Regulatory Update of Transfer and Sanction Programs, 67158-67170 [2016-23788]

Agencies

• Federal Highway Administration
• National Highway Traffic Safety Administration
• DEPARTMENT OF TRANSPORTATION

[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 https://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 https://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 https://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 https://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 https://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 https://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 https://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 https://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

[[Page 67169]]

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

[[Page 67170]]

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