Regulatory Update of Transfer and Sanction Programs |
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Gregory G. Nadeau
Federal Highway Administration
Mark R. Rosekind
National Highway Traffic Safety Administration
30 September 2016
[Federal Register Volume 81, Number 190 (Friday, September 30, 2016)]
[Rules and Regulations]
[Pages 67158-67170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23788]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
Federal Highway Administration
23 CFR Parts 1270 and 1275
[Docket No. NHTSA-2016-0099]
RIN 2127-AL45
Regulatory Update of Transfer and Sanction Programs
AGENCY: National Highway Traffic Safety Administration (NHTSA) and
Federal Highway Administration (FHWA), Department of Transportation
(DOT).
ACTION: Interim final rule; request for comments.
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SUMMARY: This action revises the Federal implementing regulations for
the Section 154 (Open Container) and Section 164 (Repeat Intoxicated
Driver) programs as a result of enactment of the Fixing America's
Surface Transportation (FAST) Act. It incorporates the new compliance
criteria for the Section 164 program and updates the regulations to
reflect current practice. This document is being issued as an interim
final rule to ensure that States receive instructions that are
important to upcoming compliance determinations to be made on October
1, 2016. The agencies request comments on this rule. The agencies will
publish a document responding to any comments received and, if
appropriate, will amend provisions of the regulations.
DATES: This interim final rule is effective on October 1, 2016.
Comments concerning this interim final rule are due on November 30,
2016.
ADDRESSES: You may submit comments using the number identified in the
heading of this document by any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Mail: Docket Management Facility, M-30, U.S. Department of
Transportation, West Building, Ground Floor, Rm. W12-140, 1200 New
Jersey Avenue SE., Washington, DC 20590.
Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m. Eastern
Time, Monday through Friday, except Federal holidays.
Fax: (202) 493-2251.
Regardless of how you submit your comments, please mention the
docket number of this document.
[[Page 67159]]
You may also call the Docket at 202-366-9324.
Instructions: For detailed instructions on submitting comments and
additional information on the rulemaking process, see the Public
Participation heading of the Supplementary Information section of this
document. Note that all comments received will be posted without change
to http://www.regulations.gov, including any personal information
provided.
Privacy Act: Please see the Privacy Act heading under Regulatory
Analyses and Notices.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Publicly available docket materials are
available either electronically in www.regulations.gov or in hard copy
at the Docket Management Facility, M-30, U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC. The Docket Management Facility is
open between 9 a.m. and 5 p.m., Eastern Time, Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT:
NHTSA: For program issues: Barbara Sauers, Director, Office of
Grants Management and Operations, Telephone number: (202) 366-0144,
Email: Barbara.Sauers@dot.gov. For legal issues: Russell Krupen,
Attorney Advisor, Office of Chief Counsel, Telephone number: (202) 366-
1834, Email: Russell.Krupen@dot.gov; Facsimile: (202) 366-3820.
FHWA: For program issues: Erin Kenley, Team Leader, Safety Programs
Implementation and Evaluation Team, Office of Safety, Telephone number:
(202) 366-8556, Email: Erin.Kenley@dot.gov. For legal issues: William
Winne, Attorney Advisor, Office of Chief Counsel, Telephone number:
(202) 366-1397, Email: William.Winne@dot.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. Section 154: Open Container Laws
III. Section 164: Repeat Intoxicated Driver Laws
IV. Non-Compliance Penalties and Procedures
V. Notice and Comment, Effective Date, and Request for Comments
VI. Regulatory Analyses and Notices
VII. Public Participation
I. Introduction
On December 4, 2015, the President signed into law the Fixing
America's Surface Transportation Act (FAST Act), Public Law 114-94, the
first authorization enacted in over ten years that provides long-term
funding certainty for surface transportation. The FAST Act amended 23
U.S.C. 154 (Section 154) and 23 U.S.C. 164 (Section 164), which address
the serious national problems of impaired driving by encouraging States
to meet minimum standards for their open container laws and repeat
intoxicated driver laws. The FAST Act built on prior amendments to
those sections in the Moving Ahead for Progress in the 21st Century Act
(MAP-21), Public Law 112-141, signed into law on July 6, 2012.
The National Highway Traffic Safety Administration (NHTSA) and the
Federal Highway Administration (FHWA) (collectively, ``the agencies'')
are issuing this interim final rule (IFR), with immediate
effectiveness, to ensure that States receive instructions that are
important to upcoming compliance determinations to be made on October
1, 2016, as the changes in the FAST Act are effective on that date.
This IFR amends the Federal implementing regulations for Section 154
(23 CFR part 1270) and Section 164 (23 CFR part 1275) to reflect the
changed requirements from the recent Federal legislation. At the same
time, the agencies are taking this opportunity to update the
regulations to improve clarity, codify longstanding interpretation of
the statutes and current regulations, and streamline procedures for
States.
This preamble will first address the history of and modifications
to the minimum compliance requirements of Section 154 and Section 164,
respectively. It will then address the elements common to both
programs, including the penalties for noncompliance, the limitations on
use of funds associated with noncompliance, and the responsibilities of
compliant and non-compliant States.
II. Section 154: Open Container Laws
A. Background
The Transportation Equity Act for the 21st Century (TEA-21), Public
Law 105-178, was signed into law on June 9, 1998. On July 22, 1998, the
TEA-21 Restoration Act, Public Law 105-206 (a technical corrections
bill), was enacted to restore provisions that were agreed to by the
conferees to TEA-21, but were not included in the conference report.
Section 1405 of the TEA-21 Restoration Act amended chapter 1 of title
23, United States Code (U.S.C.), by adding Section 154, which
established a transfer program under which a percentage of a State's
Federal-aid highway construction funds would be transferred to the
State's apportionment under 23 U.S.C. 402 (Section 402) if the State
failed to enact and enforce a conforming ``open container'' law. These
funds could be used for alcohol-impaired driving countermeasures or the
enforcement of driving while intoxicated laws, or States could elect to
use all or a portion of the funds for hazard elimination activities
under 23 U.S.C. 152.
Under Section 154, to avoid the transfer of funds, a State must
enact and enforce an open container law ``that prohibits the possession
of any open alcoholic beverage container, or the consumption of any
alcoholic beverage, in the passenger area of any motor vehicle
(including possession or consumption by the driver of the vehicle)
located on a public highway, or the right-of-way of a public highway,
in the State.'' 23 U.S.C. 154(b)(1). All 50 States, the District of
Columbia, and Puerto Rico are considered to be States for the purposes
of this program.
On October 6, 1998, the agencies published an interim final rule
implementing the Section 154 program, 63 FR 53580 (Oct. 6, 1998),
followed by a final rule published on August 24, 2000. 65 FR 51532
(Aug. 24, 2000). Since that time, the minimum requirements that a
State's open container law must meet to comply with Section 154 have
not changed. However, subsequent legislation amended the penalty
provisions that apply to non-compliant States. Under current law,
noncompliance results in the reservation of funds rather than an
immediate transfer to Section 402; funds are reserved from different
Federal-aid highway programs and in a different amount (based on a
percentage defined in law); the transfer to Section 402 is dependent
upon a State's election to use funds for alcohol impaired driving
countermeasures; and funds may be used for highway safety improvement
program activities eligible under 23 U.S.C. 148 rather than hazard
elimination activities. The Federal implementing regulations were never
updated to reflect these statutory changes governing procedures.
This IFR updates the Federal implementing regulations to reflect
these procedural changes. In addition, it makes changes to improve
clarity, codify longstanding interpretations of the Federal statute and
regulations, streamline procedures for States, and eliminate regulatory
provisions that were not effectuated in practice for reasons discussed
below. These changes are intended to ensure a uniform understanding
among the States of the minimum requirements their open
[[Page 67160]]
container laws must meet. Revisions to the procedures for demonstrating
compliance, the penalties for noncompliance, and the responsibilities
of compliant and non-compliant States are discussed later in the
preamble as those aspects are common to the Section 154 program and the
Section 164 program.
B. Compliance Criteria for State Open Container Laws
NHTSA is delegated the authority by the Secretary of Transportation
to determine State compliance under Section 154 (49 CFR 1.95(f)). While
Congress has not changed the minimum requirements that a State's open
container law must meet to comply with Section 154 since the inception
of the program, NHTSA's experience implementing the compliance criteria
since the regulations were finalized in 2000 suggests the need to
provide additional clarity to the States on particular aspects of the
requirements. States are responsible for ensuring and maintaining their
own compliance with these requirements. The agencies believe that the
discussion in this preamble and the revisions to the regulations will
allow States to better understand the program and attain and maintain
compliance. These revisions are not intended to substantively amend the
compliance requirements of the Section 154 program.
