[Federal Register Volume 65, Number 165 (Thursday, August 24, 2000)]
[Rules and Regulations]
[Pages 51532-51538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-21564]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

Federal Highway Administration

23 CFR Part 1270

[Docket No. NHTSA-99-4493]
RIN 2127-AH41


Open Container Laws

AGENCY: National Highway Traffic Safety Administration (NHTSA) and 
Federal Highway Administration (FHWA), Department of Transportation.

ACTION: Final rule.

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SUMMARY: This document adopts as a final rule, with some changes, the 
regulations that were published in an interim final rule to implement a 
new program established by the Transportation Equity Act for the 21st 
Century (TEA 21) Restoration Act. The final rule provides for a 
transfer of Federal-aid highway construction funds authorized under 23 
U.S.C. 104 to the State and Community Highway Safety Program under 23 
U.S.C. 402 for any State that fails to enact and enforce a conforming 
``open container'' law.

DATES: This final rule becomes effective on August 24, 2000.

FOR FURTHER INFORMATION CONTACT: Mr. Glenn Karr, Office of State and 
Community Services, NSC-01, telephone (202) 366-2121; or Ms. Heidi L. 
Coleman, Office of Chief Counsel, NCC-30, telephone (202) 366-1834.

SUPPLEMENTARY INFORMATION: The Transportation Equity Act for the 21st 
Century (TEA 21), Pub. L. 105-178, was signed into law on June 9, 1998. 
On July 22, 1998, the TEA 21 Restoration Act, Pub. L. 105-206, was 
enacted to restore provisions that had been agreed to by the conferees 
on TEA 21, but had not been included in the TEA 21 conference report. 
Section 1405 of the Act amended Chapter 1 of Title 23, United States 
Code, by adding Section 154, which established a program to transfer a 
percentage of a State's Federal-aid highway construction funds 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 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 located on a 
public highway, or the right-of-way of a public highway, in the State.

[[Page 51533]]

    In accordance with section 154, the transferred funds are to be 
used for alcohol-impaired driving countermeasures or the enforcement of 
driving while intoxicated (DWI) laws. States may elect instead to use 
all or a portion of the funds for hazard elimination activities, under 
23 U.S.C. Section 152.

Background

The Problem of Impaired Driving

    Injuries caused by motor vehicle traffic crashes are the leading 
cause of death in America for people aged 5 to 29. Each year, traffic 
crashes in the United States claim approximately 41,000 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 
1998, alcohol was involved in approximately 39 percent of fatal traffic 
crashes. Every 33 minutes, someone in this country dies in an alcohol-
related crash. 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. 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) 
in 1988. Under this program, States could qualify for supplemental 
grant funds if they qualified for a basic Section 410 grant and 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 fails to enact and enforce a conforming ``open container'' 
law. If a State does not meet the statutory requirements on October 1, 
2000 or October 1, 2001, an amount equal to one and one-half percent of 
the funds apportioned to the State will be transferred. 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 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.
    To avoid the transfer of funds 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.

Interim Final Rule

    On October 6 1998, NHTSA and the FHWA published an interim final 
rule in the Federal Register to implement the Section 154 program (63 
FR 53580). The interim final rule provided that, to avoid the transfer 
of funds, a State must have a law that has been enacted and made 
effective, and must be actively enforcing the law. In addition, the law 
must meet certain basic elements.

Compliance Criteria

    To avoid a transfer of funds under the interim final rule, a State 
must meet the following basic elements:

1. Prohibits Possession of Any Open Alcoholic Beverage Container and 
the Consumption of Any Alcoholic Beverage

    The 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 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.

2. In the Passenger Area of Any Motor Vehicle

    The law 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.

3. All Alcoholic Beverages

    The law must apply to all ``alcoholic beverages.''

4. Applies to All Occupants

    The law must apply to all occupants of the motor vehicle, including 
the driver and all passengers.

5. Located on a Public Highway or the Right-of-Way of a Public Highway

    The 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.

