[Federal Register Volume 87, Number 34 (Friday, February 18, 2022)]
[Proposed Rules]
[Pages 9297-9303]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03172]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 192

[Docket No. FHWA-2020-0015]
RIN 2125-AF93


Drug Offender's Driver's License Suspension

AGENCY: Federal Highway Administration (FHWA), U.S. Department of 
Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: FHWA proposes to amend its regulations governing each State's 
certification of whether they choose to enact and enforce drug 
offender's driver's license requirements or choose to oppose enacting 
or enforcing the drug offender's driver's license requirement. The 
regulations apply to each State and specify the steps that States must 
take to avoid the withholding of Federal-aid highway funds for 
noncompliance with the certification requirements. Highway Safety is 
the top priority of both DOT and FHWA. The changes that FHWA has 
proposed to the regulations will not negatively impact safety, efforts 
to combat substance abuse, or the substantive protections provided by 
the State certification requirements. Rather, they simply update the 
regulations to align with the wording of relevant statutes, increase 
clarity, and reduce administrative burden on States. Reducing 
fatalities and serious injuries resulting from impairment will continue 
to be a top priority of the Department and FHWA.

DATES: Comments must be received on or before March 21, 2022.

ADDRESSES: To ensure that you do not duplicate your docket submissions, 
please submit them by only one of the following means:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting 
comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.
     Hand Delivery: U.S. Department of Transportation, Docket 
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey 
Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays. The telephone number is (202) 
366-9329.
    All submissions should include the agency name and the docket 
number that appears in the heading of this document or the Regulatory 
Identification Number (RIN) for the rulemaking. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal information provided.

FOR FURTHER INFORMATION CONTACT: Ms. Sarah Pascual, Office of Safety, 
(HSA), (202) 366-0087, or via email at [email protected], or Ms. 
Dawn Horan, Office of the Chief Counsel (HCC-30), (202) 366-9615, or 
via email at [email protected]. Office hours are from 8:00 a.m. to 
4:30 p.m., E.T., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    This document and all comments received may be viewed online at 
http://www.regulations.gov using the docket number listed above. 
Electronic retrieval help and guidelines are available on the website. 
It is available 24 hours each day, 365 days each year. An electronic 
copy of this document may also be downloaded from the Office of the 
Federal Register's website at: www.FederalRegister.gov and the 
Government Publishing Office's website at: www.GovInfo.gov.
    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination in the docket at the above address. Comments received 
after the comment closing date will be filed in the docket and will be 
considered to the extent practicable. In addition to late comments, 
FHWA will also continue to file relevant information in the docket as 
it becomes available after the comment period closing date, and 
interested persons should continue to examine the docket for new 
material. A final rule may be published at any time after close of the 
comment period and after DOT has had the opportunity to review the 
comments submitted.

Background

    FHWA is required to withhold an amount equal to 8 percent of the 
amount of Federal-aid highway funds required to be apportioned to any 
State under 23 U.S.C. 104(b)(1) and (2), the National Highway 
Performance Program and the Surface Transportation Block Grant Program, 
respectively, on the first day of each fiscal year if the State fails 
to meet the requirements in 23 U.S.C. 159 associated with the 
revocation or suspension of driver's licenses of individuals convicted 
of drug offenses. The statute (23 U.S.C. 159) provides for two ways the 
States can satisfy this requirement: (1) The State has enacted and is 
enforcing a law that requires in all circumstances, or requires in the 
absence of compelling circumstances warranting an exception, the 
revocation, or suspension for at least 6 months, of the driver's 
license of any individual who is convicted of any violation of the 
Controlled Substances Act \1\ or any drug

