[Federal Register Volume 63, Number 193 (Tuesday, October 6, 1998)]
[Rules and Regulations]
[Pages 53580-53586]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26639]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
Federal Highway Administration
23 CFR Part 1270
[Docket No. NHTSA-98-4493]
RIN 2127-AH41
Open Container Laws
AGENCY: National Highway Traffic Safety Administration (NHTSA) and
Federal Highway Administration (FHWA), Department of Transportation.
ACTION: Interim final rule; request for comments.
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SUMMARY: This interim final rule implements a new program established
by the Transportation Equity Act for the 21st Century (TEA-21)
Restoration Act, which provides for the transfer of Federal-aid highway
construction funds to 23 U.S.C. 402 State and Community Highway Safety
Program grant funds for any State that fails to enact and enforce a
conforming ``open container'' law.
This regulation is being published as an interim final rule, which
will go into effect prior to providing notice and the opportunity for
comment. Following the close of the comment period, NHTSA will publish
a separate document responding to comments and, if appropriate, will
amend provisions of the regulation.
DATES: This interim final rule becomes effective on November 5, 1998.
Comments on this interim rule are due no later than December 7, 1998.
ADDRESSES: Written comments should refer to the docket number of this
notice
[[Page 53581]]
and be submitted (preferably in two copies) to: Docket Management, Room
PL-401 Section, National Highway Traffic Safety Administration, Nassif
Building, 400 Seventh Street, SW, Washington, DC 20590. (Docket hours
are Monday-Friday, 10 a.m. to 5 p.m., excluding Federal holidays.)
FOR FURTHER INFORMATION CONTACT: In NHTSA: Ms. Jennifer Higley, Office
of State and Community Services, NSC-01, National Highway Traffic
Safety Administration, 400 Seventh Street SW, Washington, DC 20590,
telephone (202) 366-2121; or Ms. Heidi L. Coleman, Office of Chief
Counsel, NCC-30, telephone (202) 366-1834.
In FHWA: Mr. Bing Wong, Office of Highway Safety, HHS-20, telephone
(202) 366-2169; or Mr. Raymond W. Cuprill, HCC-20, telephone (202) 366-
0834.
SUPPLEMENTARY INFORMATION: The Transportation Equity Act for the 21st
Century (TEA-21), H.R. 2400, Pub. L. 105-178, was signed into law on
June 9, 1998. On July 22, 1998, a technical corrections bill, entitled
the TEA-21 Restoration Act, Pub. L. 105-206, was enacted to restore
provisions that were agreed to by the conferees to H.R. 2400, but were
not included in the TEA-21 conference report. Section 1405 of the 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 will be
transferred to the State's apportionment under Section 402 of Title 23
of the United States Code, if the State fails to enact and enforce a
conforming ``open container'' law.
In accordance with Section 154, these funds are to be used for
alcohol-impaired driving countermeasures or the enforcement of driving
while intoxicated (DWI) laws, or States may elect to use all or a
portion of the funds for hazard elimination activities, under 23 U.S.C.
Section 152.
As provided in Section 154, to avoid the transfer of funds, State
``open container'' laws must prohibit the possession of any open
alcoholic beverage container, and the consumption of any alcoholic
beverage, in the passenger area of any motor vehicle located on a
public highway, or the right-of-way of a public highway, in the State.
This new program was established to address the issue of impaired
driving, which is a serious national problem.
Background
The Problem of Impaired Driving
Injuries caused by motor vehicle traffic crashes are a major health
care problem in America and are the leading cause of death for people
aged 6 to 27. Each year, the injuries caused by traffic crashes in the
United States claim approximately 42,000 lives and cost Americans an
estimated $150 billion, including $19 billion in medical and emergency
expenses, $42 billion in lost productivity, $52 billion in property
damage, and $37 billion in other crash related costs. In 1997, alcohol
was involved in approximately 39 percent of fatal traffic crashes and 7
percent of all crashes. Every 32 minutes, someone in this country dies
in an alcohol-related crash. In 1994, alcohol-involved crashes resulted
in $45 billion in economic costs, accounting for 30 percent of all
crash costs. Impaired driving is the most frequently committed violent
crime in America.