6. Primary Enforcement

    The State must provide for primary enforcement of its 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 
law that provides for secondary enforcement will not conform to the 
requirements of the regulation.
    A more detailed discussion of the six elements described above is 
contained in the interim final rule (63 FR 53580-586).
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, the interim final rule provided that each 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 part 1270. A more detailed discussion regarding the 
certifications is contained in the interim final rule (63 FR 53583).
Enforcement
    Section 154 provides that a State must not only enact a conforming 
law, but must also enforce the law. In the interim final rule, the 
agencies encouraged the States to enforce their open container laws 
rigorously. In particular, the agencies recommended 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, the interim rule indicated that States are 
required only

[[Page 51534]]

to submit a certification that they are enforcing their laws.
Notification of Compliance
    The interim final rule provided that 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 been determined by the agencies, based on 
the State's laws and a conforming certification, to comply with section 
154 and the implementing regulation, the agencies will make an initial 
determination that the State does not comply with section 154, 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 until 
September 30 to rebut the initial determination or to come into 
compliance. 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.
Request for Comments
    The agencies requested comments from interested persons on the 
interim final rule. The agencies stated in the interim final rule that 
all comments submitted would be considered and that following the close 
of the comment period, the agencies would publish a document in the 
Federal Register responding to the comments and, if appropriate, would 
make revisions to the provisions of part 1270.
Comments Received
    The agencies received submissions from six commenters in response 
to the interim final rule. Comments were received from: Betty J. 
Mercer, Division Director, Office of Highway Safety Planning, Michigan 
Department of State Police and James R. DeSana, Director, Michigan 
Department of Transportation (Michigan); Henry M. Jasny, General 
Counsel for Advocates for Highway and Auto Safety (Advocates); Carl D. 
Tubbesing, Deputy Executive Chair, National Conference of State 
Legislatures (NCSL); Tricia Roberts, Director of the Delaware Office of 
Highway Safety, Brian J. Bushweller, Secretary, Delaware Department of 
Public Safety and Ann P. Canby, Secretary, Delaware Department of 
Transportation (Delaware); K. Craig Allred, Director, Utah Highway 
Safety Office and Chair, National Association of Governors' Highway 
Safety Representatives (NAGHSR); and Peter M. Thompson, Coordinator, 
State of New Hampshire, Office of the Governor, Highway Safety Agency 
(New Hampshire). The comments, and the agencies' responses to them, are 
discussed in detail below. Also discussed below are certain changes 
that the agencies decided to make in this final rule regarding issues 
that were raised during NHTSA's review of State laws and proposed 
legislation pursuant to the interim final rule.
1. General Comments
    In general, the comments in response to the interim final rule were 
positive. Advocates strongly supported the compliance requirements, 
citing studies that show ``that possession of open containers of 
alcoholic beverages in the passenger compartment of motor vehicles is 
associated with an [unexpectedly] high percentage of motor vehicle 
crashes, even if the driver of the vehicle has not been shown to have 
consumed any alcohol.''
    Michigan and Delaware indicated that they opposed penalties applied 
to transportation funding for non-compliance with requirements such as 
section 154. NCSL stated that ``a one-size-fits-all approach is not the 
best way to tackle the nation's drunk driving problem.''
    Most comments related to the specific requirements that State open 
container laws must meet to avoid a transfer of funds. These comments 
and the agencies' responses to them are discussed in greater detail 
below.
2. Comments Regarding the Definition of Open Container
    Section 154 defined the term ``open alcoholic beverage container'' 
to mean 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.

The agencies adopted this definition in the interim final rule.
    NAGHSR argued that the agencies' definition was too broad. It 
commented that the agencies' definition ``prohibits an open container 
even when such container carries only trace amounts of an alcoholic 
beverage.'' It recommended that the definition be changed ``to one 
which prohibits an open container with any usable or consumable amount 
of alcohol.''
    As indicated above, the definition of ``open container'' was 
specifically included in the statute and the agencies are not at 
liberty to change it in the absence of an amendment to the legislation. 
Accordingly, this portion of the interim regulation has been adopted 
without change.
3. Comments Regarding the Possession and Consumption Requirement
    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.