[[Page 9298]]

offense; \2\ or (2) the State submits a written certification stating 
that the Governor is opposed to the enactment or enforcement of a law 
involving the revocation, suspension, issuance, or reinstatement of 
driver's licenses to convicted drug offenders and submits written 
certification that the legislature (including both Houses where 
applicable) has adopted a resolution expressing its opposition to a 
law.
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    \1\ The Controlled Substances Act, Public Law 91-513, tit. II, 
84 Stat. 1242 (1970), as amended, is codified at 21 U.S.C. 801 et 
seq.
    \2\ A ``drug offense'' is defined as ``any criminal offense 
which proscribes the possession, distribution, manufacture, 
cultivation, sale, transfer, or the attempt or conspiracy to 
possess, distribute, manufacture, cultivate, sell, or transfer any 
substance the possession of which is prohibited under the Controlled 
Substances Act; or the operation of a motor vehicle under the 
influence of such a substance.'' 23 U.S.C. 159(c)(2).
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    The regulations that implement this law first took effect in 1992. 
The current regulatory language references several administrative and 
fiscal provisions that were only applicable the first year the 
regulation was promulgated. This proposed rulemaking updates the 
administrative and fiscal language to what is currently required of the 
State. The current regulatory language also requires each State to 
annually certify their compliance with 23 U.S.C. 159, which has proved 
burdensome for the States. This proposed rulemaking eliminates the 
annual certification and only requires re-certification when there is a 
change to a State law affecting the State's method of compliance.

Legal Authority and Statement of the Issue

    FHWA is required to withhold an amount equal to 8 percent of the 
amount required to be apportioned to any State under 23 U.S.C. 
104(b)(1) and (2) on the first day of each fiscal year if the State 
fails to meet the requirements in 23 U.S.C. 159 associated with the 
revocation or suspension of driver's licenses of individuals convicted 
of drug offenses. The regulations implementing this law in 23 CFR part 
192 reference administrative and fiscal provisions that were only 
applicable the first year the regulation was promulgated and require 
annual certifications from States. FHWA proposes to revise its 
regulations governing the certification requirements in 23 CFR part 192 
that implement the 23 U.S.C. 159 requirements to update the regulatory 
language and reduce burden on States.