Open Container Law Incentives
State open container laws can serve as an important tool in the
fight against impaired driving. In order to encourage States to enact
and enforce effective impaired driving measures (including open
container laws), Congress enacted 23 U.S.C. Section 410 (the Section
410 program). Under this program, States could qualify for supplemental
grant funds if they were eligible for a basic Section 410 grant, and
they had an open container law that met certain requirements.
TEA-21 changed the Section 410 program and removed the open
container incentive grant criterion. The conferees to that legislation
had intended to create a new open container transfer program to
encourage States to enact open container laws, but this new program was
inadvertently omitted from the TEA-21 conference report. The program
was included instead in the TEA-21 Restoration Act, which was signed
into law on July 22, 1998.
Section 154 Open Container Law Program
Section 154 provides that the Secretary must transfer a portion of
a State's Federal-aid highway funds apportioned under Sections
104(b)(1), (3), and (4) of title 23 of the United States Code, for the
National Highway System, Surface Transportation Program and Interstate
System, to the State's apportionment under Section 402 of that title,
if the State does not meet certain statutory requirements. All 50
States, the District of Columbia and Puerto Rico are considered to be
States, for the purpose of this program.
To avoid the transfer, a State must enact and enforce a 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.
Consistent with other programs that are administered by the
agencies, a State's law must have been both passed and come into effect
to permit a State to rely on the law to avoid the transfer of funds. In
addition, the State must be actively enforcing the law.
Any State that does not enact and enforce a conforming open
container law will be subject to a transfer of funds. In accordance
with Section 154, if a State does not meet the statutory requirements
on October 1, 2000 or October 1, 2001, an amount equal to one and on-
half percent of the funds apportioned to the State on those dates under
each of Sections 104(b)(1), (3) and (4) of title 23 of the United
States Code will be transferred to the State's apportionment under
Section 402 of that title. If a State does not meet the statutory
requirements on October 1, 2002, an amount equal to three percent of
the funds apportioned to the State on that date under Sections
104(b)(1), (3) and (4) will be transferred. An amount equal to three
percent will continue to be transferred on October 1 of each subsequent
fiscal year, if the State does not meet the requirements on those
dates.
Section 154 and this implementing regulation, provides also that
the amount of the apportionment to be transferred may be derived from
one or more of the apportionments under Sections 104(b)(1), (3) and
(4).
In other words, the total amount to be transferred from a non-
conforming State will be calculated based on a percentage of the funds
apportioned to the State under each of Sections 104(b)(1), (3) and (4).
However, the actual transfers need not be evenly distributed among
these three sources. The transferred funds may come from any one or a
combination of the apportionments under Sections 104(b)(1), (3) or (4),
as long as the appropriate total amount is transferred from one or more
of these three sections.
The funds transferred to Section 402 under this program are to be
used for alcohol-impaired driving countermeasures or directed to State
and local law enforcement agencies for
[[Page 53582]]
the enforcement of laws prohibiting driving while intoxicated, driving
under the influence or other related laws or regulations. The Act
provides that States may elect to use all or a portion of the
transferred funds for hazard elimination activities under 23 U.S.C.
152.
Compliance Criteria
To avoid the transfer of funds under this program, Section 154
provides that a State must enact and enforce:
A 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.
The interim final rule specifies a number of elements that State
open container laws must meet to be considered to be conforming and to
enable a State to avoid the transfer of Federal-aid highway
construction funds. The elements are described below.
1. Prohibits Possession of Any Open Alcoholic Beverage Container and
the Consumption of Any Alcoholic Beverage
To avoid the transfer of funds, the State's open container law must
prohibit the possession of any open alcoholic beverage container in the
passenger area of any motor vehicle that is located on a public highway
or right-of-way. The State's law must also prohibit the consumption of
any alcoholic beverage in the passenger area of any motor vehicle that
is located on a public highway or right-of-way.
The agencies are aware of 16 States that prohibit the consumption
of alcoholic beverages, but not the possession of an open container in
the absence of consumption. These laws do not conform to the
requirements of the regulation.
2. In the Passenger Area of Any Motor Vehicle
To avoid the transfer of funds, the State's open container law
prohibiting the possession of open alcoholic beverage containers and
the consumption of alcoholic beverages must apply whenever such
activity is taking place in the passenger area of any motor vehicle,
consistent with the definitions of ``motor vehicle'' and ``passenger
area'' that are included in Sec. 1270.3 of the regulation.