The interim final rule provided that the State's open container law 
must prohibit both the possession of any open alcoholic beverage 
container and the consumption of any alcoholic beverage in the 
passenger area of any motor vehicle.
    NAGHSR disagreed with the agencies' decision to require open 
container laws to cover both possession and consumption and argued that 
under the statutory language, laws may prohibit either possession or 
consumption. NAGHSR stated that the agencies have ``interpreted the 
federal statutory language too expansively and not in a manner 
consistent with Congressional intent.'' NAGHSR commented also that 
``there is nothing in the legislative history of the open container 
provision to support a requirement that both possession and consumption 
should be prohibited.''
    By contrast, Advocates expressed support for the possession and 
consumption requirement. It indicated that ``we concur with the 
agencies that the statute requires that State open container laws must 
prohibit both `the possession of any open alcoholic container' and 
`must also prohibit the consumption of any alcoholic beverage in the 
passenger area of any motor vehicle'* * *. There is no other plausible 
way to read the statutory language.''
    NCSL expressed its concern that many State laws do not cover both 
possession and consumption. It stated that ``sixteen state laws 
currently prohibit consumption but not possession. It is unlikely that 
states could change the laws to reflect the requirement in time to 
avoid the 1\1/2\ % redirection penalty in either the first or second 
year.''
    New Hampshire noted that its law prohibited possession of an open 
container but did not specifically prohibit consumption of an alcoholic 
beverage. It stated that ``in order to consume an alcoholic beverage, 
an individual must first have that beverage in their possession. Why is 
it necessary

[[Page 51535]]