1. Definitions (23 CFR 1270.3)
The agencies are adding definitions for the terms ``FHWA,''
``NHTSA,'' and ``open container law'' and eliminating the definition
for ``enact and enforce.'' The added definitions are for terms used in
the regulation, while the elimination of the definition of ``enact and
enforce'' is simply because the term is plain and does not need a
definition. The regulations continue to require a State to ``enact and
enforce'' a compliant law.
The agencies are amending the definition of ``open alcoholic
beverage container'' to add the parenthetical phrase ``(regardless of
whether it has been closed or resealed.)'' 23 CFR 1270.3(e).\1\ This is
intended to make clear that ``cork and carry'' or ``resealed wine
container'' laws exempting a recorked or resealed alcoholic beverage
container from the State's open container laws are not allowed under
the Federal law. Recorking or resealing does not negate the fact that
the contents in the bottle have been partially removed, a direct
concern under the Federal statute. Due to the preponderance of these
laws in States, the agencies determined that this clarification is
necessary. Recorked or resealed alcoholic beverages containers must be
stored outside of the passenger area, such as in the trunk of a motor
vehicle.
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\1\ Throughout this preamble, citations to the Section 154 and
Section 164 implementing regulations refer to the version as amended
by the IFR.
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2. Compliance Criteria (23 CFR 1270.4(a)-(c))
Congress has made no changes to the substantive compliance criteria
of Section 154 since the inception of the program. Therefore, the
agencies are not making any substantive changes to these sections of
the regulations. The six compliance criteria are discussed extensively
in the interim final rule (63 FR 53580 [Oct. 6, 1998]) and final rule
(65 FR 51532 [Aug. 24, 2000]) that first implemented the program. Those
discussions provide background and explanations regarding the Federal
minimum requirements.
3. Exceptions (23 CFR 1270.4(d))
The Federal implementing regulations require a State's open
container law to apply to ``the passenger area of any motor vehicle,''
with passenger area meaning ``the area designed to seat the driver and
passengers while the motor vehicle is in operation and any area that is
readily accessible to the driver or a passenger while in their seating
positions, including the glove compartment.'' 23 CFR 1270.3(g),
1270.4(b)(2). However, certain exceptions to this rule are permitted
provided they comply with the requirements in 23 CFR 1270.4(d)(1).
The Federal regulations have long permitted possession of an open
alcoholic beverage container in a locked glove compartment. NHTSA has
accepted as compliant a State provision permitting storage of an open
container in a locked center console because a locked center console is
functionally equivalent to a locked glove compartment. This IFR
logically extends that exception to allow possession of an open
alcoholic beverage container in any locked container (including a
locked fixed console or a locked glove compartment). The agencies
emphasize that this exception does not permit the possession in the
passenger area of an open alcoholic beverage container in tamper-
evident packaging. (See the earlier discussion about ``cork and carry''
and ``resealed wine container'' provisions.) While tamper-evident
packaging may assist law enforcement officers in identifying whether
consumption of the alcoholic beverage has occurred, it does not
restrict access to the alcoholic beverage, which is the purpose of open
container laws.
This IFR also moves the location of the phrase ``in a motor vehicle
that is not equipped with a trunk'' to remove any ambiguity that this
is a prerequisite for allowing placement of an open alcoholic beverage
container behind the last upright seat or in an area not normally
occupied by the driver or a passenger. No substantive change is
intended--the agencies have always interpreted and applied this
provision in this manner.
The Federal implementing regulations require a State's open
container law to apply to all occupants of a motor vehicle. However,
the Federal statute and implementing regulations permit exceptions
allowing a passenger, but never a driver, to possess an open alcoholic
beverage container or consume an alcoholic beverage in the passenger
area of ``a motor vehicle designed, maintained, or used primarily for
the transportation of persons for compensation, or in the living
quarters of a house coach or house trailer.'' 23 CFR 1270.4(d)(2). The
agencies are making technical corrections to this provision that do not
change its application.
III. Section 164: Repeat Intoxicated Driver Laws
A. Background
Section 1406 of the TEA-21 Restoration Act amended chapter 1 of
title 23, U.S.C., by adding Section 164, which established a transfer
program under which a percentage of a State's Federal-aid highway
construction funds would be transferred to the State's apportionment
under Section 402 if the State failed to enact and enforce a conforming
``repeat intoxicated driver'' law. As with Section 154, transfer funds
could be used for alcohol-impaired driving countermeasures or the
enforcement of driving while intoxicated laws, or States could elect to
use all or a portion of the funds for hazard elimination activities
under 23 U.S.C. 152.
Under Section 164, to avoid the transfer of funds, a State must
enact and enforce a repeat intoxicated driver law that establishes, at
minimum, certain specified penalties for second and subsequent
convictions of driving while intoxicated or driving under the
influence. As originally enacted, Section 164 required that States
impose the following minimum penalties: A one-year driver's license
suspension; the impoundment or immobilization of, or the installation
of an ignition interlock system on, the repeat intoxicated
[[Page 67161]]
driver's motor vehicles; an assessment of the repeat intoxicated
driver's degree of alcohol abuse, and treatment as appropriate; and the
sentencing of the repeat intoxicated driver to a minimum number of days
of imprisonment or community service. All 50 States, the District of
Columbia, and Puerto Rico are considered to be States for the purposes
of this program.
On October 19, 1998, the agencies published an interim final rule
that implemented the Section 164 program, 63 FR 55796 (Oct. 19, 1998),
followed by a final rule published on October 4, 2000. 65 FR 59112
(Oct. 4, 2000). The SAFETEA-LU Technical Corrections Act of 2008,
Public Law 110-244 (enacted June 6, 2008), amended some of the minimum
penalties States must impose on repeat offenders, and both MAP-21 and
the FAST Act further amended these minimum penalties. These Acts also
updated, in the same ways as Section 154, the penalty provisions that
apply to States that are not compliant with the program. Despite these
significant statutory changes over the past eight years, the Federal
implementing regulations have not been updated since 2000.
This IFR updates the minimum compliance criteria based on these
legislative changes, as well as to improve clarity, codify longstanding
interpretations, streamline procedures for States, and eliminate
regulatory provisions that were not effectuated in practice for reasons
discussed below. As with Section 154, these changes are intended to
ensure a uniform understanding among the States of the minimum
requirements their repeat intoxicated driver laws must meet. Revisions
to the procedures for demonstrating compliance, the penalties for
noncompliance, and the responsibilities of compliant and non-compliant
States are discussed later in the preamble as those apply also to the
Section 154 program.
B. Minimum Repeat Intoxicated Driver Law Requirements
Unlike the Section 154 program, Congress has made substantive
amendments to the requirements that a State's repeat intoxicated driver
law must meet to comply with Section 164. Many of the revisions
described in this section codify those substantive statutory changes,
as the regulations have not been updated since 2000. In other cases,
the agencies are simply improving the clarity of the regulations to
reflect longstanding application of the Federal statute since 2000.
1. Definitions (23 CFR 1275.3)
The agencies are adding definitions for ``FHWA'' and ``NHTSA'' and
eliminating the definition for ``enact and enforce,'' consistent with
the approach for 23 CFR 1270.3. The agencies are eliminating the
definitions for ``driver's motor vehicle'' and ``impoundment or
immobilization,'' as the compliance criterion to which these applied
was repealed by the FAST Act. The agencies are eliminating the
definition for ``license suspension,'' as the compliance criterion to
which it applied has been reworded, rendering the definition
superfluous. The agencies are adding a definition for ``24-7 sobriety
program'' due to FAST Act revisions to the general compliance criteria.
Because the definition of the term in the FAST Act cross-references 23
U.S.C. 405(d)(7)(A), the agencies have similarly tied the definition
here to the meaning given to it in NHTSA's Section 405 implementing
regulations (see 23 CFR 1300.23(b)). 23 CFR 1270.3(a). This
necessitates adding a reference to a ``combination of laws or
programs'' to the definition of ``repeat intoxicated driver law'' to
accommodate these 24-7 sobriety programs. Finally, the agencies are
adding a definition for ``mandatory sentence.'' As used in combination
with ``imprisonment,'' the definition is intended to ensure that repeat
offenders are in fact detained for the minimum periods specified.