The agencies have defined ``motor vehicle'' in the regulation to
mean a vehicle driven or drawn by mechanical power and manufactured
primarily for use on public highways. The term does not include a
vehicle operated exclusively on a rail or rails.
Passenger area is defined in the regulation to mean 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.
The agencies have reviewed existing State open container laws and
identified certain exceptions to this element contained in those laws.
The agencies' review revealed that two States prohibit occupants from
possessing open alcoholic beverage containers in the passenger area,
but do not consider it to be an offense if the container is located in
a locked glove compartment of the vehicle.
The agencies' review revealed also that a number of States prohibit
occupants from possessing open alcoholic beverage containers in motor
vehicles, but provide an exception when the vehicle is not equipped
with a trunk. These States do not consider it to be an offense to keep
an open alcoholic beverage container behind the last upright seat of
such vehicles or in an area of such vehicles not normally occupied by
the driver or passengers.
These exceptions will not disqualify an otherwise qualified State
from complying with the requirements of the regulation. A law that
permits the possession of open alcoholic beverage containers in an
unlocked glove compartment, however, will not conform to the
requirements of the regulation. The agencies note, for example, that
one State permits occupants to keep an open alcoholic beverage
container in a closed glove compartment of a motor vehicle. Such an
exception is not acceptable under the regulation.
3. All Alcoholic Beverages
To avoid the transfer of funds, the State's open container law must
apply to all ``alcoholic beverages.'' In accordance with section 154,
``alcoholic beverage'' is defined in the regulation to include all
types of alcoholic beverages, including beer, wine and distilled
spirits. Beer and wine are covered by the definition if they contain
one-half of 1 percent or more of alcohol by volume. Distilled spirits
containing any amount of alcohol are covered. Accordingly, a State law
that does not define 3.2 percent beer, for instance, as an alcoholic
beverage would not conform to the requirements of the regulation.
An ``open alcoholic beverage container'' is any bottle, can, or
other receptacle that contains any amount of alcoholic beverage, and
that is open or has a broken seal, or the contents of which are
partially removed.
4. Applies to All Occupants
To avoid the transfer of funds, the State's open container law must
apply to all occupants of the motor vehicle, including the driver and
all passengers.
The agencies are aware of one State that prohibits drivers from
possessing an open alcoholic beverage container, but passengers are not
covered by the prohibition. Since this law does not apply to all
occupants in the passenger area, it does not conform to the
requirements of the regulation.
The statute provides for two exceptions, however, to the all-
occupant requirement. A State's law will be deemed to apply to all
occupants if the law prohibits the possession of any open alcoholic
beverage container by the driver, but permits possession of alcohol by
passengers in ``the passenger area of a motor vehicle designed,
maintained or used primarily for the transportation of persons for
compensation'' (such as buses, taxis and limousines) and those ``in the
living quarters of a house coach or house trailer.''
The regulation clarifies that the exceptions may apply to the
consumption of alcoholic beverages by a passenger as well as to the
passenger's possession of open alcoholic beverage containers. The
driver of a motor vehicle, however, may not be covered by the
exception.
5. Located on a Public Highway or the Right-of-way of a Public Highway
To avoid the transfer of funds, the State's open container law must
apply to a motor vehicle while it is located anywhere on a public
highway or the right-of-way of a public highway. The agencies have
defined ``public highway or the right-of-way of a public highway'' to
mean the entire 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.
The agencies are aware of 11 States with open container laws that
apply only when the motor vehicle is being operated on a highway, but
do not prohibit possession or consumption by persons in a vehicle that
is stopped or parked on the highway or on the right-of-way, along the
side of the highway. These laws do not conform to the requirements of
the regulation.
The agencies are also aware of one State with an open container law
that applies only to motor vehicles in
[[Page 53583]]
parking areas in certain counties of the State. Since this law does not
apply when the vehicle is located on the highway or right-of-way and
since it does not apply Statewide, it does not conform to the
requirements of the regulation.
6. Primary Enforcement
To avoid the transfer of funds, the State must provide for primary
enforcement of its open container law. Under a primary enforcement law,
law enforcement officials have the authority to enforce the law
without, for example, the need to show that they had probable cause to
believe that another violation had been committed. A State open
container law that provides for secondary enforcement will not conform
to the requirements of the regulation.