to complicate the language by requiring that both `possession' and 
`consumption' be included in the law when simply possessing alcohol in 
an open container in the passenger area is sufficient.''
    The agencies do not believe that they have interpreted the 
statutory language too broadly or in a manner inconsistent with 
Congressional intent. The statutory language requires that State laws 
must penalize an individual for either possessing an open container or 
consuming an alcoholic beverage in the passenger area of a motor 
vehicle. In other words, State laws must prohibit both activities 
independently. NHTSA has interpreted this language consistently since 
1990, when it issued regulations implementing the Section 410 program, 
under which States could qualify for a supplemental grant by adopting 
laws that prohibited both the possession of an open container and the 
consumption of alcoholic beverages. There is nothing in the legislative 
history of section 154 that would suggest that Congress intended that 
this interpretation should change. For these reasons, this portion of 
the interim regulation has been adopted without change.
    With respect to New Hampshire's assertion that open container laws 
that prohibit possession need not specifically prohibit consumption, 
the agencies agree with this view. We note that, during NHTSA's review 
of State laws and proposed legislation, when presented with provisions 
that prohibit possession of any open container, it has determined that 
these provisions necessarily also prohibit consumption of alcoholic 
beverages because it is not possible to consume an alcoholic beverage 
without also possessing it. Accordingly, State laws and proposed 
legislation that prohibit possession have been found to be in 
compliance with the possession and consumption criterion.
4. Comments Regarding the Passenger Area of Any Motor Vehicle 
Requirement
    The term ``passenger area'' was defined in the interim final rule 
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.'' Delaware commented that ``the 
prohibition of the entire ``passenger area'' is not justified.'' It 
stated that ``the intent is to prohibit the driver from driving under 
the influence. Passenger area of the vehicle needs to be less stringent 
with a focus on the driver.''
    The statutory language specifically provides that open container 
laws must prohibit possession and consumption in the passenger area of 
any motor vehicle and the agencies are not at liberty to change this 
requirement in the absence of an amendment to the legislation. 
Moreover, there is nothing in the legislative history that suggests 
that the purpose of the Section 154 program was focused solely on 
preventing a driver from possessing alcoholic beverages. Congress 
enacted other programs in TEA 21 and in the TEA 21 Restoration Act, 
such as the Section 410 and 164 programs, that are limited to drivers, 
but did not enact such a limitation in section 154. Accordingly, the 
agencies will not change this element of the requirement in the final 
rule.
    The interim regulations permitted some exceptions to the 
``passenger area of any motor vehicle'' requirement. Specifically, they 
provided that State laws that contained exceptions allowing open 
containers behind the last upright seat or in an area not normally 
occupied by the driver and passengers in a vehicle not equipped with a 
trunk or in locked glove compartments would be permitted under section 
154.
    Advocates argued that the agencies should not permit exceptions 
allowing open containers to be kept behind the last upright seat or in 
an area not normally occupied by the driver or passengers in a vehicle 
not equipped with a trunk. It stated that ``the agencies provide no 
basis for allowing this practice'' and that ``the express language of 
the statute does not permit the agencies to entertain an exception in 
state open container laws for vehicles that are not equipped with a 
trunk.'' Arguing that the only permissible exceptions to the 
``passenger area of any motor vehicle'' requirement were specifically 
identified in the statute, Advocates asserted that ``the agencies are 
not at liberty to enlarge the scope of the exceptions determined by 
Congress' and that ``the statute does not provide any statement that 
vehicles that are not equipped with trunks can be excepted and, 
therefore, the agencies have no authority to permit this practice.''
    As the agencies noted in the interim final rule, prior to the 
issuance of that document, the agencies had reviewed existing State 
open container laws to determine whether they contained any exceptions. 
We determined that a number of States prohibit occupants from 
possessing open alcoholic beverage containers in motor vehicles, but 
provide for an exception when the vehicle is not equipped with a trunk. 
Specifically, 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.
    Although the section 154 statute did not specifically provide for 
such an exception, the agencies did not believe it was Congress' intent 
that the statute be read so literally as to penalize every State whose 
laws contained any exceptions at all. Accordingly, the agencies 
considered whether this exception should be permitted under the 
regulations. Specifically, we considered whether this particular 
exception would render the underlying open container requirement 
unenforceable, so that it would undermine or be wholly inconsistent 
with the purpose of the statute.
    In the agencies' view, an exception that permits open containers 
behind the last upright seat or in an area not normally occupied by the 
driver or passengers in vehicles not equipped with a trunk, addresses a 
legitimate need for storage. In addition, we believe this exception 
would not undermine the purpose of open container laws or render them 
unenforceable, because it would permit open containers only in the 
least accessible place in a vehicle. We continue to believe that such 
exceptions should be permitted.
    Advocates noted that the agencies declined to permit exceptions 
allowing open containers in an unlocked glove compartment and stated 
that ``we fail to see the distinction between the use of a glove 
compartment or the area behind a seat.'' As indicated above, the 
agencies believe that the area behind the last upright seat of a 
vehicle is the area that is least accessible to the driver or 
passengers in a vehicle. By contrast, we believe that an unlocked glove 
compartment is readily accessible to the driver and passengers. We 
decided to permit exceptions for open containers in a locked glove 
compartment because the requirement that the glove compartment be 
locked makes the open container significantly less accessible.
    Accordingly, the agencies do not believe that it is necessary to 
change the interim regulation in response to these comments.
5. Comments Regarding the All Occupants Requirement
    The interim rule indicated that a State's law would be deemed to be 
in compliance with the all occupants requirement if it 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

[[Page 51536]]

