[Federal Register Volume 84, Number 27 (Friday, February 8, 2019)]
[Rules and Regulations]
[Pages 2731-2734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01647]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

Federal Highway Administration

23 CFR Parts 1270 and 1275

[Docket No. NHTSA-2016-0099]
RIN 2127-AL45


Transfer and Sanction Programs

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

ACTION: Final rule.

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SUMMARY: This final rule responds to comments received on the interim 
final rule published September 30, 2016, and makes minor clarifications 
to the Federal implementing regulations for the Section 154 (Open 
Container) and Section 164 (Repeat Intoxicated Driver) programs.

DATES: This final rule is effective on March 11, 2019.

ADDRESSES: For access to the docket to read comments received, go to 
http://www.regulations.gov and search for docket number NHTSA-2016-
0099.

FOR FURTHER INFORMATION CONTACT: 
    NHTSA: For program issues: Barbara Sauers, Director, Office of 
Grants Management and Operations, Telephone number: (202) 366-0144, 
Email: [email protected]. For legal issues: Russell Krupen, 
Attorney Advisor, Office of the Chief Counsel, Telephone number: (202) 
366-1834, Email: [email protected]; Facsimile: (202) 366-3820.
    FHWA: For program issues: Dana Gigliotti, Team Leader, Safety 
Programs Implementation Team, Office of Safety Programs, Telephone 
number: (202) 366-1290, Email: [email protected]. For legal 
issues: Dawn Horan, Attorney Advisor, Office of the Chief Counsel, 
Telephone number: (202) 366-9615, Email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Introduction

    The Fixing America's Surface Transportation Act (FAST Act), Public 
Law 114-94, amended 23 U.S.C. 154 (Section 154) and 23 U.S.C. 164 
(Section 164), which address the serious national problems of impaired 
driving by encouraging States to meet minimum standards for their open 
container laws and repeat intoxicated driver laws. Under Section 154, 
to avoid the transfer of funds, a State must enact and enforce an open 
container law ``that prohibits the possession of any open alcoholic 
beverage container, or the consumption of any alcoholic beverage, in 
the passenger area of any motor vehicle (including possession or 
consumption by the driver of the vehicle) located on a public highway, 
or the right-of-way of a public highway, in the State.'' 23 U.S.C. 
154(b)(1). Under Section 164, to avoid the transfer of funds, a State 
must enact and enforce a repeat intoxicated driver law that 
establishes, at minimum, certain specified penalties for second and 
subsequent convictions of driving while intoxicated or driving under 
the influence. 23 U.S.C. 164(a)(5). All 50 States, the District of 
Columbia, and Puerto Rico are considered to be ``States'' for the 
purposes of these programs.
    The National Highway Traffic Safety Administration (NHTSA) and the 
Federal Highway Administration (FHWA) (``the agencies'') jointly issued 
an interim final rule (IFR), with immediate effectiveness, on September 
30, 2016, (81 FR 67158) to ensure that States received instructions 
that were important to the compliance determinations made on October 1, 
2016, when the changes in the FAST Act became effective. The IFR 
amended the Federal implementing regulations for Section 154 at 23 CFR 
part 1270 and Section 164 at 23 CFR part 1275 to reflect the changed 
requirements from the Federal legislation. At the same time, the 
agencies updated the regulations to improve clarity, codify 
longstanding interpretation of the statutes and implementing 
regulations, and streamline procedures for States. The agencies sought 
public comment to inform the promulgation of a final rule. This action 
addresses the comments received and makes minor changes to the Federal 
implementing regulations.

II. Summary of the Interim Final Rule

    The IFR implemented the new compliance provisions of the FAST Act 
and also updated the rules to incorporate prior statutory changes from 
the Moving Ahead for Progress in the 21st Century Act (MAP-21), Public 
Law 112-141 (enacted July 6, 2012), and the SAFETEA-LU Technical 
Corrections Act of 2008, Public Law 110-244 (enacted June 6, 2008). The 
preamble to the IFR also provided additional information regarding the 
programs, and the agencies encourage States to review it in conjunction 
with this preamble and the final implementing regulations.
    Some of the revisions in the IFR to the Section 154 and Section 164 
implementing regulations in 23 CFR parts 1270 and 1275 were made simply 
to allow States to better understand the programs and attain and 
maintain compliance. These revisions did not substantively amend the 
compliance requirements of the programs. Such revisions included 
amending or adding definitions, clarifying and broadening permitted 
exceptions in the Section 154 program, and making technical corrections 
as necessary.
    Because the FAST Act significantly amended the compliance criteria 
for the Section 164 program, the IFR also made conforming revisions to 
the Section 164 implementing regulations in 23 CFR part 1275. The IFR 
implemented the revised one-year license sanction requirement, allowing 
States three