The agencies are aware of one State open container law that can be
enforced only as a secondary action when the driver has been determined
to have a blood alcohol concentration above a specified minimum blood
alcohol level. Since this open container law cannot be enforced in the
absence of this condition, it does not conform to the requirements of
the regulation.
Demonstrating Compliance
Section 154 provides that nonconforming States will be subject to
the transfer of funds beginning in fiscal year 2001. To avoid the
transfer, this interim final rule provides that each State must submit
a certification demonstrating compliance.
The certifications submitted by the States under this Part will
provide the agencies with the basis for finding States in compliance
with the Open Container requirements. Accordingly, until a State has
been determined to be in compliance with these requirements, a State
must submit a certification by an appropriate State official that the
State has enacted and is enforcing an open container law that conforms
to 23 U.S.C. 154 and Sec. 1270 of this Part.
Certifications must include citations to the State's conforming
open container law. These citations must include all applicable
provisions of the State's code including, for example, citations to the
State's definition of alcoholic beverage.
Once a State has been determined to be in compliance with the
requirements, the State would not be required to submit certifications
in subsequent fiscal years, unless the State's law had changed or the
State had ceased to enforce the open container law. It is the
responsibility of each State to inform the agencies of any such change
in a subsequent fiscal year, by submitting an amendment or supplement
to its certification.
States are required to submit their certifications on or before
September 30, 2000, to avoid the transfer of FY 2001 funds on October
1, 2000.
States that are found in noncompliance with these requirements in
any fiscal year, once they have enacted complying legislation and are
enforcing the law, must submit a certification to that effect before
the following fiscal year to avoid the transfer of funds in that
following fiscal year. Such certifications demonstrating compliance
must be submitted on or before the first day (October 1) of the
following fiscal year.
The agencies strongly encourage States to submit their
certifications in advance. The early submission of these documents will
enable the agencies to inform States as quickly as possible whether or
not their laws satisfy the requirements of Section 154 and the
implementing regulation, and will provide States with noncomplying laws
an opportunity to take the necessary steps to meet these requirements
before the date for the transfer of funds.
The agencies also strongly encourage States that are considering
the enactment of open container legislation to request preliminary
reviews of such legislation from the agencies while the legislation is
still pending. The agencies would determine in these preliminary
reviews whether the legislation, if enacted, will conform to the new
regulation, thereby avoiding a situation in which a State
unintentionally enacts a non-conforming open container law and the
State remains subject to the transfer of funds. Requests should be
submitted through NHTSA's Regional Administrators, who will refer the
requests to appropriate NHTSA and FHWA offices for review.
Enforcement
Section 154 provides that, to qualify for grant funding, a State
must not only enact a conforming law, but must also enforce the law. To
ensure the effective implementation of an open container law, the
agencies encourage the States to enforce their open container laws
rigorously. In particular, the agencies recommend that States
incorporate into their enforcement efforts activities designed to
inform law enforcement officers, prosecutors, members of the judiciary
and the public about their open container laws. States should also take
steps to integrate their open container enforcement efforts into their
enforcement of other impaired driving laws.
To demonstrate that they are enforcing their laws under the
regulation, however, States are required only to submit a certification
that they are enforcing their laws.
Notification of Compliance
For each fiscal year, beginning with FY 2001, NHTSA and the FHWA
will notify States of their compliance or noncompliance with Section
154, based on a review of certifications received. If, by June 30 of
any year, beginning with the year 2000, a State has not submitted a
certification or if the State has submitted a certification and it does
not conform to Section 154 and the implementing regulation, the
agencies will make an initial determination that the State does not
comply with Section 154 and with this regulation, and the transfer of
funds will be noted in the FHWA's advance notice of apportionment for
the following fiscal year, which generally is issued in July.
Each State determined to be in noncompliance will have an
opportunity to rebut the initial determination. The State will be
notified of the agencies' final determination of compliance or
noncompliance and the amount of funds to be transferred as part of the
certification of apportionments, which normally occurs on October 1 of
each fiscal year.
