Transfer and Sanction Programs |
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Brandye L. Hendrickson
Federal Highway Administration
Heidi R. King
National Highway Traffic Safety Administration
8 February 2019
[Federal Register Volume 84, Number 27 (Friday, February 8, 2019)]
[Rules and Regulations]
[Pages 2731-2734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01647]
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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
Transfer and Sanction Programs
AGENCY: National Highway Traffic Safety Administration (NHTSA) and
Federal Highway Administration (FHWA), Department of Transportation
(DOT).
ACTION: Final rule.
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SUMMARY: This final rule responds to comments received on the interim
final rule published September 30, 2016, and makes minor clarifications
to the Federal implementing regulations for the Section 154 (Open
Container) and Section 164 (Repeat Intoxicated Driver) programs.
DATES: This final rule is effective on March 11, 2019.
ADDRESSES: For access to the docket to read comments received, go to
http://www.regulations.gov and search for docket number NHTSA-2016-
0099.
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 the Chief Counsel, Telephone number: (202)
366-1834, Email: Russell.Krupen@dot.gov; Facsimile: (202) 366-3820.
FHWA: For program issues: Dana Gigliotti, Team Leader, Safety
Programs Implementation Team, Office of Safety Programs, Telephone
number: (202) 366-1290, Email: Dana.Gigliotti@dot.gov. For legal
issues: Dawn Horan, Attorney Advisor, Office of the Chief Counsel,
Telephone number: (202) 366-9615, Email: Dawn.M.Horan@dot.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
The Fixing America's Surface Transportation Act (FAST Act), Public
Law 114-94, 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. 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). 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. 23 U.S.C. 164(a)(5). All 50 States, the District of
Columbia, and Puerto Rico are considered to be ``States'' for the
purposes of these programs.
The National Highway Traffic Safety Administration (NHTSA) and the
Federal Highway Administration (FHWA) (``the agencies'') jointly issued
an interim final rule (IFR), with immediate effectiveness, on September
30, 2016, (81 FR 67158) to ensure that States received instructions
that were important to the compliance determinations made on October 1,
2016, when the changes in the FAST Act became effective. The IFR
amended the Federal implementing regulations for Section 154 at 23 CFR
part 1270 and Section 164 at 23 CFR part 1275 to reflect the changed
requirements from the Federal legislation. At the same time, the
agencies updated the regulations to improve clarity, codify
longstanding interpretation of the statutes and implementing
regulations, and streamline procedures for States. The agencies sought
public comment to inform the promulgation of a final rule. This action
addresses the comments received and makes minor changes to the Federal
implementing regulations.
II. Summary of the Interim Final Rule
The IFR implemented the new compliance provisions of the FAST Act
and also updated the rules to incorporate prior statutory changes from
the Moving Ahead for Progress in the 21st Century Act (MAP-21), Public
Law 112-141 (enacted July 6, 2012), and the SAFETEA-LU Technical
Corrections Act of 2008, Public Law 110-244 (enacted June 6, 2008). The
preamble to the IFR also provided additional information regarding the
programs, and the agencies encourage States to review it in conjunction
with this preamble and the final implementing regulations.
Some of the revisions in the IFR to the Section 154 and Section 164
implementing regulations in 23 CFR parts 1270 and 1275 were made simply
to allow States to better understand the programs and attain and
maintain compliance. These revisions did not substantively amend the
compliance requirements of the programs. Such revisions included
amending or adding definitions, clarifying and broadening permitted
exceptions in the Section 154 program, and making technical corrections
as necessary.
Because the FAST Act significantly amended the compliance criteria
for the Section 164 program, the IFR also made conforming revisions to
the Section 164 implementing regulations in 23 CFR part 1275. The IFR
implemented the revised one-year license sanction requirement, allowing
States three
[[Page 2732]]
options for repeat offenders: suspension of all driving privileges,
restriction to operating only motor vehicles with an ignition interlock
device installed (allowing for limited employment and medical
exceptions), or participation in and compliance with a 24-7 sobriety
program. It eliminated the vehicle sanction requirement, which was
repealed by the FAST Act, but made no changes to the assessment and
treatment requirement, which has not changed since its inception.
Finally, it made two changes to the minimum sentence requirement:
clarifying the hour-equivalents for days served in imprisonment or
community service and implementing the annual ``general practice''
certification option for incarceration in lieu of having a compliant
mandatory minimum sentence. With regard to the latter, a State may
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). To
meet the statutory standard of ``general practice,'' the IFR requires a
State to certify that 75 percent of repeat offenders are subject to
mandatory incarceration for the minimum sentences specified for the
calendar year immediately prior to the certification.
Finally, the IFR updated the non-compliance penalties and
procedures in the regulations to reflect amendments made to the Federal
statutes by the SAFETEA-LU Technical Corrections Act and MAP-21. The
IFR also reorganized the regulations to improve clarity, streamlined
some of the procedures that apply to States, reduced paperwork burdens,
and better aligned the regulations with the longstanding administrative
practices under the programs.