Although the IFR makes no change to the definition of ``repeat
intoxicated driver,'' the agencies emphasize that a State may not
expunge an offender's prior conviction in order to exclude it from the
five-year lookback period. Any mechanism (including expungement) that
causes a State to exclude from consideration prior convictions of
driving while intoxicated or driving under the influence, when such
convictions occurred within the prior five years, generally does not
comply with Section 164.
2. Compliance Criteria (23 CFR 1275.4(a))
The substantive compliance criteria of Section 164 have been
significantly amended since their inception. This IFR updates the
compliance criteria to reflect the current law, as most recently
amended by the FAST Act. In addition, the agencies are providing
clarifications as appropriate.
a. License Sanction (23 CFR 1275.4(a)(1))
Section 164, as created by the TEA-21 Restoration Act, required all
repeat offenders to receive a minimum one-year hard license suspension
or revocation. Under the Federal implementing regulations, during the
one-year term, the offender could not be eligible for any driving
privileges, such as a restricted or hardship license. Because the
Federal implementing regulations have not been updated since 2000, this
language remained in the Code of Federal Regulations. The SAFETEA-LU
Technical Corrections Act of 2008 and MAP-21 made further changes that
were effectuated by the agencies, but that were never written into the
regulations.
The FAST Act completely rewrote the license sanction criterion in
23 U.S.C. 164(a)(5)(A) to loosen the requirements and provide for
additional compliance options for States. This IFR codifies the revised
criterion. Under today's IFR, all repeat offenders must receive one or
a combination of three license sanctions for a period of not less than
one year (365 days). States may therefore ``mix-and-match'' these
sanctions, provided that, in combination, they last for the full one
year period.
The first license sanction is a suspension of all driving
privileges. During that period, the repeat offender is not permitted to
operate any motor vehicle under any circumstances. The second license
sanction is a restriction on driving privileges that limits the
individual to operating only motor vehicles with an ignition interlock
device installed. Section 164 and the implementing regulations permit
certain limited exceptions to this license sanction, discussed later in
this preamble. The third license sanction is that the repeat offender
may only operate a motor vehicle provided the individual is
participating in, and complying with, a 24-7 sobriety program. For a
State's law or 24-7 sobriety program to comply with this requirement,
it must make clear that any participant who is kicked out of the
program must be subject to either a hard license suspension or an
ignition interlock restriction, as provided under the other two license
sanctions, for the remainder of the one year sanction period.
b. Vehicle Sanction (Repealed)
The TEA-21 Restoration Act required all repeat offenders to ``be
subject to the impoundment or immobilization of each of the
individual's motor vehicles or the installation of an ignition
interlock system on each of the motor vehicles.'' The Federal
implementing regulations further required impoundment or immobilization
to occur during the one-year license suspension, while installation of
an ignition interlock
[[Page 67162]]
device was required to occur at the conclusion of the one-year license
suspension. The FAST Act repealed this vehicle sanction. With the vast
majority of States moving to ignition interlocks as a license sanction,
the vehicle sanction requirement was largely redundant. This IFR
removes these requirements from 23 CFR 1275.4.
c. Assessment and Treatment (23 CFR 1275.4(a)(2))
Under Section 164, the State law must require that all repeat
intoxicated drivers undergo an assessment of their degree of alcohol
abuse, and it must authorize the imposition of treatment as
appropriate. An assessment is required of all repeat offenders because
it allows for a determination not only of whether an offender should
undergo treatment, but also of what type and level of treatment is
appropriate for that offender. While treatment is not required for all
repeat offenders, the State must authorize the imposition of treatment
as appropriate. Congress has not changed this criterion since its
inception, and the agencies are making no changes in this IFR.
d. Minimum Sentence (23 CFR 1275.4(a)(3))
Since the beginning of the program, Section 164 has required that
each State have a law that imposes a mandatory minimum sentence on all
repeat intoxicated drivers. For a second offense, the law must provide
for a mandatory sentence of not less than 5 days of imprisonment or 30
days of community service. For a third or subsequent offense, the law
must provide for a mandatory sentence of not less than 10 days of
imprisonment or 60 days of community service. The terms ``mandatory
sentence'' and ``imprisonment'' are defined in 23 CFR 1275.3. The FAST
Act retains these minimum sentence provisions, but allows States the
option to certify as to their ``general practice'' for incarceration in
lieu of having a compliant mandatory minimum sentence. The new
certification option is addressed in the next section regarding
exceptions.
In this IFR, the agencies are clarifying the number of hours for
the various sentences identified above that are considered equivalent
to each ``day.'' Many States provide for sentencing in terms of hours
rather than days. The agencies recognize that imprisonment and
community service function differently. While imprisonment is generally
an extended period of detainment that lasts through waking and sleeping
hours, community service is a form of labor that occurs while the
detainee is awake. A ``day'' for purposes of each of these penalties is
therefore not equivalent. NHTSA's longstanding interpretation has been
that one ``day'' of imprisonment equals 24 hours, and one ``day'' of
community service equals 8 hours (a work day). The agencies have added
corresponding hour equivalents to the minimum sentence criterion.
3. Exceptions (23 CFR 1275.4(b), 1275.5)
a. Special Exceptions (23 CFR 1275.4(b))
One of the three sanctions under the license sanction criterion
described above is restriction of the repeat offender's driving
privileges to the operation of only motor vehicles with an ignition
interlock device installed. However, the FAST Act allows two exceptions
to this restriction, which the agencies are adopting in this IFR
verbatim. (Prior to enactment of the FAST Act, neither was allowed
under the Section 164 program.) No other exceptions to a State's
ignition interlock law are permitted.
First, the FAST Act allows a repeat offender subject to an ignition
interlock restriction to operate an employer's motor vehicle in the
course and scope of employment without an ignition interlock device
installed, provided the business entity that owns the vehicle is not
owned or controlled by the individual. A State's exception must
explicitly exclude business entities owned or controlled by the repeat
offender or it will not comply with the license sanction criterion. An
exclusion for ``self-employment,'' for example, does not cover all
business entities potentially owned or controlled by a repeat offender,
and would not allow a State's exception to comply with the license
sanction criterion. Second, a State may except from its ignition
interlock law a repeat offender that is certified by a medical doctor
as being unable to provide a deep lung breath sample for analysis by an
ignition interlock device.
b. ``General Practice'' Certifications (23 CFR 1275.5)
The FAST Act amends the minimum sentence criterion to provide an
alternative compliance option. In lieu of enacting and enforcing a law
that complies with the minimum sentence criterion, a State may certify
to its ``general practice'' of incarceration. According to the FAST
Act, the State must certify for a second offender that its ``general
practice is that such an individual will be incarcerated'' and for a
third or subsequent offender that its ``general practice is that such
an individual will receive 10 days of incarceration.'' 23 U.S.C.
164(a)(5)(C)(i)-(ii). This IFR establishes the process for a State to
submit a ``general practice'' certification as an alternative means of
satisfying the minimum sentence criterion.
The IFR sets forth separate certifications for second offender
incarceration and for third and subsequent offender incarceration. This
will allow maximum flexibility to States, because it allows a State
whose laws are partly in compliance to satisfy the minimum sentence
criterion through a combination of statute and certification.
To meet the statutory standard of ``general practice,'' the
agencies have elected to require a State to certify that 75 percent of
repeat offenders are subject to mandatory incarceration. The agencies
believe this percentage is a reasonable interpretation of what would
constitute ``general practice'' in a State. Consistent with the FAST
Act requirements, the certification for a second offender does not
contain a minimum incarceration period, while that for third and
subsequent offenders specifies 10 days.
The agencies elected not to base ``general practice'' on a State's
average incarceration period for repeat offenders. That approach would
allow a State to meet the standard for second offenders if a single
offender is sentenced to any period of incarceration. For third and
subsequent offenders, lengthy prison sentences could skew the average
even if the vast majority of offenders received sentences well below 10
days. The agencies do not believe such an approach falls within the
reasonable meaning of ``general practice.''