As stated earlier, NHTSA and the FHWA expect that States will want
to know as soon as possible whether their laws satisfy the requirements
of Section 154, or they may want assistance in drafting conforming
legislation.
States are strongly encouraged to submit certifications in advance,
and to request preliminary reviews and assistance from the agencies.
Requests should be submitted through NHTSA's Regional Administrators,
who will refer these requests to appropriate NHTSA and FHWA offices for
review.
Interim Final Rule
This document is being published as an interim final rule.
Accordingly, the new regulations in part 1270 are fully in effect 30
days after the date of the document's publication. No further
regulatory action by the agencies is necessary to make these
regulations effective.
These regulations have been published as an interim final rule
because insufficient time was available to provide for prior notice and
opportunity for comment. Some State legislatures do not meet every
year. Other State legislatures do meet every year, but limit their
business every other year to certain limited matters, such as
[[Page 53584]]
budget and spending issues. The agencies are aware of six State
legislatures that are not scheduled to meet at all in the Year 2000,
and additional State legislatures may have limited agendas in that
year. These States will have just one opportunity (during the 1999
session of their State legislatures) to enact conforming legislation,
and they are preparing agendas and proposed legislation now for their
1999 legislative sessions. These States have an urgent need to know
what the criteria will be as soon as possible so they can develop and
enact conforming legislation and avoid the transfer of funds on October
1, 2000.
In the agencies' view, the States will not be impeded by the use of
an interim final rule. The procedures that States must follow to avoid
the transfer of funds under this new program are similar to procedures
that States have followed in other programs administered by NHTSA and/
or the FHWA. These procedures were established by rulemaking and were
subject to prior notice and the opportunity for comment.
Moreover, the criteria that States must meet to demonstrate that
they have a conforming open container law are derived from the Federal
statute and are similar to the criteria that the agencies followed when
an open container criterion was included as an incentive under the
Section 410 program. NHTSA's Section 410 program regulations were
subject to prior notice and the opportunity for comment.
For these reasons, the agencies believe that there is good cause
for finding that providing notice and comment in connection with this
rulemaking action is impracticable, unnecessary, and contrary to the
public interest.
The agencies request written comments on these new regulations. All
comments submitted in response to this document will be considered by
the agencies. Following the close of the comment period, the agencies
will publish a document in the Federal Register responding to the
comments and, if appropriate, will make revisions to the provisions of
Part 1270.
Written Comments
Interested persons are invited to comment on this interim final
rule. It is requested, but not required, that two copies be submitted.
All comments must be limited to 15 pages in length. Necessary
attachments may be appended to those submissions without regard to the
15 page limit. (49 CFR 553.21) This limitation is intended to encourage
commenters to detail their primary arguments in a concise fashion.
Written comments to the public docket must be received by December
7, 1998. To expedite the submission of comments, simultaneous with the
issuance of this notice, NHTSA and the FHWA will mail copies to all
Governors' Representatives for Highway Safety and State Departments of
Transportation.
All comments received before the close of business on the comment
closing date will be considered and will be available for examination
in the docket at the above address before and after that date. To the
extent possible, comments filed after the closing date will also be
considered. However, the rulemaking action may proceed at any time
after that date. The agencies will continue to file relevant material
in the docket as it becomes available after the closing date, and it is
recommended that interested persons continue to examine the docket for
new material.
Those persons who wish to be notified upon receipt of their
comments in the docket should enclose, in the envelope with their
comments, a self-addressed stamped postcard. Upon receiving the
comments, the docket supervisor will return the postcard by mail.
Copies of all comments will be placed in the Docket 98-4493 in
Docket Management, Room PL-401, Nassif Building, 400 Seventh Street,
SW, Washington, DC 20590.
Regulatory Analyses and Notices
Executive Order 12778 (Civil Justice Reform)
This interim final rule will not have any preemptive or retroactive
effect. The enabling legislation does not establish a procedure for
judicial review of final rules promulgated under its provisions. There
is no requirement that individuals submit a petition for
reconsideration or other administrative proceedings before they may
file suit in court.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The agencies have determined that this action is not a significant
action within the meaning of Executive Order 12866 or significant
within the meaning of Department of Transportation Regulatory Policies
and Procedures. States can choose to enact and enforce an open
container law, in conformance with Pub. L. 105-206, and thereby avoid
the transfer of Federal-aid highway funds. Alternatively, if States
choose not to enact and enforce a conforming law, their funds will be
transferred, but not withheld. Accordingly, the amount of funds
provided to each State will not change.