[[Page 2732]]

options for repeat offenders: suspension of all driving privileges, 
restriction to operating only motor vehicles with an ignition interlock 
device installed (allowing for limited employment and medical 
exceptions), or participation in and compliance with a 24-7 sobriety 
program. It eliminated the vehicle sanction requirement, which was 
repealed by the FAST Act, but made no changes to the assessment and 
treatment requirement, which has not changed since its inception. 
Finally, it made two changes to the minimum sentence requirement: 
clarifying the hour-equivalents for days served in imprisonment or 
community service and implementing the annual ``general practice'' 
certification option for incarceration in lieu of having a compliant 
mandatory minimum sentence. With regard to the latter, a State may 
certify for a second offender that its ``general practice is that such 
an individual will be incarcerated'' and for a third or subsequent 
offender that its ``general practice is that such an individual will 
receive 10 days of incarceration.'' 23 U.S.C. 164(a)(5)(C)(i)-(ii). To 
meet the statutory standard of ``general practice,'' the IFR requires a 
State to certify that 75 percent of repeat offenders are subject to 
mandatory incarceration for the minimum sentences specified for the 
calendar year immediately prior to the certification.
    Finally, the IFR updated the non-compliance penalties and 
procedures in the regulations to reflect amendments made to the Federal 
statutes by the SAFETEA-LU Technical Corrections Act and MAP-21. The 
IFR also reorganized the regulations to improve clarity, streamlined 
some of the procedures that apply to States, reduced paperwork burdens, 
and better aligned the regulations with the longstanding administrative 
practices under the programs.

III. Public Comments on the Interim Final Rule

    The agencies received only two comments on the IFR: one addressing 
Section 154 (anonymous commenter; NHTSA-2016-0099-0002) and one 
addressing Section 164 (Transportation Departments of Idaho, Montana, 
North Dakota, South Dakota, and Wyoming [``State DOTs'']; NHTSA-2016-
0099-0003).
    The anonymous commenter requested that the final rule ``provide 
more information about the exceptions to locations of an open container 
within the vehicle.'' Specifically, the commenter wanted more 
information about ``vehicles without the typical trunk that have no 
cover for the hatch in the back . . . because it could possibly be 
accessible to a determined passenger and potentially lead me to severe 
penalties.'' Open container laws differ significantly from State to 
State. Therefore, the commenter should consult the law of the 
particular State to determine enforcement details and penalties. 
However, for purpose of compliance with Section 154, a State may allow 
possession of an open alcoholic beverage container ``in a locked 
container (such as a locked glove compartment), or, in a motor vehicle 
that is not equipped with a trunk, either behind the last upright seat 
or in an area not normally occupied by the driver or a passenger.'' 23 
CFR 1270.4(d)(1). A State would not be determined to be out of 
compliance with Section 154 if it allows an open container to be 
possessed in the area behind the last upright seat in a hatchback-style 
vehicle, regardless of whether that area is covered. The agencies are 
making no changes in this final rule in response to this comment.
    The State DOTs requested greater flexibility in the ``general 
practice'' certification, allowing for approaches other than 75 percent 
incarceration during the calendar year prior to the date of 
certification. The commenters cite to the following statement from 
Senator John Thune during the Senate floor debate: ``This provision is 
intended to allow States to certify the general practice on minimum 
penalties which can meet the definition under the repeat offender law, 
and we expect that NHTSA should reasonably defer to a State's analysis 
underpinning such a certification.'' 161 Congressional Record S8359 
(December 3, 2015, daily ed.). The State DOTs requested that States be 
permitted to certify with percentages as low as 51 percent, 
particularly ``if there is evidence of a trend of an increasing 
percentage or other relevant information provided by the State.''
    The agencies do not believe it is appropriate to accept 
certifications on the basis of 51 percent of repeat offenders receiving 
the statutorily required penalties, as this essentially renders the 
practice ``as likely as not'' and does not establish a ``general 
practice,'' as specified in the statute. The pre-enactment statement in 
floor debate does not serve to change the meaning of that statutory 
term. The agencies continue to believe that 75 percent provides a 
reasonable and appropriate balance between flexibility and mandatory 
minimum sentences for 100 percent of offenders (as required for States 
complying on the basis of their law, rather than a ``general practice'' 
certification). We note that NHTSA did, in fact, defer to States' 
analyses of their own incarceration data underpinning their ``general 
practice'' certifications for fiscal year 2017, 2018, and 2019 
submissions when they certified to meeting the 75 percent requirement. 
The agencies are making no changes in this final rule in response to 
this comment.