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 agencies received three comments indicating that the interim 
final rule was unclear as to whether this exception for passengers in 
house coaches or house trailers is broad enough to cover passengers in 
recreational vehicles (RVs).
    The agencies consider the exception for house coaches and house 
trailers to be broad enough to cover recreational vehicles. We believe 
that the purpose of the exception was to allow passengers in vehicles 
which have living quarters to possess open containers in that area. 
House coaches, house trailers and recreational vehicles all have a 
living quarters area and, accordingly, we believe that passengers in 
the living quarters of recreational vehicles should be permitted to 
possess open containers. During NHTSA's review of State laws and 
proposed legislation, it has determined that laws which permit 
possession and consumption by passengers in the living quarters of 
recreational vehicles comply with the all occupants requirement.
    Accordingly, the agencies do not believe that it is necessary to 
change the interim regulation in response to these comments.
6. Comments Regarding the Public Highway or Right-of-Way Requirement
    Three comments addressed the requirement that a 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. 
In the interim final rule, the agencies 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 comments suggested that the agencies' definition of ``public 
highway or the right-of-way of a public highway'' was too broad. NAGHSR 
suggested that, under the definition of right-of-way in the interim 
final rule, ``picnics and other activities involving a stopped vehicle 
in a roadside park or other public area adjacent to a roadway would all 
be prohibited if alcohol were consumed.'' NAGHSR suggested also that 
``a person in a parked vehicle at a public rest area along a major 
Interstate would be in violation of the law if he or she consumed an 
alcoholic beverage'' and that ``similar activities could be prohibited 
in parked vehicles in public parking lots adjacent to roadways or 
public roadways that have been blocked off under local permit.'' NAGHSR 
concluded that ``there is no legislative history to support such a 
broad interpretation of the statute'' and recommended that ``the 
definition of public right-of-way should be limited only to the entire 
width of the roadway including the shoulders, and that possession or 
consumption in a stopped vehicle should be prohibited only within that 
area.''
    NCSL and Delaware asserted that the right-of-way requirement is not 
justified because it does not involve any impaired driving on a right-
of-way. NCSL and Delaware asserted also that, under the interim final 
rule, picnics and tailgate parties would be prohibited and that the 
regulations would even prohibit a tailgate party where there was a 
designated driver. By contrast, Advocates supported the right-of-way 
requirement.
    The requirement that open container laws apply to a vehicle located 
on public highway or on the right-of-way of a public highway was 
specifically included in the statute. The agencies believe that this 
provision ensures that an individual cannot pull off a highway, drink, 
and get back on the highway and drive impaired. There is nothing in the 
legislative history of section 154 to suggest that the purpose of 
section 154 was limited to preventing a driver from possessing or 
consuming an alcoholic beverage only while driving.
    During NHTSA's review of State laws and proposed legislation, it 
has indicated that we intend the ``right-of-way'' requirement to apply 
to shoulders. While State laws may reach beyond the Federal 
requirements, NHTSA has determined that if a State law covers the 
public highway and the shoulder alongside of it, that is sufficient to 
meet this element of the open container requirements. To clarify the 
agency's position, we have changed the definition of the term ``public 
highway or right-of-way of a public highway'' to reflect this 
determination.
7. Comments Regarding the Timing of Certifications
    The interim final rule provided that, to avoid a transfer of funds 
in FY 2001, the agencies must receive a State's certification no later 
than September 30, 2000, and the certification must indicate that the 
State ``has enacted and is enforcing an open container law that 
conforms to 23 U.S.C. 154 and (the agencies' implementing 
regulations).'' The interim rule indicated that States found in 
noncompliance with the requirements in any fiscal year, once they 
enacted complying legislation and are enforcing the law, must submit a 
certification to that effect before the following fiscal year to avoid 
a transfer of funds in that following fiscal year. The interim rule 
indicated that such certifications must be submitted by October 1 of 
the following fiscal year.
    To avoid confusion, the agencies believe that States should be 
required to submit their certifications by the same date in any fiscal 
year. Accordingly, the agencies have determined that, to avoid a 
transfer of funds in FY 2001 or in any subsequent fiscal year, States 
will be required to submit certifications by September 30.
    The agencies realize that a State could enact a conforming law by 
September 30, and the law could become effective on October 1 of the 
following fiscal year. Accordingly, the agencies have decided to amend 
the regulations to enable such States to avoid a transfer of funds in 
the year in which the State's new law becomes effective. To avoid a 
transfer of funds, they may certify that the State has enacted an open 
container law that conforms to 23 U.S.C. 154 and the agencies' 
implementing regulations and that will become effective and be enforced 
by October 1 of the following fiscal year.
    We note that, since the issuance of the interim final rule, NHTSA 
has reviewed certifications from several States that have not been 
complete. States must include citations to all applicable provisions of 
their law including, for example, citations to the definition of 
alcoholic beverage and other sections of their statute, as well as 
regulations or case law, as applicable.
8. Comments Regarding the Transfer of Funds
    As explained in the interim final rule, 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.
    The interim rule indicated that, in accordance with the statute, 
the 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 drawn evenly from these three sources. The