In addition, the costs associated with this rule are minimal and
are expected to be offset by resulting highway safety benefits. The
enactment and enforcement of open container laws should help to reduce
impaired driving, which is a serious and costly problem in the United
States. Accordingly, further economic assessment is not necessary.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), the agencies have evaluated the effects of this
action on small entities. This rulemaking implements a new program
enacted by Congress in the TEA-21 Restoration Act. As the result of
this new Federal program, and the implementing regulation, States will
be subject to a transfer of funds if they do not enact and enforce laws
prohibiting the possession of open alcoholic beverage containers and
the consumption of alcoholic beverages. This interim final rule will
affect only State governments, which are not considered to be small
entities as that term is defined by the Regulatory Flexibility Act.
Thus, 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.
Paperwork Reduction Act
This action does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act of 1980, 44
U.S.C. Chapter 35, as implemented by the Office of Management and
Budget (OMB) in 5 CFR Part 1320.
National Environmental Policy Act
The agencies have analyzed this action for the purpose of the
National Environmental Policy Act, and have determined that it will not
have a significant effect on the human environment.
The 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 affects of final rules that include a Federal mandate likely to
result in the expenditure by the State, local or tribal governments, in
the aggregate, or by the private sector, of more than $100 million
annually. This interim final rule does not meet the definition of a
Federal mandate, because the resulting annual
[[Page 53585]]
expenditures are not expected to exceed the $100 million threshold. In
addition, the program is optional to the States. States may choose to
enact and enforce a conforming open container law and avoid the
transfer of funds altogether. Alternatively, if States choose not to
enact and enforce a conforming law, funds will be transferred, but no
funds will be withheld from any State.
Executive Order 12612 (Federalism)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this action does not have sufficient federalism implications to
warrant the preparation of a federalism assessment. Accordingly, a
Federalism Assessment has not been prepared.
List of Subjects in 23 CFR Part 1270
Alcohol and alcoholic beverages, Grant programs--transportation,
Highway safety.
In accordance with the foregoing, a new Subchapter D--Transfer and
Sanction Programs is added to Chapter II of Title 23 Code of Federal
Regulations and a new Part 1270 is added to Subchapter D to read as
follows:
SUBCHAPTER D--TRANSFER AND SANCTION PROGRAMS
PART 1270--OPEN CONTAINER LAWS
Sec.
1270.1 Scope.
1270.2 Purpose.
1270.3 Definitions.
1270.4 Compliance criteria.
1270.5 Certification requirements.
1270.6 Transfer of funds.
1270.7 Use of transferred funds.
1270.8 Procedures affecting States in noncompliance.
Authority: 23 U.S.C. 154; delegation of authority at 49 CFR 1.48
and 1.50.
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 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) Enact and enforce means the State's law is in effect and the
State has begun to implement the law.
(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) Open alcoholic beverage container means any bottle, can, or
other receptacle that:
(1) Contains any amount of alcoholic beverage; and
(2)(i) Is open or has a broken seal; or
(ii) The contents of which are partially removed.
(e) 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.
(f) Public highway or right-of-way of a public highway means the
entire 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.
(g) 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 transfer of funds as specified in Sec. 1270.6 of
this part, a State must enact and enforce a 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 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 glove compartment, or behind the last upright
seat or in an area not normally occupied by the driver or a passenger
in a motor vehicle that is not equipped with a trunk, the State shall
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 or 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, as provided in paragraph (b)(4) of this section.
Sec. 1270.5 Certification requirements.
(a) Until a State has been determined to be in compliance, or after
a State has been determined to be in non-compliance, with the
requirements of 23 U.S.C. 154, to avoid the transfer of funds in any
fiscal year, beginning with FY 2001, the State shall certify to the
Secretary of Transportation, on or before September 30 of the previous
fiscal year, that it meets the requirements of 23 U.S.C. 154 and this
part.