Each certification is required to be based on data from the full
calendar year immediately preceding the date of certification. In other
words, if the State is certifying for fiscal year 2018 (which begins on
October 1, 2017), the State's ``general practice'' certification must
be based on data from the entire period of January 1, 2016 through
December 31, 2016. The certification must be signed by the Governor's
Representative for Highway Safety and must be based on personal
knowledge and other appropriate inquiry.
Because the State's ``general practice'' may change over time, the
agencies are requiring States electing this compliance option to
provide a new certification annually. Although certifications are due
by October 1 each year, States are encouraged to submit their
certification by August 15 to avoid
[[Page 67163]]
any delay in the release of funds on October 1 of that calendar year.
IV. Non-Compliance Penalties and Procedures
This section describes the penalties affecting States that do not
comply with one or both of the Section 154 and Section 164 programs. In
general, these changes merely update the regulations to reflect
amendments made by Federal statutes, such as MAP-21. The agencies are
also streamlining some of the procedures that apply to States.
A. Reservation of Funds for Non-Compliance (23 CFR 1270.6 and 1275.6)
States that fail to enact or enforce compliant open container or
repeat intoxicated driver laws by October 1 of each fiscal year will
have an amount equal to 2.5 percent of Federal-aid funds apportioned
under 23 U.S.C. 104(b)(1) and 23 U.S.C. 104(b)(2) for the National
Highway Performance Program (NHPP) and the Surface Transportation Block
Grant Program (STBG) reserved by FHWA. The penalties are separate and
distinct; a 2.5 percent penalty applies separately for each program
where non-compliance occurs. The IFR eliminates as obsolete the penalty
provisions that applied to fiscal years 2001 and 2002. In addition, it
updates the procedures to reflect the change to a reservation program
(rather than immediate transfer to a State's Section 402
apportionment), the change in the penalty amount to 2.5 percent of
Federal-aid funds (rather than 3 percent), and the change in the funds
from which the penalty is reserved to those apportioned under 23 U.S.C.
104(b)(1) and (b)(2) (rather than 23 U.S.C. 104(b)(1), (b)(3), and
(b)(4)), which all resulted from MAP-21.
The initial reservation of Federal-aid funds by FHWA for
noncompliant States will be on a proportional basis from each of the
apportionments under Sections 104(b)(1) and (b)(2). Each fiscal year,
the State's Department of Transportation must inform FHWA, through the
appropriate Division Administrator, within 30 days if it wishes to
change the derivation of the total penalty amounts from the NHPP and
STBG apportionments from the default proportional amounts. Prior to
this IFR, States were required to submit this request by October 30.
The change in the IFR ensures that States always receive 30 days to
process this request in the event issuance of the notice of
apportionments is delayed.
B. Use of Reserved Funds (23 CFR 1270.7 and 1275.7)
The agencies have reorganized 23 CFR 1270.7 and 1275.7 to improve
clarity and better align them with the order of procedures for States.
Not later than 60 days after the penalty funds are reserved, the
Governor's Representative for Highway Safety and the Chief Executive
Officer of the State's Department of Transportation must jointly
identify, in writing, to the appropriate NHTSA Regional Administrator
and FHWA Division Administrator how the penalty funds will be
distributed for use among alcohol-impaired driving programs and highway
safety improvement program (HSIP) eligible activities under 23 U.S.C.
148. The primary change in the IFR is to reflect the change in
available uses from hazard elimination to HSIP eligible activities,
which resulted from Federal legislation.
The penalty funds will continue to be reserved until the State
provides this distribution request. As soon as practicable after its
receipt by the agencies, the funds will either be transferred to the
State's Section 402 apportionment for alcohol-impaired driving programs
or released to the State Department of Transportation for HSIP eligible
activities, pursuant to the changes in MAP-21. The Federal statutes do
not authorize additional transfers between the Section 402 and HSIP
programs. As a result, the IFR adds that once penalty funds have been
transferred or released for the fiscal year, States are not able to
revise their request.
The allowable uses for funds (specifically, for alcohol-impaired
driving programs and HSIP eligible activities) are described in the
implementing regulations and updated only to reflect the switch from
hazard elimination to HSIP, pursuant to Federal legislation. Under both
programs, the Federal share of the cost of any project carried out with
penalty funds remains 100 percent.
Section 154 and 164 penalty funds are transferred or released from
the State's apportionment of contract authority under 23 U.S.C.
104(b)(1) and 23 U.S.C. 104(b)(2). The contract authority is
transferred or released with accompanying obligation authority, which
is the maximum amount the State can obligate to eligible projects. If
the State elects to transfer funds to its Section 402 apportionment for
alcohol-impaired driving programs, the obligation limitation is
provided based on a ratio specified in 23 CFR 1270.7 and 1275.7, which
comes directly from 23 U.S.C. 154(c)(6) and 23 U.S.C. 164(b)(6). The
IFR makes technical corrections and amendments to improve clarity in
these provisions of the Federal implementing regulations, but they do
not result in any change in how the ratio is calculated.
C. Procedures Affecting States in Noncompliance (23 CFR 1270.8 and
1275.8)
Under the original Federal implementing regulations, the agencies
intended for States to be notified of their compliance status in FHWA's
advance notice of apportionment, normally issued ninety days prior to
final apportionment. Noncompliant States were then granted 30 days to
submit documentation showing why they were in compliance. The agencies
would then issue a final determination as part of the final
notification of apportionments, which normally occurs on October 1 of
each year. While the agencies have strived to notify States of pending
changes in their compliance status in the advance notice of
apportionment whenever possible, the Federal statute requires formal
compliance determinations to be based on the State's law enacted and
enforced on October 1 of each fiscal year. As a result, State
compliance status may change up to that date, making this system
unworkable in many cases. The IFR revises 23 CFR 1270.8 and 1275.8 to
better reflect the actual practice the agencies have undertaken to give
States full opportunity to present additional documentation (with some
minor changes to streamline the process for States).
Each State determined to be noncompliant with 23 U.S.C. 154 or 23
U.S.C. 164 receives notice of its compliance status and the funds being
reserved from apportionment as part of the final certification of
apportionments required under 23 U.S.C. 104(e), which normally occurs
on October 1 of each fiscal year. All States will be afforded 30 days
from the date the final notice of apportionments is issued to submit
additional documentation showing why they are in compliance. For the
Section 164 program, this documentation may include a ``general
practice'' certification. Previously, only newly noncompliant States
were afforded 30 days to submit additional documentation demonstrating
compliance.
While the agencies consider any additional documentation provided
by the State, the reservation will remain in place on the State's
affected funds. However, the State must still provide the requests
regarding the derivation and distribution of funds referenced in
Sections A and B (within 30 and 60 days, respectively) while the
documentation is reviewed to expedite the distribution of funds. If the
agencies
[[Page 67164]]
affirm the noncompliance determination, the State will be notified of
the decision and the affected funds will be processed in accordance
with the requests provided by the State. If the agencies reverse the
noncompliance determination, the funds will be released from
reservation and restored to the State's NHPP and STBG accounts. These
procedures are intended to preserve the maximum possible flexibility
for States, while ensuring that the agencies meet their statutory
obligations.
D. States' Responsibilities Regarding Compliance (23 CFR 1270.9 and
1275.9)
Under the original Federal implementing regulations, if a State
enacted a newly compliant law, the State was required to submit to the
NHTSA Regional Office a copy of the law along with a certification
meeting the requirements of the applicable Federal regulation (23 CFR
1270.5 or 1275.5, prior to amendment by this IFR). States were required
to promptly submit an amendment or supplement to their certifications
if their law changed or they ceased to enforce their law.
The agencies are eliminating this certification requirement in this
IFR, thereby reducing the paperwork burden on the States. In practice,
few States submitted certifications, and the agencies found them to be
of limited value in enforcement. Instead, this IFR adds a new section
for each of the programs (23 CFR 1270.9 and 1275.9) related to States'
responsibilities regarding compliance. First, these sections make clear
that it is the State's sole responsibility to ensure compliance with
the Section 154 and 164 programs. While NHTSA conducts an annual review
of State laws to assess whether legislation has affected their
compliance status, this does not occur until late in the fiscal year,
often after State legislative sessions have ended. NHTSA cannot and
does not actively monitor all pending legislation in all States.
Instead, each State Highway Safety Office and State Department of
Transportation should actively monitor their legislatures for potential
amendments to their open container and repeat intoxicated driver laws.