[[Page 51537]]

transferred funds may come from any one or a combination of the 
apportionments under section 104(b)(1), (3) and (4), as long as the 
total amount meets the statutory requirement.
    One commenter noted that the interim rule did not specify which 
State agency has authority to decide from which category funds should 
be transferred. The agencies believe that, because the decision 
concerning which of the three highway apportionments should lose funds 
solely affects State Department of Transportation (DOT) programs, the 
DOT should have authority to inform the FHWA of any changes in 
distribution. The agencies have added language to the final rule, in 
the section on Transfer of Funds, indicating that on October 1, the 
FHWA will make the transfers based on a proportionate amount, then the 
State's Department of Transportation will be given until October 30 to 
notify the FHWA if they would like to change the distribution among 
sections 104(b)(1), (3) and (4).
    The interim rule indicated that the funds transferred to section 
402 could be used for alcohol-impaired driving countermeasures or 
directed to State and local law enforcement agencies for the 
enforcement of laws prohibiting driving while intoxicated, driving 
under the influence or other related laws or regulations. In addition, 
the interim final rule indicated that States may elect to use all or a 
portion of the transferred funds for hazard elimination activities 
under 23 U.S.C. 152.
    Four commenters noted that the interim final rule did not specify 
which State agency has the authority to determine how transferred funds 
should be used. NAGHSR stated that ``it is unclear whether these 
decisions are state department of transportation decisions, state 
highway safety office decisions, or both.'' Michigan suggested that 
``it should be made clear that all affected state agencies are to 
participate, and that States' decisions may be guided by the traffic-
safety benefit returned by the investment.''
    The agencies have determined that all of the affected State 
agencies should participate in deciding how transferred funds should be 
directed. Accordingly, the agencies have added language to the section 
on Use of Transferred Funds specifying that both the State DOT, which 
will ``lose'' the funds, and the State Highway Safety Office (SHSO), 
which will ``gain'' the funds must jointly decide.
    The State DOT and SHSO officials will provide written notification 
of their funding decisions to the agencies, within 60 days of the 
transfer, identifying the amounts of apportioned funds to be obligated 
to alcohol-impaired driving programs, hazard elimination programs, and 
related planning and administration costs allowable under section 402. 
This process will permit account entries to be made. Joint decision 
making by the DOT and SHSO is the same process required by NHTSA and 
FHWA for other TEA 21 programs in which Congress authorized flexible 
highway safety/highway construction funding choices--the Section 157 
Seat Belt Use Incentive Grant program and the Section 153 .08 BAC Law 
Incentive program.

Regulatory Analyses and Notices

Executive Order 12988 (Civil Justice Reform)

    This 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 a 
transfer of Federal-aid highway construction 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 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. In the interim final rule, the agencies indicated that the 
Section 154 program did not meet the definition of a Federal mandate, 
because the resulting annual expenditures were not expected to exceed 
the $100 million and because the States were not required to enact and 
enforce a conforming open container law.
    NCSL asserted that the rule will result in an unfunded mandate. It 
stated that ``the total cost to the states to enforce these open 
container laws will exceed one hundred million dollars in cost. Even 
the sixteen states that currently have open container laws that 
prohibit the consumption of alcoholic beverages will now have to have 
primary enforcement of an open container law with simple possession as 
a violation.'' NCSL noted that the UMRA requires agencies to prepare a 
written assessment of the anticipated costs and benefits of any 
unfunded Federal mandate and that NHTSA failed to do so. NCSL asserted 
also that NHTSA failed to consult with

[[Page 51538]]