(b) The certification shall be made by an appropriate State
official, and it shall provide that the State has enacted and is
enforcing an open container law that conforms to 23 U.S.C. 154 and
Sec. 1270.4 of this part. The certification shall be worded as follows:
(Name of certifying official), (position title), of the (State or
Commonwealth) of ______, do hereby certify that the (State or
Commonwealth) of ______, has enacted and is enforcing an open
container law that conforms to the requirements of 23 U.S.C. 154 and
23 CFR 1270.4, (citations to State law).
(c) An original and four copies of the certification shall be
submitted to the appropriate NHTSA Regional Administrator. Each
Regional
[[Page 53586]]
Administrator will forward the certifications to the appropriate NHTSA
and FHWA offices.
(d) Once a State has been determined to be in compliance with the
requirements of 23 U.S.C. 154, it is not required to submit additional
certifications, except that the State shall promptly submit an
amendment or supplement to its certification provided under paragraphs
(a) and (b) of this section if the State's open container law changes
or the State ceases to enforce such law.
Sec. 1270.6 Transfer of funds.
(a) On October 1, 2000, and October 1, 2001, if a State does not
have in effect or is not enforcing the law described in Sec. 1270.4,
the Secretary shall transfer an amount equal to 1\1/2\ percent of the
funds apportioned to the State for that fiscal year under each of 23
U.S.C. 104(b)(1), (b)(3), and (b)(4) to the apportionment of the State
under 23 U.S.C. 402.
(b) On October 1, 2002, and each October 1 thereafter, if a State
does not have in effect or is not enforcing the law described in
Sec. 1270.4, the Secretary shall transfer an amount equal to 3 percent
of the funds apportioned to the State for that fiscal year under each
of 23 U.S.C. 104(b)(1), (b)(3), and (b)(4) to the apportionment of the
State under 23 U.S.C. 402.
Sec. 1270.7 Use of transferred funds.
(a) Any funds transferred under Sec. 1270.6 may:
(1) Be used for approved projects for alcohol-impaired driving
countermeasures; or
(2) Be 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).
(b) States may elect to use all or a portion of the transferred
funds for hazard elimination activities eligible under 23 U.S.C. 152.
(c) The Federal share of the cost of any project carried out with
the funds transferred under Sec. 1270.6 of this part shall be 100
percent.
(d) The amount to be transferred under Sec. 1270.6 of this part may
be derived from one or more of the following:
(1) The apportionment of the State under Sec. 104(b)(1);
(2) The apportionment of the State under Sec. 104(b)(3); or
(3) The apportionment of the State under Sec. 104(b)(4).
(e)(1) If any funds are transferred under Sec. 1270.6 of this part
to the apportionment of a State under Section 402 for a fiscal year, an
amount, determined under paragraph (e)(2) of this section, of
obligation authority will be distributed for the fiscal year to the
State for Federal-aid highways and highway safety construction programs
for carrying out projects under Section 402.
(2) The amount of obligation authority referred to in paragraph
(e)(1) of this section shall be determined by multiplying:
(i) The amount of funds transferred under Sec. 1270.6 of this part
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.
(f) 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 Sec. 1270.6 to the apportionment
of a State under such 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, based on NHTSA's and FHWA's
preliminary review of its certification, will be advised of the funds
expected to be transferred under Sec. 1270.4 from apportionment, as
part of the advance notice of apportionments required under 23 U.S.C.
104(e), normally not later than ninety days prior to final
apportionment.
(b) If NHTSA and FHWA determine that the State is not in compliance
with 23 U.S.C. 154 and this part, based on the agencies' preliminary
review, the State may, within 30 days of its receipt of the advance
notice of apportionments, submit documentation showing why it is in
compliance. Documentation shall be submitted to the appropriate
National Highway Traffic Safety Administration Regional office.
(c) Each fiscal year, each State determined not to be in compliance
with 23 U.S.C. 154 and this part, based on NHTSA's and FHWA's final
determination, will receive notice of the funds being transferred under
Sec. 1270.6 from apportionment, as part of the certification of
apportionments required under 23 U.S.C. 104(e), which normally occurs
on October 1 of each fiscal year.
Issued on: September 30, 1998.
Kenneth R. Wykle,
Administrator, Federal Highway Administration.
Ricardo Martinez,
Administrator, National Highway Traffic Safety Administration.
[FR Doc. 98-26639 Filed 10-1-98; 9:31 am]
BILLING CODE 4910-59-P