Second, the agencies have added a provision indicating that States
must promptly notify the appropriate NHTSA Regional Administrator in
writing of any change or change in enforcement to the State's open
container or repeat intoxicated driver law, identifying the specific
change(s). This replaces the requirement to submit a supplement or
amendment to the State's certification. To the extent appropriate,
NHTSA will conduct a preliminary review of the State's amended law and
identify to the State any potential compliance issues resulting from
the change. Absent early notification from the State, NHTSA may not
identify a potential compliance issue until later in the fiscal year,
often after the State's legislative session has ended.
V. Notice and Comment, Effective Date, and Request for Comments
The Administrative Procedure Act authorizes agencies to dispense
with certain procedures for rules when they find ``good cause'' to do
so. The agencies must ensure that States receive instructions that are
important to upcoming compliance determinations to be made on October
1, 2016, as the changes in the FAST Act are effective on that date. In
light of the short time frame for implementing the FAST Act, the
agencies find good cause to dispense with the notice and comment
requirements and the 30-day delayed effective date requirement.
Under Section 553(b)(B), the requirements of notice and comment do
not apply when the agency, for good cause, finds that those procedures
are ``impracticable, unnecessary, or contrary to public interest.''
Because of the short time frame for implementing the FAST Act, the
agencies find it impracticable to implement the new compliance criteria
with notice and comment for FY 2017. However, the agencies invite
public comment on all aspects of this IFR. The agencies will consider
and address comments in a final rule, which the agencies commit to
publishing during the first quarter of calendar year 2017, and which
will be effective beginning with FY 2018.
Under Section 553(d), the agencies may make a rule effective
immediately, avoiding the 30-day delayed effective date requirement for
good cause. We have determined that it is in the public interest for
this IFR to have an immediate effective date. The agencies are
expediting this rulemaking to provide instructions that are important
to upcoming compliance determinations to be made on October 1, 2016,
such as those related to the new ``general practice'' certifications.
States also need clarification for the processes related to
noncompliance.
For these reasons, the agencies are issuing this rulemaking as an
interim final rule that will be effective immediately. As an interim
final rule, this regulation is fully in effect and binding upon its
effective date. No further regulatory action by the agencies is
necessary to make this rule effective. However, in order to benefit
from comments that interested parties and the public may have, the
agencies are requesting that comments be submitted to the docket for
this notice.
Comments received in response to this notice will be considered by
the agencies. The agencies will then issue a final rule, including any
appropriate amendments based on those comments. The notice for that
final rule will respond to substantive comments received.
VI. Regulatory Analyses and Notices
A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563, and DOT Regulatory Policies and Procedures
The agencies have considered the impact of this rulemaking action
under Executive Order 12866, Executive Order 13563, and the Department
of Transportation's regulatory policies and procedures. This rulemaking
document was not reviewed under Executive Order 12866 or Executive
Order 13563. This rule will only affect the compliance status of a very
small handful of States and will therefore affect far less than $100
million annually. Whether a State chooses to enact a compliant law or
make a certification is dependent on many variables, and cannot be
linked with specificity to the issuance of this rule. States choose
whether to enact and enforce compliant laws, thereby complying with the
programs. If a State chooses not to enact and enforce a conforming law,
its funds are conditioned, but not withheld. Accordingly, the total
amount of funds provided to each State does not change. The costs to
States associated with this rule are minimal (e.g., passing and
enforcing alcohol impaired driving laws) and are expected to be offset
by resulting highway safety benefits. Therefore, this rulemaking has
been determined to be not ``significant'' under the Department of
Transportation's regulatory policies and procedures and the policies of
the Office of Management and Budget.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601 et seq.)
requires agencies to evaluate the potential effects of their proposed
and final rules on small businesses, small organizations, and small
governmental jurisdictions. Section 605 of the RFA allows an agency to
certify a rule, in lieu of preparing an analysis, if the proposed
rulemaking is not expected to have a significant economic impact on a
substantial number of small entities.
[[Page 67165]]
The Small Business Regulatory Enforcement Fairness Act (SBREFA) amended
the RFA to require Federal agencies to provide a statement of the
factual basis for certifying that an action would not have a
significant economic impact on a substantial number of small entities.
This IFR is a rulemaking that will update the Section 154 and
Section 164 regulations based on recent Federal legislation. The
requirements of these programs only affect State governments, which are
not considered to be small entities as that term is defined by the RFA.
Therefore, we certify that this action will not have a significant
impact on a substantial number of small entities and find that the
preparation of a Regulatory Flexibility Analysis is unnecessary.
C. Executive Order 13132 (Federalism)
Executive Order 13132 on ``Federalism'' requires the agencies to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' 64 FR 43255 (August 10, 1999).
``Policies that have federalism implications'' are defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Under
Executive Order 13132, an agency may not issue a regulation with
Federalism implications that imposes substantial direct compliance
costs and that is not required by statute unless the Federal government
provides the funds necessary to pay the direct compliance costs
incurred by State and local governments or the agency consults with
State and local governments in the process of developing the proposed
regulation. An agency also may not issue a regulation with Federalism
implications that preempts a State law without consulting with State
and local officials.
The agencies have analyzed this rulemaking action in accordance
with the principles and criteria set forth in Executive Order 13132,
and have determined that this IFR would not have sufficient Federalism
implications as defined in the order to warrant formal consultation
with State and local officials or the preparation of a federalism
summary impact statement. However, the agencies continue to engage with
State representatives regarding general implementation of the FAST Act,
including these programs, and expects to continue these informal
dialogues.
D. Executive Order 12988 (Civil Justice Reform)
Pursuant to Executive Order 12988 (61 FR 4729 (February 7, 1996)),
``Civil Justice Reform,'' the agencies have considered whether this
rule would have any retroactive effect. We conclude that it would not
have any retroactive or preemptive effect, and judicial review of it
may be obtained pursuant to 5 U.S.C. 702. That section does not require
that a petition for reconsideration be filed prior to seeking judicial
review. This action meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.
E. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget (OMB) for each collection of information they
conduct, sponsor, or require through regulations. This rulemaking would
not establish any new information collection requirements.
F. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires
agencies to prepare a written assessment of the costs, benefits, and
other effects of proposed or final rules that include a Federal mandate
likely to result in expenditures by State, local or tribal governments,
in the aggregate, or by the private sector, of more than $100 million
annually (adjusted annually for inflation with base year of 1995). This
IFR would not meet the definition of a Federal mandate because the
resulting annual State expenditures to comply with the programs would
not exceed the minimum threshold.
G. National Environmental Policy Act
NHTSA has considered the impacts of this rulemaking action for the
purposes of the National Environmental Policy Act of 1969 (NEPA) (42
U.S.C. 4321-4347). The agency has determined that this IFR would not
have a significant impact on the quality of the human environment. FHWA
has analyzed this action for the purposes of NEPA and has determined
that it would not have any effect on the quality of the environment and
meets the criteria for the categorical exclusion at 23 CFR
771.117(c)(20).
H. Executive Order 13211
Executive Order 13211 (66 FR 28355, May 18, 2001) applies to any
rulemaking that: (1) Is determined to be economically significant as
defined under Executive Order 12866, and is likely to have a
significantly adverse effect on the supply of, distribution of, or use
of energy; or (2) that is designated by the Administrator of the Office
of Information and Regulatory Affairs as a significant energy action.
This rulemaking is not likely to have a significantly adverse effect on
the supply of, distribution of, or use of energy. This rulemaking has
not been designated as a significant energy action. Accordingly, this
rulemaking is not subject to Executive Order 13211.
I. Executive Order 13175 (Consultation and Coordination With Indian
Tribes)
The agencies have analyzed this IFR under Executive Order 13175,
and have determined that today's action would not have a substantial
direct effect on one or more Indian tribes, would not impose
substantial direct compliance costs on Indian tribal governments, and
would not preempt tribal law. Therefore, a tribal summary impact
statement is not required.
J. Plain Language
Executive Order 12866 and the President's memorandum of June 1,
1998, require each agency to write all rules in plain language.
Application of the principles of plain language includes consideration
of the following questions:
Have we organized the material to suit the public's needs?
Are the requirements in the rule clearly stated?
Does the rule contain technical language or jargon that
isn't clear?
Would a different format (grouping and order of sections,
use of headings, paragraphing) make the rule easier to understand?
Would more (but shorter) sections be better?
Could we improve clarity by adding tables, lists, or
diagrams?