Discussion of General Requirements and Limitations

    Consistent with 23 U.S.C. 159, FHWA is proposing to revise Sec.  
192.4 to update the amount of penalty withholding from 10 to 8 percent 
and update what apportioned funds the withholding applies to by 
changing sections 104(b)(1), 104(b)(3), and 104(b)(5) to sections 
104(b)(1) and (b)(2) of title 23 of the U.S.C. Proposed Sec.  192.4 
also allows for the Governor of the State or their designee to submit a 
written certification through its respective FHWA Division 
Administrator. This provision would result in reduced administrative 
burdens for Governors of the State, including time to obtain written 
signatures on certifications.
    In proposed Sec.  192.5, FHWA sets out new requirements when 
certifications compliant with 23 U.S.C. 159 are required. FHWA proposes 
to require all States to certify to the Secretary of Transportation, 
through their respective FHWA Division Administrator, by a date to be 
determined that it meets the requirements of 23 U.S.C. 159. This 
certification is needed to obtain a baseline from which compliance can 
be determined for all States. Information is requested from States 
regarding how much time is needed to provide a certification compliance 
with 23 U.S.C. 159. Because the timing of the effective date of this 
final rulemaking is unknown relative to existing annual certification 
requirements, FHWA will either provide a timeframe calculated from the 
publication date of the final rule in the Federal Register, or pick a 
date certain depending on the time of publication, but in either case, 
the deadline to certify would not be less than 120 days from the 
publication date of the final rule in the Federal Register. The FHWA is 
further proposing in Sec.  192.5 to require a State to certify to the 
Secretary of Transportation, through its FHWA Division Administrator, 
that it meets the requirements of 23 U.S.C. 159 when there is a change 
to the State law, regulation, or binding policy relating to the 
suspension, revocation, issuance, or reinstatement of driver's licenses 
of drug offenders within 90 days of the effective date of a such a 
change affecting State compliance with 23 U.S.C. 159. FHWA believes 
that States do not often have changes in State laws, regulations, and 
binding policies affecting compliance with 23 U.S.C. 159, and that 
annual certification is redundant and unnecessary. FHWA expects that 
States will continue to monitor State laws, regulations, and policies 
relating to the suspension, revocation, issuance, or reinstatement of 
driver's licenses of drug offenders and continue to notify their 
respective FHWA Division Administrator accordingly. FHWA also proposes 
to amend Sec.  192.5 to update the wording of the certification to be 
consistent with allowing the Governor of the State or the Governor's 
designee to provide certification signatures. Lastly, FHWA also 
proposes to allow submission of electronic copies of signed 
certifications to the FHWA Division Administrator. These changes will 
reduce administrative burden by decreasing the number of submissions of 
original signed certifications.
    FHWA is proposing in Sec.  192.6 to clarify, in accordance with the 
statute, that funds withheld under Sec.  192.4 from apportionment to 
any State will not be available for apportionment to the State and will 
lapse immediately.
    FHWA proposes in Sec.  192.7 to revise the procedures affecting 
States that are in noncompliance with 23 U.S.C. 159. FHWA proposes that 
States that fail to notify FHWA within 90 days of the effective date of 
a change to State law, regulation, or policy that affects State 
compliance with 23 U.S.C. 159, or are found to be in noncompliance 
based on the status of the State's certification, will be advised of 
the funds expected to be withheld under Sec.  192.4 approximately 90 
days before the beginning of the fiscal year for which the penalty 
withholding will be applied. The proposed revisions to Sec.  192.7 also 
allow for a State to submit documentation demonstrating compliance. 
This provision gives a State an opportunity to rectify noncompliance 
prior to funds being withheld.
    As stated, FHWA expects that States do not often change State laws, 
regulations, and binding policies affecting compliance with 23 U.S.C. 
159, and would notify their respective FHWA Division Administrators in 
the event of such changes. Furthermore, the proposed regulation 
continues to allow FHWA to withhold Federal-aid funding, consistent 
with 23 U.S.C. 159, from a non-compliant State in the event the State 
either (1) does not notify FHWA in these circumstances or (2) does not 
provide certification in compliance with 23 U.S.C. 159. Consequently, 
the proposed changes reduce neither safety nor the substantive 
protections provided by 23 U.S.C. 159.
    Finally, FHWA proposes to make minor technical and conforming 
changes in part 192 to align the rule's language with the wording of 
relevant statutes and to promote overall clarity of the rule.
    FHWA requests comments on the proposed rule. FHWA also requests 
comments and information regarding the assumptions used in, and other 
aspects of, the economic analysis of the proposed rule to inform the 
economic analysis at the final rule stage. FHWA presents the economic 
analysis in a

[[Page 9299]]

supporting statement and a spreadsheet found in the rulemaking docket 
(FHWA-2020-0015) and summarizes the analysis under the ``Executive 
Order 12866 (Regulatory Planning and Review), Executive Order 13563 
(Improving Regulation and Regulatory Review), and DOT Rulemaking 
Policies and Procedures'' heading of this preamble.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13563 (Improving Regulation and Regulatory Review), and DOT Rulemaking 
Policies and Procedures