State officials to determine the financial and political ramifications 
of this regulatory proposal.
    The agencies do not believe that the rule will result in an 
unfunded mandate because the Section 154 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. Moreover, the agencies do not believe that the resulting cost to 
States from implementing conforming laws will be over $100 million. 
Prior to the passage of TEA 21, many States already had enacted and 
were enforcing open container laws. Some of these States have amended 
their laws to conform to the new Section 154 requirements, but such 
changes will not result in expenditures of over $100 million. For 
States that did not previously have open container laws, the cost to 
enact such laws will be minimal. There may be some costs to provide 
training to law enforcement or other officials or to educate the public 
about these changes, but these costs are not likely to be significant.
    In the interim final rule, the agencies recommended 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. In addition, the 
agencies advised States to take steps to integrate their open container 
enforcement efforts into their enforcement of other impaired driving 
laws. If States take these steps, the cost to enforce such laws would 
likely be absorbed into the State's overall law enforcement budget 
because the States would not be required to conduct separate 
enforcement efforts to enforce open container laws.
    Accordingly, the agencies do not believe that it is necessary to 
prepare a written assessment of the costs and benefits, or other 
effects of the rule.

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, 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 consideration of the foregoing, the interim final rule published 
in the Federal Register of October 6, 1998, 63 FR 53580, is adopted as 
final, with the following changes:

SUBCHAPTER D--TRANSFER AND SANCTION PROGRAMS

PART 1270--OPEN CONTAINER LAWS

    1. The authority citation for part 1270 continues to read as 
follows:

    Authority: 23 U.S.C. 154; delegation of authority at 49 CFR 1.48 
and 1.50.


Sec. 1270.3  [Amended]

    2. Section 1270.3 is amended by revising paragraph (f) to read as 
follows:
* * * * *
    (f) 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.
* * * * *

    3. Section 1270.5 is amended by revising paragraph (b) to read as 
follows:


Sec. 1270.5  Certification Requirements.

    (a) * * *
    (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.
    (1) If the State's open container law is currently in effect and is 
being enforced, 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 a open 
container law that conforms to the requirements of 23 U.S.C. 154 and 
23 CFR 1270.4, (citations to pertinent State statutes, regulations, 
case law or other binding legal requirements, including definitions, 
as needed).

    (2) If the State's open container law is not currently in effect, 
but will become effective and be enforced by October 1 of the following 
fiscal year, 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 an open container law that 
conforms to the requirements of 23 U.S.C. 154 and 23 CFR 1270.4, 
(citations to pertinent State statutes, regulations, case law or 
other binding legal requirements, including definitions, as needed), 
and will become effective and be enforced as of (effective date of 
the law).
* * * * *

    4. Section 1270.6 is amended by adding paragraph (c) to read as 
follows:


Sec. 1270.6  Transfer of Funds.

* * * * *
    (c) On October 1, the transfers to Section 402 apportionments will 
be made based on proportionate amounts from each of the apportionments 
under Sections 104(b)(1), (b)(3) and (b)(4). Then the State's 
Department of Transportation will be given until October 30 to notify 
FHWA, through the appropriate Division Administrator, if they would 
like to change the distribution among Section 104(b)(1), (b)(3) and 
(b)(4).

    5. Section 1270.7 is amended by redesignating paragraphs (c) 
through (f) as paragraphs (d) through (g) and by a adding new paragraph 
(c) to read as follows:


Sec. 1270.7  Use of Transferred Funds.

* * * * *
    (c) No later than 60 days after the funds are transferred under 
Sec. 1270.6, the Governor's Representative for Highway Safety and the 
Secretary of the State's Department of Transportation for each State 
shall jointly identify, in writing to the appropriate NHTSA 
Administrator and FHWA Division Administrator, how the funds will be 
programmed among alcohol-impaired driving programs, hazard elimination 
programs and planning and administration costs.
* * * * *

    Issued on: August 16, 2000.
Anthony R. Kane,
Executive Director, Federal Highway Administration.
L. Robert Shelton,
Executive Director, National Highway Traffic Safety Administration.
[FR Doc. 00-21564 Filed 8-23-00; 8:45 am]
BILLING CODE 4910-59-P