What else could we do to make the rule easier to
understand?
If you have any responses to these questions, please include them in
your comments on this IFR.
K. Regulatory Identifier Number (RIN)
The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Federal Regulations. The Regulatory Information Service Center
publishes the Unified
[[Page 67166]]
Agenda in or about April and October of each year. You may use the RIN
contained in the heading at the beginning of this document to find this
action in the Unified Agenda.
L. Privacy Act
Please note that anyone is able to search the electronic form of
all comments received into any of our dockets by the name of the
individual submitting the comment (or signing the comment, if submitted
on behalf of an association, business, labor union, etc.). You may
review DOT's complete Privacy Act Statement in the Federal Register
published on April 11, 2000 (65 FR 19477) or you may visit http://dms.dot.gov.
VII. Public Participation
How do I prepare and submit comments?
Your comments must be written and in English. To ensure that your
comments are correctly filed in the Docket, please include the docket
number of this document in your comments.
Your comments must not be more than 15 pages long. (49 CFR 553.21).
We established this limit to encourage you to write your primary
comments in a concise fashion. However, you may attach necessary
additional documents to your comments. There is no limit on the length
of the attachments.
Comments may also be submitted to the docket electronically by
logging onto the Docket Management System Web site at http://www.regulations.gov. Follow the online instructions for submitting
comments.
Please note that pursuant to the Data Quality Act, in order for
substantive data to be relied upon and used by the agencies, it must
meet the information quality standards set forth in the OMB and DOT
Data Quality Act guidelines. Accordingly, we encourage you to consult
the guidelines in preparing your comments. OMB's guidelines may be
accessed at http://www.whitehouse.gov/omb/fedreg/reproducible.html.
How can I be sure that my comments were received?
If you wish Docket Management to notify you upon its receipt of
your comments, enclose a self-addressed, stamped postcard in the
envelope containing your comments. Upon receiving your comments, Docket
Management will return the postcard by mail.
How do I submit confidential business information?
If you wish to submit any information under a claim of
confidentiality, you should submit three copies of your complete
submission, including the information you claim to be confidential
business information, to the Chief Counsel, NHTSA, at the address given
above under FOR FURTHER INFORMATION CONTACT. In addition, you should
submit a copy, from which you have deleted the claimed confidential
business information, to the docket at the address given above under
ADDRESSES. When you send a comment containing information claimed to be
confidential business information, you should include a cover letter
setting forth the information specified in our confidential business
information regulation. (49 CFR part 512.)
Will the agencies consider late comments?
We will consider all comments received before the close of business
on the comment closing date indicated above under DATES. To the extent
possible, we will also consider comments that the docket receives after
that date. If the docket receives a comment too late for us to consider
in developing a final rule (assuming that one is issued), we will
consider that comment as an informal suggestion for future rulemaking
action.
How can I read the comments submitted by other people?
You may read the comments received by the docket at the address
given above under ADDRESSES. The hours of the docket are indicated
above in the same location. You may also see the comments on the
Internet. To read the comments on the Internet, go to http://www.regulations.gov. Follow the online instructions for accessing the
dockets.
Please note that even after the comment closing date, we will
continue to file relevant information in the docket as it becomes
available. Further, some people may submit late comments. Accordingly,
we recommend that you periodically check the Docket for new material.
You can arrange with the docket to be notified when others file
comments in the docket. See http://www.regulations.gov for more
information.
Authority: 23 U.S.C. 154 and 164; delegation of authority at 49
CFR 1.85 and 1.95.
List of Subjects in 23 CFR Parts 1270 and 1275
Reservation and transfer programs--Transportation, Highway safety,
Intergovernmental relations, Alcohol abuse.
For the reasons discussed in the preamble, under the authority of
23 U.S.C. 154 and 164, the National Highway Traffic Safety
Administration and the Federal Highway Administration amend 23 CFR
Chapter II as follows:
0
1. Revise part 1270 to read as follows:
PART 1270--OPEN CONTAINER LAWS
Sec.
1270.1 Scope.
1270.2 Purpose.
1270.3 Definitions.
1270.4 Compliance criteria.
1270.5 [Reserved].
1270.6 Reservation of funds.
1270.7 Use of reserved funds.
1270.8 Procedures affecting States in noncompliance.
1270.9 States' responsibilities regarding compliance.
Authority: 23 U.S.C. 154; delegation of authority at 49 CFR 1.85
and 1.95.
Sec. 1270.1 Scope.
This part prescribes the requirements necessary to implement
Section 154 of Title 23 of the United States Code which encourages
States to enact and enforce open container laws.
Sec. 1270.2 Purpose.
The purpose of this part is to specify the steps that States must
take to avoid the reservation and transfer of Federal-aid highway funds
for noncompliance with 23 U.S.C. 154.
Sec. 1270.3 Definitions.
As used in this part:
(a) Alcoholic beverage means:
(1) Beer, ale, porter, stout, and other similar fermented beverages
(including sake or similar products) of any name or description
containing one-half of 1 percent or more of alcohol by volume, brewed
or produced from malt, wholly or in part, or from any substitute
therefor;
(2) Wine of not less than one-half of 1 per centum of alcohol by
volume; or
(3) Distilled spirits which is that substance known as ethyl
alcohol, ethanol, or spirits of wine in any form (including all
dilutions and mixtures thereof from whatever source or by whatever
process produced).
(b) FHWA means the Federal Highway Administration.
(c) Motor vehicle means a vehicle driven or drawn by mechanical
power and manufactured primarily for use on public highways, but does
not include a vehicle operated solely on a rail or rails.
(d) NHTSA means the National Highway Traffic Safety Administration.
[[Page 67167]]
(e) Open alcoholic beverage container means any bottle, can, or
other receptacle that:
(1) Contains any amount of alcoholic beverage; and
(2) Is open or has a broken seal or the contents of which are
partially removed (regardless of whether it has been closed or
resealed).
(f) Open container law means a State law or combination of laws
that meets the minimum requirements specified in Sec. 1270.4.
(g) Passenger area means the area designed to seat the driver and
passengers while the motor vehicle is in operation and any area that is
readily accessible to the driver or a passenger while in their seating
positions, including the glove compartment.
(h) Public highway or right-of-way of a public highway means the
width between and immediately adjacent to the boundary lines of every
way publicly maintained when any part thereof is open to the use of the
public for purposes of vehicular travel; inclusion of the roadway and
shoulders is sufficient.
(i) State means any of the 50 States, the District of Columbia, or
the Commonwealth of Puerto Rico.
Sec. 1270.4 Compliance criteria.
(a) To avoid the reservation of funds specified in Sec. 1270.6, a
State must enact and enforce an open container law that prohibits the
possession of any open alcoholic beverage container, and the
consumption of any alcoholic beverage, in the passenger area of any
motor vehicle (including possession or consumption by the driver of the
vehicle) located on a public highway, or the right-of-way of a public
highway, in the State.
(b) The law must apply to:
(1) The possession of any open alcoholic beverage container and the
consumption of any alcoholic beverage;
(2) The passenger area of any motor vehicle;
(3) All alcoholic beverages;
(4) All occupants of a motor vehicle; and
(5) All motor vehicles located on a public highway or the right-of-
way of a public highway.
(c) The law must provide for primary enforcement.
(d) Exceptions. (1) If a State has in effect a law that makes
unlawful the possession of any open alcoholic beverage container and
the consumption of any alcoholic beverage in the passenger area of any
motor vehicle, but permits the possession of an open alcoholic beverage
container in a locked container (such as a locked glove compartment),
or, in a motor vehicle that is not equipped with a trunk, either behind
the last upright seat or in an area not normally occupied by the driver
or a passenger, the State will be deemed to have in effect a law that
applies to the passenger area of any vehicle, as provided in paragraph
(b)(2) of this section.
(2) If a State has in effect a law that makes unlawful the
possession of any open alcoholic beverage container and the consumption
of any alcoholic beverage by the driver (but not by a passenger) in the
passenger area of a motor vehicle designed, maintained, or used
primarily for the transportation of persons for compensation, or in the
living quarters of a house coach or house trailer, the State shall be
deemed to have in effect a law that applies to all occupants of a motor
vehicle with respect to such motor vehicles, as provided in paragraph
(b)(4) of this section.
Sec. 1270.5 [Reserved].
Sec. 1270.6 Reservation of funds.