    FHWA has determined that the proposed rule will not be a 
significant regulatory action within the meaning of Executive Order 
(E.O.) 12866 or DOT rulemaking policies and procedures.\3\ This action 
complies with E.O. 12866 and 13563 to improve regulation. FHWA 
anticipates that the proposed rule would not adversely affect, in a 
material way, any sector of the economy. In addition, these changes 
would not interfere with any action taken or planned by another agency 
and would not materially alter the budgetary impact of any 
entitlements, grants, user fees, or loan programs. The proposed rule 
also does not raise any novel legal or policy issues.
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    \3\ See DOT Order 2100.6A, ``Rulemaking and Guidance 
Procedures'' (June 7, 2021).
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    FHWA has determined that this action could generate cost savings, 
measured in 2020 dollars and discounted at 7 percent, expected to total 
$181,812 over 10 years. The present value annualized total is $25,886 
per year.
    The quantified cost savings resulting from this action are 
generated from reducing administrative burdens. The proposed rule will 
reduce the burden on States and FHWA by significantly reducing the 
number of compliance certifications required annually, without 
compromising the intent of the statute.
    Currently, States must certify their compliance with 23 U.S.C. 159 
annually. The proposed rule requires States only notify FHWA of a 
change in type of compliance, instead of recertifying compliance every 
year. Furthermore, the proposed rule will result in additional cost 
savings by allowing the State Governors to appoint a designee to 
certify compliance, instead of requiring the Governor's signature on 
the certification. This change will result in a lower-level of staff 
time needed to complete the certification. Under the proposed rule, the 
States must certify compliance in the first year after the rule takes 
effect. This will be an administrative cost to all 52 States.\4\ 
However, this certification may be made using the new rule, allowing 
the Governor of the State to appoint a designee. Therefore, the costs 
to the States in the first year will still be lower under the proposed 
rule.
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    \4\ 50 States as well as Washington, DC and Puerto Rico.
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    The proposed rule is not expected to affect the number of States in 
compliance with 23 U.S.C. 159. FHWA reports no States out of compliance 
in the last 3 years. Furthermore, in recent years, only one State has 
failed to certify, and this failure is not considered a typical 
occurrence. Based on this current trend, there is no expectation that 
any States will be out of compliance in the future due to the proposed 
rule or otherwise. Therefore, FHWA believes there will be no negative 
social consequences or disbenefits from the proposed rule.
    The proposed rule does not change the current requirement that 
State legislatures must pass a resolution in order to enact a change in 
type of compliance. Therefore, there will be no change in cost for the 
State legislature due to the proposed rule.
    The method for estimating the cost savings from the proposed rule 
is as follows. The analysis uses a base year of 2020 and a 10-year 
analysis period. Estimated wage rates for FHWA employees at division 
offices, who currently process the State certifications, are based on 
2020 General Schedule (GS) Locality Pay Tables.\5\ Estimated wage rates 
for FHWA Headquarters staff, who compile and analyze the certifications 
nationwide, were obtained from the same source using the Washington, 
District of Columbia, locality table. Estimated wages for State 
government employees were obtained from the Bureau of Labor Statistics 
occupational employment statistics for State government employees. 
Lower wages were used in the proposed rule scenario, compared to the 
current regulation, in order to account for the ability of the Governor 
of the State to appoint a designee.\6\ To account for the cost of 
employer provided benefits, all wage rates were multiplied by a factor 
of 1.61.\7\ Wage rates were adjusted using this factor to generate a 
total cost of labor per hour, as seen in Table 1.
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    \5\ 2020 General Schedule (GS) Locality Pay Tables. An average 
GS-12, Step 1 wage was calculated using wages for all localities in 
which there is a FHWA Division Office: https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2020/general-schedule/.
    \6\ BLS May 2019 National Industry-Specific Occupational 
Employment and Wage Estimates NAICS 999200--State Government, 
excluding schools and hospitals (OES Designation). The employees 
expected to work on the certification under the current regulation 
are Top Executives (11-1000). The employees expected to work on the 
certification under the proposed rule are Business Operations 
Specialists (13-1198): https://www.bls.gov/oes/current/naics4_999200.htm. Wage rates were adjusted to 2020 dollars using a 
2.6% adjustment for inflation, which is the 2020 Federal cost of 
living adjustment: https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2020/GS.pdf.
    \7\ BLS Employer Costs for Employee Compensation, June 2020, 
Table 3 (page 5) State and Local Government, State and Local 
Government Workers: https://www.bls.gov/news.release/ecec.t03.htm. 
For this group, 62.2 percent of employee compensation is wages and 
the remainder is the cost of benefits, which suggests factoring 
wages by 1.61 (100%/62.2%) to estimate the total cost of 
compensation.