IV. Revisions in the Final Rule

    The agencies are making two revisions in this final rule. The first 
relates to the opportunity for States determined to be non-compliant 
with either Section 154 or Section 164 to submit documentation showing 
why they are compliant. In the IFR, the agencies gave States 30 days 
from the date of issuance of the notice of apportionments under 23 
U.S.C. 104(e) by FHWA, which normally occurs on October 1, to submit 
this documentation. 23 CFR 1270.8(b) and 1275.8(b). However, the 
agencies tied the deadlines for submission of ``shift'' and ``split'' 
letters to 30 and 60 days, respectively, from the date ``the funds are 
reserved.'' \1\ 23 CFR 1270.6(b), 1270.7(a), 1275.6(b), and 1275.7(a). 
Although the date of issuance of the notice of apportionments and the 
reservation of funds is normally the same, in some years FHWA has 
rescinded and subsequently reissued the notice of apportionments. The 
agencies do not intend to grant an extension of time for submission of 
additional documentation or ``shift'' and ``split'' letters in the 
event of such a reissuance, as the State will already have been on 
notice of its non-compliance for the fiscal year because of the 
original reservation of funds. To eliminate confusion and align these 
deadlines, the agencies are amending the Section 154 and Section 164 
regulations to require submission of any additional documentation 
within ``30 days from the date the funds are reserved.''
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    \1\ While all non-compliant States are required to submit 
``split'' letters to receive the reserved funds (see 23 CFR 
1270.7(a) and 1275.7(a)), submission of ``shift'' letters by non-
compliant States is optional (see 23 CFR 1270.6(b) and 1275.6(b)). 
If FHWA does not receive a ``shift'' letter from a non-compliant 
State, the default reservation of funds (based on proportionate 
amounts from each of the apportionments under 23 U.S.C. 104(b)(1) 
and (b)(2)) will remain.
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    The second relates to the ``special exception'' to interlock use 
under Section 164 for individuals certified by a medical doctor as 
being unable to provide a deep lung breath sample for analysis by an 
ignition interlock device. The agencies are changing ``certified by a 
medical doctor'' to ``certified in writing by a physician'' to align 
with NHTSA's implementing regulations for

[[Page 2733]]

23 U.S.C. 405(d)(6)(F)(ii). See 23 CFR 1300.23(g)(2)(ii). The agencies 
believe a certification, by definition, must be in writing. Because the 
statutory language underlying the special exception in Section 164 is 
identical to the exception permitted in NHTSA's Grants to States with 
Alcohol-Ignition Interlock Laws program, and the agency's regulatory 
language in that program also was subject to public notice and comment, 
it is appropriate to bring the language of the Section 164 implementing 
regulations into alignment with that program.

V. Effective Date and Future Actions

    The agencies issued the IFR with an immediate effective date to 
ensure that States received instructions that were important to 
compliance determinations made on October 1, 2016, as the changes in 
the FAST Act became effective on that date. The effective date for this 
final rule is March 11, 2019. This final rule has no effect on 
determinations made on October 1, 2018, for Federal fiscal year 2019.
    NHTSA and FHWA are committed to ensuring transparency in the 
administration of these programs and maintaining open and active 
communication with States. For example, the agencies will continue to 
notify States of potential non-compliance issues for the forthcoming 
fiscal year in FHWA's advance notification of apportionment, normally 
issued 90 days prior to the official apportionment notice, if such 
information is available to the agencies at that time. The agencies 
will also notify States at other points throughout the year if they 
become aware of potential non-compliance issues. However, to provide 
this information in a timely fashion for States to react as 
appropriate, the agencies continue to rely upon States for prompt 
notification of changes in their laws. See, e.g., 23 CFR 1270.9(b) and 
1275.9(b). Although the regulations require a State to ``promptly 
notify'' the appropriate NHTSA Regional Administrator in writing only 
of any actual change or change in enforcement of the law, States are 
invited also to submit prospective changes (e.g., pending legislation) 
to NHTSA throughout the year for a preliminary review of their impact 
on compliance.
    In addition, the agencies recognize that States would benefit from 
receiving more information from the agencies regarding compliance 
requirements, procedures, and relevant points of contact. NHTSA and 
FHWA are exploring ways to improve the availability of information on 
the programs for States to better allow them to obtain and maintain 
compliance, and we are committed to rolling these improvements out in 
the coming months. The agencies invite States to provide suggestions on 
how we can improve transparency by contacting the individuals listed in 
FOR FURTHER INFORMATION CONTACT above.