(a) On October 1 of each fiscal year, if a State has not enacted or
is not enforcing a law that complies with Sec. 1270.4, FHWA will
reserve an amount equal to 2.5 percent of the funds apportioned to the
State for that fiscal year under each of 23 U.S.C. 104(b)(1) and
(b)(2).
(b) The reservation of funds will be made based on proportionate
amounts from each of the apportionments under 23 U.S.C. 104(b)(1) and
(b)(2). The State's Department of Transportation will have 30 days from
the date the funds are reserved under this section to notify FHWA,
through the appropriate Division Administrator, if it would like to
change the distribution of the amounts reserved between 23 U.S.C.
104(b)(1) and (b)(2).
Sec. 1270.7 Use of reserved funds.
(a) Not later than 60 days after the funds are reserved under Sec.
1270.6, the Governor's Representative for Highway Safety and the Chief
Executive Officer of the State's Department of Transportation for each
State must jointly identify, in writing to the appropriate NHTSA
Regional Administrator and FHWA Division Administrator, how the funds
will be programmed between alcohol-impaired driving programs under
paragraph (c) of this section and highway safety improvement program
activities under paragraph (d) of this section. Funds will remain
reserved until this notification is provided by the State.
(b) As soon as practicable after NHTSA and FHWA receive the
notification described in paragraph (a) of this section, the Secretary
will:
(1) Transfer the reserved funds identified by the State for
alcohol-impaired driving programs under paragraph (c) of this section
to the apportionment of the State under 23 U.S.C. 402; and
(2) Release the reserved funds identified by the State for highway
safety improvement program activities under paragraph (d) of this
section to the State Department of Transportation.
(c) Any funds transferred under paragraph (b)(1) of this section
shall be--
(1) Used for approved projects for alcohol-impaired driving
countermeasures; or
(2) Directed to State and local law enforcement agencies for
enforcement of laws prohibiting driving while intoxicated or driving
under the influence and other related laws (including regulations),
including the purchase of equipment, the training of officers, and the
use of additional personnel for specific alcohol-impaired driving
countermeasures, dedicated to enforcement of the laws (including
regulations).
(d) Any funds released under paragraph (b)(2) of this section shall
be used for highway safety improvement program activities eligible
under 23 U.S.C. 148.
(e) Once the funds have been transferred or released under
paragraph (b) of this section, the State may not revise the
notification described in paragraph (a) of this section identifying how
the funds will be programmed between alcohol-impaired driving programs
and highway safety improvement program activities.
(f) The Federal share of the cost of any project carried out with
the funds transferred or released under paragraph (b) of this section
is 100 percent.
(g)(1) If any funds are transferred under paragraph (b)(1) of this
section to the apportionment of a State under Section 402 for a fiscal
year, the amount of obligation authority determined under paragraph
(g)(2) of this section shall be transferred for carrying out projects
described in paragraph (c) of this section.
(2) The obligation authority referred to in paragraph (g)(1) of
this section shall be transferred from the obligation authority
distributed for the fiscal year to the State for Federal-aid highways
and highway safety construction programs, and the amount shall be
determined by multiplying:
(i) The amount of funds transferred under paragraph (b)(1) of this
section to
[[Page 67168]]
the apportionment of the State under Section 402 for the fiscal year;
by
(ii) The ratio that:
(A) The amount of obligation authority distributed for the fiscal
year to the State for Federal-aid highways and highway safety
construction programs; bears to
(B) The total of the sums apportioned to the State for Federal-aid
highways and highway safety construction programs (excluding sums not
subject to any obligation limitation) for the fiscal year.
(h) Notwithstanding any other provision of law, no limitation on
the total obligations for highway safety programs under Section 402
shall apply to funds transferred under paragraph (b)(1) of this
section.
Sec. 1270.8 Procedures affecting States in noncompliance.
(a) Each fiscal year, each State determined to be in noncompliance
with 23 U.S.C. 154 and this part will be advised of the funds reserved
from apportionment under Sec. 1270.6 in the notice of apportionments
required under 23 U.S.C. 104(e), which normally occurs on October 1.
(b) Each State whose funds are reserved under Sec. 1270.6 will be
afforded 30 days from the date of issuance of the notice of
apportionments described in paragraph (a) of this section to submit
documentation showing why it is in compliance. Documentation must be
submitted to the appropriate NHTSA Regional Administrator. If such
documentation is provided, a reservation will remain in place on the
State's affected funds while the agencies consider the information. If
the agencies affirm the noncompliance determination, the State will be
notified of the decision and the affected funds will be processed in
accordance with the requests regarding the derivation and distribution
of funds provided by the State as required by Sec. Sec. 1270.6(b) and
1270.7(a).
Sec. 1270.9 States' responsibilities regarding compliance.
(a) States are responsible for ensuring compliance with 23 U.S.C.
154 and this part.
(b) A State that has been determined to be in compliance with the
requirements of 23 U.S.C. 154 and this part must promptly notify the
appropriate NHTSA Regional Administrator in writing of any change or
change in enforcement of the State's open container law, identifying
the specific change(s).
0
2. Revise part 1275 to read as follows:
PART 1275--REPEAT INTOXICATED DRIVER LAWS
Sec.
1275.1 Scope.
1275.2 Purpose.
1275.3 Definitions.
1275.4 Compliance criteria.
1275.5 ``General practice'' certification option.
1275.6 Reservation of funds.
1275.7 Use of reserved funds.
1275.8 Procedures affecting States in noncompliance.
1275.9 States' responsibilities regarding compliance.
Authority: 23 U.S.C. 164; delegation of authority at 49 CFR 1.85
and 1.95.
Sec. 1275.1 Scope.
This part prescribes the requirements necessary to implement
Section 164 of Title 23, United States Code, which encourages States to
enact and enforce repeat intoxicated driver laws.
Sec. 1275.2 Purpose.
The purpose of this part is to specify the steps that States must
take to avoid the reservation and transfer of Federal-aid highway funds
for noncompliance with 23 U.S.C. 164.
Sec. 1275.3 Definitions.
As used in this part:
(a) 24-7 sobriety program has the meaning given the term in Sec.
1300.23(b) of this title.
(b) Alcohol concentration means grams of alcohol per 100
milliliters of blood or grams of alcohol per 210 liters of breath.
(c) Driving while intoxicated means driving or being in actual
physical control of a motor vehicle while having an alcohol
concentration above the permitted limit as established by each State,
or an equivalent non-BAC intoxicated driving offense.
(d) Driving under the influence has the same meaning as ``driving
while intoxicated.''
(e) FHWA means the Federal Highway Administration.
(f) Ignition interlock system means a State-certified system
designed to prevent drivers from starting their car when their breath
alcohol concentration is at or above a preset level.
(g) Imprisonment means confinement in a jail, minimum security
facility, community corrections facility, house arrest with electronic
monitoring, inpatient rehabilitation or treatment center, or other
facility, provided the individual under confinement is in fact being
detained.
(h) Mandatory sentence means a sentence that cannot be waived,
suspended, or otherwise reduced by the State.
(i) Motor vehicle means a vehicle driven or drawn by mechanical
power and manufactured primarily for use on public highways, but does
not include a vehicle operated solely on a rail line or a commercial
vehicle.
(j) NHTSA means the National Highway Traffic Safety Administration.
(k) Repeat intoxicated driver means a person who has been convicted
of driving while intoxicated or driving under the influence of alcohol
more than once in any five-year period.
(l) Repeat intoxicated driver law means a State law or combination
of laws or programs that impose the minimum penalties specified in
Sec. 1275.4 for all repeat intoxicated drivers.
(m) State means any of the 50 States, the District of Columbia or
the Commonwealth of Puerto Rico.
Sec. 1275.4 Compliance criteria.
(a) To avoid the reservation of funds specified in Sec. 1275.6, a
State must enact and enforce a repeat intoxicated driver law that
establishes, as a minimum penalty, that all repeat intoxicated drivers:
(1) Receive, for a period of not less than one year, one or more of
the following penalties:
(i) A suspension of all driving privileges;
(ii) A restriction on driving privileges that limits the individual
to operating only motor vehicles with an ignition interlock device
installed, unless a special exception described in paragraph (b) of
this section applies; or
(iii) A restriction on driving privileges that limits the
individual to operating motor vehicles only if participating in, and
complying with, a 24-7 sobriety program;
(2) Receive an assessment of their degree of alcohol abuse, and
treatment as appropriate; and
(3) Except as provided in Sec. 1275.5, receive a mandatory
sentence of--
(i) Not less than five days (120 hours) of imprisonment or 30 days
(240 hours) of community service for a second offense; and
(ii) Not less than ten days (240 hours) of imprisonment or 60 days
(480 hours) of community service for a third or subsequent offense.
