secretary shall withhold 8 percent of the amount required to be apportioned for Federal-aid highways to any State under each of paragraphs (1), (3), and (4) of section 104(b) of title 23, United States Code, if a State has not enacted and is not enforcing a law that meets the requirements of 23 U.S.C. 163 and § 1225.4 of this part. § 1225.9 Period of availability of withheld funds. If a State meets the requirements of 23 U.S.C. 163 and § 1225.4 of this part within 4 years from the date that a State's apportionment is reduced under § 1225.8, the apportionment for such State shall be increased by an amount equal to the reduction, as illustrated by appendix A of this part. The restored apportionment will be available to a State, as quickly as possible, upon a determination by NHTSA that the State is in conformance and notification to the FHWA. § 1225.10 Apportionment of withheld funds after compliance. If a State has not met the requirements of 23 U.S.C. 163 and § 1225.4 of this part by October 1, 2007, the funds withheld under § 1225.8 shall begin to lapse and will no longer be available for apportionment to the State, in accordance with appendix A of this part. § 1225.11 Notification of compliance. (a) Beginning with FY 2004, NHTSA and FHWA will notify States of their compliance or noncompliance with the statutory and regulatory requirements of 23 U.S.C. 163 and this part, based on a review of certifications received. States will be required to submit their certifications on or before September 30, to avoid the withholding of funds in a fiscal year. (b) This notification of compliance will take place through FHWA's normal certification of apportionments process. If the agencies do not receive a certification from a State, by June 15 of any fiscal year, or if the certification does not conform to the requirements of 23 U.S.C. 163 and this part, the agencies will make an initial determination that the State is not in compliance. § 1225.12 Procedures affecting States in noncompliance. (a) Each fiscal year, each State determined to be in noncompliance with 23 U.S.C. 163 and this part, based on NHTSA and FHWA's preliminary review of its certification, will be advised of the amount of funds expected to be withheld under § 1225.8 from apportionment, as part of the advance notice of apportionments required under 23 U.S.C. 104(e), which is ordinarily issued on July 1 of each fiscal year. (b) If NHTSA and FHWA determine that any State is not in compliance with 23 U.S.C. 163 and this part, based on the agencies' preliminary review, the State may submit documentation showing why it is in compliance. States will have until September 30 to rebut the initial determination or to come into compliance with 23 U.S.C. and this part. Documentation shall be submitted through NHTSA's Regional Administrators, who will refer the requests to appropriate NHTSA and FHWA offices for review. (c) Each fiscal year, each State determined not to be in compliance with 23 U.S.C. 163 and this part, based on NHTSA's and FHWA's final determination, will receive notice of the funds being withheld under § 1225.8 from apportionment, as part of the certification of apportionments required under 23 U.S.C. 104(e), which normally occurs on October 1 of each fiscal year. Appendix A to Part 1225—Effects of the 0.08 BAC Sanction Program on Non-Complying States Effects of the 0.08 BAC Sanction Program on Non-Complying States Fiscal Withhold Lapse 2004 2% 2005 4 2006 6 2007 8 2008 8 2% withheld in FY04. 2009 8 4% withheld in FY05. 2010 8 6% withheld in FY06. 2011 8 8% withheld in FY07. 2012 8 8% withheld in FY08.