III. Public Comments on the Interim Final Rule
The agencies received only two comments on the IFR: one addressing
Section 154 (anonymous commenter; NHTSA-2016-0099-0002) and one
addressing Section 164 (Transportation Departments of Idaho, Montana,
North Dakota, South Dakota, and Wyoming [``State DOTs'']; NHTSA-2016-
0099-0003).
The anonymous commenter requested that the final rule ``provide
more information about the exceptions to locations of an open container
within the vehicle.'' Specifically, the commenter wanted more
information about ``vehicles without the typical trunk that have no
cover for the hatch in the back . . . because it could possibly be
accessible to a determined passenger and potentially lead me to severe
penalties.'' Open container laws differ significantly from State to
State. Therefore, the commenter should consult the law of the
particular State to determine enforcement details and penalties.
However, for purpose of compliance with Section 154, a State may allow
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.'' 23
CFR 1270.4(d)(1). A State would not be determined to be out of
compliance with Section 154 if it allows an open container to be
possessed in the area behind the last upright seat in a hatchback-style
vehicle, regardless of whether that area is covered. The agencies are
making no changes in this final rule in response to this comment.
The State DOTs requested greater flexibility in the ``general
practice'' certification, allowing for approaches other than 75 percent
incarceration during the calendar year prior to the date of
certification. The commenters cite to the following statement from
Senator John Thune during the Senate floor debate: ``This provision is
intended to allow States to certify the general practice on minimum
penalties which can meet the definition under the repeat offender law,
and we expect that NHTSA should reasonably defer to a State's analysis
underpinning such a certification.'' 161 Congressional Record S8359
(December 3, 2015, daily ed.). The State DOTs requested that States be
permitted to certify with percentages as low as 51 percent,
particularly ``if there is evidence of a trend of an increasing
percentage or other relevant information provided by the State.''
The agencies do not believe it is appropriate to accept
certifications on the basis of 51 percent of repeat offenders receiving
the statutorily required penalties, as this essentially renders the
practice ``as likely as not'' and does not establish a ``general
practice,'' as specified in the statute. The pre-enactment statement in
floor debate does not serve to change the meaning of that statutory
term. The agencies continue to believe that 75 percent provides a
reasonable and appropriate balance between flexibility and mandatory
minimum sentences for 100 percent of offenders (as required for States
complying on the basis of their law, rather than a ``general practice''
certification). We note that NHTSA did, in fact, defer to States'
analyses of their own incarceration data underpinning their ``general
practice'' certifications for fiscal year 2017, 2018, and 2019
submissions when they certified to meeting the 75 percent requirement.
The agencies are making no changes in this final rule in response to
this comment.
IV. Revisions in the Final Rule
The agencies are making two revisions in this final rule. The first
relates to the opportunity for States determined to be non-compliant
with either Section 154 or Section 164 to submit documentation showing
why they are compliant. In the IFR, the agencies gave States 30 days
from the date of issuance of the notice of apportionments under 23
U.S.C. 104(e) by FHWA, which normally occurs on October 1, to submit
this documentation. 23 CFR 1270.8(b) and 1275.8(b). However, the
agencies tied the deadlines for submission of ``shift'' and ``split''
letters to 30 and 60 days, respectively, from the date ``the funds are
reserved.'' \1\ 23 CFR 1270.6(b), 1270.7(a), 1275.6(b), and 1275.7(a).
Although the date of issuance of the notice of apportionments and the
reservation of funds is normally the same, in some years FHWA has
rescinded and subsequently reissued the notice of apportionments. The
agencies do not intend to grant an extension of time for submission of
additional documentation or ``shift'' and ``split'' letters in the
event of such a reissuance, as the State will already have been on
notice of its non-compliance for the fiscal year because of the
original reservation of funds. To eliminate confusion and align these
deadlines, the agencies are amending the Section 154 and Section 164
regulations to require submission of any additional documentation
within ``30 days from the date the funds are reserved.''
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\1\ While all non-compliant States are required to submit
``split'' letters to receive the reserved funds (see 23 CFR
1270.7(a) and 1275.7(a)), submission of ``shift'' letters by non-
compliant States is optional (see 23 CFR 1270.6(b) and 1275.6(b)).
If FHWA does not receive a ``shift'' letter from a non-compliant
State, the default reservation of funds (based on proportionate
amounts from each of the apportionments under 23 U.S.C. 104(b)(1)
and (b)(2)) will remain.