(b) Special exceptions. As used in paragraph (a)(1)(ii) of this
section, special exception means an exception under a State alcohol-
ignition interlock law for the following circumstances only:
(1) The individual is required to operate an employer's motor
vehicle in the course and scope of employment and the business entity
that owns the
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vehicle is not owned or controlled by the individual; or
(2) The individual is certified by a medical doctor as being unable
to provide a deep lung breath sample for analysis by an ignition
interlock device.
Sec. 1275.5 ``General practice'' certification option.
(a) Notwithstanding Sec. 1275.4(a)(3), a State that otherwise
meets the requirements of Sec. 1275.4 may comply with 23 U.S.C. 164
and this part based on the State's ``general practice'' for
incarceration. A State electing this option shall--
(1) If the State law does not comply with the requirements of Sec.
1275.4(a)(3)(i), submit the following certification signed by the
Governor's Representative for Highway Safety:
I, [Name], Governor's Representative for Highway Safety, certify
that, in [State name], at least 75 percent of repeat intoxicated
drivers receive a mandatory sentence of imprisonment for a second
offense, as those terms are defined in 23 CFR 1275.3. This
certification is based on data from the period of twelve consecutive
months of the calendar year immediately preceding the date of this
certification. I sign this certification based on personal knowledge
and other appropriate inquiry. [Signature of Governor's
Representative for Highway Safety] [Date of signature]
(2) If the State law does not comply with the requirements of Sec.
1275.4(a)(3)(ii), submit the following certification signed by the
Governor's Representative for Highway Safety:
I, [Name], Governor's Representative for Highway Safety, certify
that, in [State name], at least 75 percent of repeat intoxicated
drivers receive a mandatory sentence of not less than ten days (240
hours) of imprisonment for a third or subsequent offense, as those
terms are defined in 23 CFR 1275.3. This certification is based on
data from the period of twelve consecutive months of the calendar
year immediately preceding the date of this certification. I sign
this certification based on personal knowledge and other appropriate
inquiry. [Signature of Governor's Representative for Highway Safety]
[Date of signature]
(b) A State electing the option under this section must submit a
new certification to the appropriate NHTSA Regional Administrator by
not later than October 1 of each fiscal year to avoid the reservation
of funds specified in Sec. 1275.6. The State is encouraged to submit
the certification by August 15 to avoid any delay in release of funds
on October 1 of that calendar year while NHTSA evaluates its
certification.
Sec. 1275.6 Reservation of funds.
(a) On October 1 of each fiscal year, if a State has not enacted or
is not enforcing a law that complies with Sec. 1275.4, FHWA will
reserve an amount equal to 2.5 percent of the funds apportioned to the
State for that fiscal year under each of 23 U.S.C. 104(b)(1) and
(b)(2).
(b) The reservation of funds will be made based on proportionate
amounts from each of the apportionments under 23 U.S.C. 104(b)(1) and
(b)(2). The State's Department of Transportation will have 30 days from
the date the funds are reserved under this section to notify FHWA,
through the appropriate Division Administrator, if it would like to
change the distribution of the amounts reserved between 23 U.S.C.
104(b)(1) and (b)(2).
Sec. 1275.7 Use of reserved funds.
(a) Not later than 60 days after the funds are reserved under Sec.
1275.6, the Governor's Representative for Highway Safety and the Chief
Executive Officer of the State's Department of Transportation for each
State must jointly identify, in writing to the appropriate NHTSA
Regional Administrator and FHWA Division Administrator, how the funds
will be programmed between alcohol-impaired driving programs under
paragraph (c) of this section and highway safety improvement program
activities under paragraph (d) of this section. Funds will remain
reserved until this notification is provided by the State.
(b) As soon as practicable after NHTSA and FHWA receive the
notification described in paragraph (a) of this section, the Secretary
will:
(1) Transfer the reserved funds identified by the State for
alcohol-impaired driving programs under paragraph (c) of this section
to the apportionment of the State under 23 U.S.C. 402; and
(2) Release the reserved funds identified by the State for highway
safety improvement program activities under paragraph (d) of this
section to the State Department of Transportation.
(c) Any funds transferred under paragraph (b)(1) of this section
shall be--
(1) Used for approved projects for alcohol-impaired driving
countermeasures; or
(2) Directed to State and local law enforcement agencies for
enforcement of laws prohibiting driving while intoxicated or driving
under the influence and other related laws (including regulations),
including the purchase of equipment, the training of officers, and the
use of additional personnel for specific alcohol-impaired driving
countermeasures, dedicated to enforcement of the laws (including
regulations).
(d) Any funds released under paragraph (b)(2) of this section shall
be used for highway safety improvement program activities eligible
under 23 U.S.C. 148.
(e) Once the funds have been transferred or released under
paragraph (b) of this section, the State may not revise the
notification described in paragraph (a) of this section identifying how
the funds will be programmed between alcohol-impaired driving programs
and highway safety improvement program activities.
(f) The Federal share of the cost of any project carried out with
the funds transferred or released under paragraph (b) of this section
is 100 percent.
(g)(1) If any funds are transferred under paragraph (b)(1) of this
section to the apportionment of a State under Section 402 for a fiscal
year, the amount of obligation authority determined under paragraph
(g)(2) of this section shall be transferred for carrying out projects
described in paragraph (c) of this section.
(2) The obligation authority referred to in paragraph (g)(1) of
this section shall be transferred from the obligation authority
distributed for the fiscal year to the State for Federal-aid highways
and highway safety construction programs, and the amount shall be
determined by multiplying:
(i) The amount of funds transferred under paragraph (b)(1) of this
section to the apportionment of the State under Section 402 for the
fiscal year; by
(ii) The ratio that:
(A) The amount of obligation authority distributed for the fiscal
year to the State for Federal-aid highways and highway safety
construction programs; bears to
(B) The total of the sums apportioned to the State for Federal-aid
highways and highway safety construction programs (excluding sums not
subject to any obligation limitation) for the fiscal year.
(h) Notwithstanding any other provision of law, no limitation on
the total obligations for highway safety programs under Section 402
shall apply to funds transferred under paragraph (b)(1) of this
section.
Sec. 1275.8 Procedures affecting States in noncompliance.
(a) Each fiscal year, each State determined to be in noncompliance
with 23 U.S.C. 164 and this part will be advised of the funds reserved
from apportionment under Sec. 1275.6 in the notice of apportionments
required
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under 23 U.S.C. 104(e), which normally occurs on October 1.
(b) Each State whose funds are reserved under Sec. 1275.6 will be
afforded 30 days from the date of issuance of the notice of
apportionments described in paragraph (a) of this section to submit
documentation showing why it is in compliance (which may include a
``general practice'' certification under Sec. 1275.5). Documentation
must be submitted to the appropriate NHTSA Regional Administrator. If
such documentation is provided, a reservation will remain in place on
the State's affected funds while the agencies consider the information.
If the agencies affirm the noncompliance determination, the State will
be notified of the decision and the affected funds will be processed in
accordance with the requests regarding the derivation and distribution
of funds provided by the State as required by Sec. Sec. 1275.6(b) and
1275.7(a).
Sec. 1275.9 State' responsibilities regarding compliance.
(a) States are responsible for ensuring compliance with 23 U.S.C.
164 and this part.
(b) A State that has been determined to be in compliance with the
requirements of 23 U.S.C. 164 and this part must promptly notify the
appropriate NHTSA Regional Administrator in writing of any change or
change in enforcement of the State's repeat intoxicated driver law,
identifying the specific change(s).
Dated: September 27, 2016, under authority delegated in 49 CFR
1.95.
Mark R. Rosekind,
Administrator, National Highway Traffic Safety Administration.
Dated: September 27, 2016, under authority delegated in 49 CFR
1.85.
Gregory G. Nadeau,
Administrator, Federal Highway Administration.
[FR Doc. 2016-23788 Filed 9-28-16; 4:15 pm]
BILLING CODE 4910-59-P