                       Table 1--Hourly Wage Rates
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                                           Base wage per  Total wage per
                Position                       hour            hour
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FHWA Division Office Staff (GS-12)......          $38.09          $61.33
FHWA Office of Safety Staff (GS-13).....           49.19           79.20
FHWA Office of the Chief Counsel Staff             58.13           93.59
 (GS-14)................................
State Government Top Executives (11-               45.85           75.74
 1000)..................................
State Government Business Operations               33.89           55.98
 Specialists (13-1198)..................
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    For State department of transportation administrative cost savings, 
under current regulation, all 50 States plus the District of Columbia 
and Puerto Rico must submit proof of compliance each year. Under the 
proposed rule, after the first year, only States which change 
compliance type must submit a certification. The estimated time burden

[[Page 9300]]

on the States per certification is 5 hours in both the current and 
proposed rule scenarios. Given that FHWA historically receives 1-4 
changes per year from States, going forward, the analysis assumed two 
compliance changes per year to be processed, after the first year of 
analysis. These changes were assumed to be medium to high level of 
administrative burden for processing by FHWA Division Office employees 
and Headquarters staff.
    Under current regulation, the certification of compliance must be 
signed by the Governor of each State, while under the proposed rule, 
the Governor may appoint a designee. Based on current trends, FHWA 
assumes two States will make a change and submit for certification each 
year, under the proposed rule, with 5 hours of burden per State. 
Furthermore, the estimated wage rate was reduced to account for the 
appointment of a designee by the Governor under the proposed rule. 
Under the proposed rule, all 52 States will spend 5 hours certifying 
compliance in the first year, 2021, at a lower administrative cost due 
to the proposed rule, as seen in Table 2. For all years after the 
initial certification, rather than 52 States spending 5 hours per year 
submitting a certification with the Governor's signature, only 2 States 
will spend 5 hours per year submitting a certification with a 
designee's signature. This resulted in a yearly undiscounted cost 
savings of $19,132 for the States, beginning in 2022, as shown in Table 
2.

                        Table 2--Estimated Change in Administrative Burden on the States
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                                         State administrative     State administrative     Total administrative
                 Year                       cost, current         cost, proposed rule          cost savings
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2021.................................                  $19,692                  $14,555                   $5,137
2022.................................                   19,692                      560                   19,132
2023.................................                   19,692                      560                   19,132
2024.................................                   19,692                      560                   19,132
2025.................................                   19,692                      560                   19,132
2026.................................                   19,692                      560                   19,132
2027.................................                   19,692                      560                   19,132
2028.................................                   19,692                      560                   19,132
2029.................................                   19,692                      560                   19,132
2030.................................                   19,692                      560                   19,132
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    Total............................                  196,918                   19,594                  177,325
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    For FHWA administrative cost savings, under current regulation, 
FHWA receives 52 certifications annually which are processed by both 
the division offices and Headquarters. FHWA estimates that 
approximately 38 of these certifications are a low administrative 
burden (30 minute processing time at the district office), 12 are a 
moderate administrative burden (2.5 hour processing time at the 
district office), and 2 are high administrative burden (20 hour 
processing time at the district office). Calculations assume a GS-12 
wage for FHWA Division Office employees. In addition, under the current 
regulation, each of the 52 certifications is processed for an 
additional 2 hours at Headquarters at the GS-13 and GS-14 levels.
    Under the proposed rule, two certifications per year were assumed, 
at a moderate and high administrative burden, respectively. Wage rates 
were assumed to be the same across the current and proposed rule 
scenarios for FHWA. This resulted in a yearly undiscounted 
administrative cost savings of $9,939 for FHWA, beginning in 2022, as 
shown in Table 3.

                           Table 3--Estimated Change in Administrative Burden on FHWA
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                                         FHWA administrative      FHWA administrative      Total administrative
                 Year                       cost, current         cost, proposed rule          cost savings
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2021.................................                  $12,168                  $12,168                       $0
2022.................................                   12,168                    2,229                    9,939
2023.................................                   12,168                    2,229                    9,939
2024.................................                   12,168                    2,229                    9,939
2025.................................                   12,168                    2,229                    9,939
2026.................................                   12,168                    2,229                    9,939
2027.................................                   12,168                    2,229                    9,939
2028.................................                   12,168                    2,229                    9,939
2029.................................                   12,168                    2,229                    9,939
2030.................................                   12,168                    2,229                    9,939
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    Total............................                  121,680                   32,233                   89,448
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    Total cost savings were calculated by adding the State and FHWA 
administrative cost savings and discounting at 7 percent and 3 percent, 
as seen in Table 4. Overall, the total undiscounted administrative cost 
savings per year are $5,137 in 2021 and $29,071 after 2021. The total 
administrative cost savings over 10 years are $181,812, discounted at 7 
percent and $224,741, discounted at 3 percent.