VI. Regulatory Analyses and Notices

A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 
13563, and DOT Regulatory Policies and Procedures

    NHTSA and FHWA have considered the impact of this rulemaking action 
under Executive Order 12866, Executive Order 13563, and the Department 
of Transportation's regulatory policies and procedures. This rulemaking 
document was not reviewed under Executive Order 12866 or Executive 
Order 13563. This rule will only affect the compliance status of a very 
small handful of States and will therefore affect far less than $100 
million annually. Whether a State chooses to enact a compliant law or 
make a certification is dependent on many variables, and cannot be 
linked with specificity to the issuance of this rule. States choose 
whether to enact and enforce compliant laws, thereby complying with the 
programs. If a State chooses not to enact and enforce a conforming law, 
its funds are conditioned, but not withheld. Accordingly, the total 
amount of funding provided to each State does not change. The costs to 
States associated with this rule are minimal (e.g., passing and 
enforcing alcohol impaired driving laws) and are expected to be offset 
by resulting highway safety benefits. Therefore, this rulemaking has 
been determined to be not ``significant'' under the Department of 
Transportation's regulatory policies and procedures and the policies of 
the Office of Management and Budget.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601 et seq.) 
requires agencies to evaluate the potential effects of their proposed 
and final rules on small businesses, small organizations, and small 
governmental jurisdictions. Section 605 of the RFA allows an agency to 
certify a rule, in lieu of preparing an analysis, if the proposed 
rulemaking is not expected to have a significant economic impact on a 
substantial number of small entities. The Small Business Regulatory 
Enforcement Fairness Act (SBREFA) amended the RFA to require Federal 
agencies to provide a statement of the factual basis for certifying 
that an action would not have a significant economic impact on a 
substantial number of small entities.
    This final rule updates the Section 154 and Section 164 
implementing regulations based on recent Federal legislation. The 
requirements of these programs only affect State governments, which are 
not considered to be small entities as that term is defined by the RFA. 
Therefore, we certify that this action will not have a significant 
impact on a substantial number of small entities and find that the 
preparation of a Regulatory Flexibility Analysis is unnecessary.

C. Executive Order 13132 (Federalism)

    Executive Order 13132 on ``federalism'' requires the agencies to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' 64 FR 43255 (August 10, 1999). 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, an agency may not issue a regulation with 
Federalism implications that imposes substantial direct compliance 
costs and that is not required by statute unless the Federal government 
provides the funds necessary to pay the direct compliance costs 
incurred by State and local governments or the agency consults with 
State and local governments in the process of developing the proposed 
regulation. An agency also may not issue a regulation with federalism 
implications that preempts a State law without consulting with State 
and local officials.
    The agencies have analyzed this rulemaking action in accordance 
with the principles and criteria set forth in Executive Order 13132, 
and have determined that this final rule would not have sufficient 
federalism implications as defined in the order to warrant formal 
consultation with State and local officials or the preparation of a 
Federalism summary impact statement. However, the agencies continue to 
engage with State representatives regarding general implementation of 
the FAST Act, including these programs, and expects to continue these 
informal dialogues.

[[Page 2734]]

D. Executive Order 12988 (Civil Justice Reform)

    Pursuant to Executive Order 12988 (61 FR 4729 (February 7, 1996)), 
``Civil Justice Reform,'' the agencies have considered whether this 
rule would have any retroactive effect. We conclude that it would not 
have any retroactive or preemptive effect, and judicial review of it 
may be obtained pursuant to 5 U.S.C. 702. That section does not require 
that a petition for reconsideration be filed prior to seeking judicial 
review. This action meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

E. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. This rulemaking would 
not establish any new information collection requirements.

F. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires 
agencies to prepare a written assessment of the costs, benefits, and 
other effects of proposed or final rules that include a Federal mandate 
likely to result in expenditures by State, local or tribal governments, 
in the aggregate, or by the private sector, of more than $100 million 
annually (adjusted annually for inflation with base year of 1995). This 
final rule would not meet the definition of a Federal mandate because 
the resulting annual State expenditures to comply with the programs 
would not exceed the minimum threshold.

G. National Environmental Policy Act

    NHTSA has considered the impacts of this rulemaking action for the 
purposes of the National Environmental Policy Act of 1969 (NEPA) (42 
U.S.C. 4321-4347). The agency has determined that this rulemaking would 
not have a significant impact on the quality of the human environment. 
FHWA has analyzed this action for the purposes of NEPA and has 
determined that it would not have any effect on the quality of the 
environment and meets the criteria for the categorical exclusion at 23 
CFR 771.117(c)(20).

H. Executive Order 13175 (Consultation and Coordination With Indian 
Tribes)

    The agencies have analyzed this IFR under Executive Order 13175, 
and have determined that this action would not have a substantial 
direct effect on one or more Indian tribes, would not impose 
substantial direct compliance costs on Indian tribal governments, and 
would not preempt tribal law. Therefore, a tribal summary impact 
statement is not required.

I. Regulatory Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier 
number (RIN) to each regulatory action listed in the Unified Agenda of 
Regulatory and Deregulatory Actions. The Regulatory Information Service 
Center publishes the Unified Agenda in or about April and October of 
each year. You may use the RIN contained in the heading at the 
beginning of this document to find this action in the Unified Agenda.

J. Privacy Act

    Please note that anyone is able to search the electronic form of 
all comments received into any of our dockets by the name of the 
individual submitting the comment (or signing the comment, if submitted 
on behalf of an association, business, labor union, etc.). You may 
review DOT's complete Privacy Act Statement in the Federal Register 
published on April 11, 2000 (65 FR 19477) or you may visit http://dms.dot.gov.

    Authority: 23 U.S.C. 154 and 164; delegation of authority at 49 
CFR 1.85 and 1.95.

List of Subjects in 23 CFR Parts 1270 and 1275

    Alcohol abuse, Highway safety, Intergovernmental relations, 
Reservation and transfer programs--transportation.

    For the reasons discussed in the preamble, under the authority of 
23 U.S.C. 154 and 164, the National Highway Traffic Safety 
Administration and the Federal Highway Administration amend 23 CFR 
chapter II as follows:

PART 1270--OPEN CONTAINER LAWS

0
1. The authority citation for part 1270 continues to read as follows:

    Authority: 23 U.S.C. 154; delegation of authority at 49 CFR 1.85 
and 1.95.


0
2. Amend Sec.  1270.8 by revising the first sentence of paragraph (b) 
to read as follows:


Sec.  1270.8  Procedures affecting States in noncompliance.

* * * * *
    (b) Each State whose funds are reserved under Sec.  1270.6 will be 
afforded 30 days from the date the funds are reserved to submit 
documentation showing why it is in compliance. * * *

PART 1275--REPEAT INTOXICATED DRIVER LAWS

0
3. The authority citation for part 1275 continues to read as follows:

    Authority: 23 U.S.C. 164; delegation of authority at 49 CFR 1.85 
and 1.95.


0
4. Amend Sec.  1275.4 by revising paragraph (b)(2) to read as follows:


Sec.  1275.4  Compliance criteria.

* * * * *
    (b) * * *
    (2) The individual is certified in writing by a physician as being 
unable to provide a deep lung breath sample for analysis by an ignition 
interlock device.

0
5. Amend Sec.  1275.8 by revising the first sentence of paragraph (b) 
to read as follows:


Sec.  1275.8  Procedures affecting States in noncompliance.

* * * * *
    (b) Each State whose funds are reserved under Sec.  1275.6 will be 
afforded 30 days from the date the funds are reserved to submit 
documentation showing why it is in compliance (which may include a 
``general practice'' certification under Sec.  1275.5). * * *

    Issued in Washington, DC, on: February 1, 2019.

    Under authority delegated in 49 CFR 1.95 and 501.5.
Heidi R. King,
Deputy Administrator, National Highway Traffic Safety Administration.
    Issued in Washington, DC, on: February 1, 2019.

    Under authority delegated in 49 CFR 1.85.
Brandye L. Hendrickson,
Deputy Administrator, Federal Highway Administration.
[FR Doc. 2019-01647 Filed 2-7-19; 8:45 am]
 BILLING CODE 4910-59-P