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The second relates to the ``special exception'' to interlock use
under Section 164 for individuals certified by a medical doctor as
being unable to provide a deep lung breath sample for analysis by an
ignition interlock device. The agencies are changing ``certified by a
medical doctor'' to ``certified in writing by a physician'' to align
with NHTSA's implementing regulations for
[[Page 2733]]
23 U.S.C. 405(d)(6)(F)(ii). See 23 CFR 1300.23(g)(2)(ii). The agencies
believe a certification, by definition, must be in writing. Because the
statutory language underlying the special exception in Section 164 is
identical to the exception permitted in NHTSA's Grants to States with
Alcohol-Ignition Interlock Laws program, and the agency's regulatory
language in that program also was subject to public notice and comment,
it is appropriate to bring the language of the Section 164 implementing
regulations into alignment with that program.
V. Effective Date and Future Actions
The agencies issued the IFR with an immediate effective date to
ensure that States received instructions that were important to
compliance determinations made on October 1, 2016, as the changes in
the FAST Act became effective on that date. The effective date for this
final rule is March 11, 2019. This final rule has no effect on
determinations made on October 1, 2018, for Federal fiscal year 2019.
NHTSA and FHWA are committed to ensuring transparency in the
administration of these programs and maintaining open and active
communication with States. For example, the agencies will continue to
notify States of potential non-compliance issues for the forthcoming
fiscal year in FHWA's advance notification of apportionment, normally
issued 90 days prior to the official apportionment notice, if such
information is available to the agencies at that time. The agencies
will also notify States at other points throughout the year if they
become aware of potential non-compliance issues. However, to provide
this information in a timely fashion for States to react as
appropriate, the agencies continue to rely upon States for prompt
notification of changes in their laws. See, e.g., 23 CFR 1270.9(b) and
1275.9(b). Although the regulations require a State to ``promptly
notify'' the appropriate NHTSA Regional Administrator in writing only
of any actual change or change in enforcement of the law, States are
invited also to submit prospective changes (e.g., pending legislation)
to NHTSA throughout the year for a preliminary review of their impact
on compliance.
In addition, the agencies recognize that States would benefit from
receiving more information from the agencies regarding compliance
requirements, procedures, and relevant points of contact. NHTSA and
FHWA are exploring ways to improve the availability of information on
the programs for States to better allow them to obtain and maintain
compliance, and we are committed to rolling these improvements out in
the coming months. The agencies invite States to provide suggestions on
how we can improve transparency by contacting the individuals listed in
FOR FURTHER INFORMATION CONTACT above.
VI. Regulatory Analyses and Notices
A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563, and DOT Regulatory Policies and Procedures
NHTSA and FHWA 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 funding 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. 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 final rule updates the Section 154 and Section 164
implementing 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 final rule 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.
[[Page 2734]]
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
final rule 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 rulemaking 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 13175 (Consultation and Coordination With Indian
Tribes)
The agencies have analyzed this IFR under Executive Order 13175,
and have determined that this 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.
I. Regulatory Identifier Number (RIN)
The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Regulatory and Deregulatory Actions. The Regulatory Information Service
Center publishes the Unified 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.
J. 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.
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
Alcohol abuse, Highway safety, Intergovernmental relations,
Reservation and transfer programs--transportation.
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:
PART 1270--OPEN CONTAINER LAWS
0
1. The authority citation for part 1270 continues to read as follows:
Authority: 23 U.S.C. 154; delegation of authority at 49 CFR 1.85
and 1.95.
0
2. Amend Sec. 1270.8 by revising the first sentence of paragraph (b)
to read as follows:
Sec. 1270.8 Procedures affecting States in noncompliance.
* * * * *
(b) Each State whose funds are reserved under Sec. 1270.6 will be
afforded 30 days from the date the funds are reserved to submit
documentation showing why it is in compliance. * * *
PART 1275--REPEAT INTOXICATED DRIVER LAWS
0
3. The authority citation for part 1275 continues to read as follows:
Authority: 23 U.S.C. 164; delegation of authority at 49 CFR 1.85
and 1.95.
0
4. Amend Sec. 1275.4 by revising paragraph (b)(2) to read as follows:
Sec. 1275.4 Compliance criteria.
* * * * *
(b) * * *
(2) The individual is certified in writing by a physician as being
unable to provide a deep lung breath sample for analysis by an ignition
interlock device.
0
5. Amend Sec. 1275.8 by revising the first sentence of paragraph (b)
to read as follows:
Sec. 1275.8 Procedures affecting States in noncompliance.
* * * * *
(b) Each State whose funds are reserved under Sec. 1275.6 will be
afforded 30 days from the date the funds are reserved to submit
documentation showing why it is in compliance (which may include a
``general practice'' certification under Sec. 1275.5). * * *
Issued in Washington, DC, on: February 1, 2019.
Under authority delegated in 49 CFR 1.95 and 501.5.
Heidi R. King,
Deputy Administrator, National Highway Traffic Safety Administration.
Issued in Washington, DC, on: February 1, 2019.
Under authority delegated in 49 CFR 1.85.
Brandye L. Hendrickson,
Deputy Administrator, Federal Highway Administration.
[FR Doc. 2019-01647 Filed 2-7-19; 8:45 am]
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