[[Page 9301]]



                      Table 4--Estimated Administrative Cost Savings From the Proposed Rule
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                                                                  Total administrative     Total administrative
                 Year                    Total administrative        cost savings,            cost savings,
                                             cost savings           discounted at 7%         discounted at 3%
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2021.................................                   $5,137                   $4,801                   $4,987
2022.................................                   29,071                   25,391                   27,402
2023.................................                   29,071                   23,730                   26,604
2024.................................                   29,071                   22,178                   25,829
2025.................................                   29,071                   20,727                   25,077
2026.................................                   29,071                   19,371                   24,346
2027.................................                   29,071                   18,104                   23,637
2028.................................                   29,071                   16,919                   22,949
2029.................................                   29,071                   15,812                   22,280
2030.................................                   29,071                   14,778                   21,631
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    Total............................                  266,772                  181,812                  224,741
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    Overall, the proposed rule would result in a reduced administrative 
burden to both the States and FHWA and lead to cost savings of $181,812 
over 10 years, discounted at 7 percent. As noted above the rule is non-
significant and is not expected to generate any other costs or benefits 
aside from the administrative cost savings.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), FHWA has evaluated the effects of this proposed rule 
on small entities, such as local governments and businesses, and 
anticipates that this action would not have a significant economic 
impact on a substantial number of small entities. The proposed rule 
affects State governments and State governments do not meet the 
definition of a small entity. Therefore, FHWA certifies that the action 
will not have a significant economic impact on a substantial number of 
small entities.

Unfunded Mandates Reform Act of 1995

    FHWA has determined that this proposed rule does not impose 
unfunded mandates as defined by the Unfunded Mandates Reform Act of 
1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). The actions in this 
proposed rule will not result in the expenditure by State, local, and 
Tribal governments, in the aggregate, or by the private sector, of $155 
million or more in any one year (when adjusted for inflation) for 
either State, local, and Tribal governments in the aggregate, or by the 
private sector. In addition, the definition of ``Federal Mandate'' in 
the Unfunded Mandates Reform Act excludes financial assistance of the 
type in which State, local, or Tribal governments have authority to 
adjust their participation in the program in accordance with changes 
made in the program by the Federal Government. The Federal-aid highway 
program permits this type of flexibility.

Executive Order 13132 (Federalism Assessment)

    FHWA has analyzed this proposed rule in accordance with the 
principles and criteria contained in E.O. 13132. FHWA has determined 
that this action would not have sufficient federalism implications to 
warrant the preparation of a federalism assessment. FHWA has also 
determined that this action would not preempt any State law or State 
regulation or affect the States' ability to discharge traditional State 
governmental functions.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental 
consultation on Federal programs and activities do not apply to this 
program.

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. The OMB has renewed 
their approval for information collection entitled ``Drug Offender's 
Driver's License Suspension Certification'' (OMB Control No. 2125-
0579).

National Environmental Policy Act

    The Agency has analyzed this proposed rulemaking action pursuant to 
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) 
and has determined that it is categorically excluded under 23 CFR 
771.117(c)(20), which applies to the promulgation of regulations, and 
that no unusual circumstances are present under 23 CFR 771.117(b). 
Categorically excluded actions meet the criteria for categorical 
exclusions under the Council on Environmental Quality regulations and 
under 23 CFR 771.117(a) and normally do not require any further NEPA 
approvals by FHWA.

Executive Order 13175 (Tribal Consultation)

    FHWA has analyzed this proposed rule under E.O. 13175 and believes 
that it will not have substantial direct effects on one or more Indian 
Tribes, does not impose substantial direct compliance costs on Indian 
Tribal governments, and does not preempt Tribal law. This proposed rule 
does not impose any direct compliance requirements on Indian Tribal 
governments nor does it have any economic or other impacts on the 
viability of Indian Tribes. Therefore, a Tribal summary impact 
statement is not required.

Executive Order 13211 (Energy Effects)

    FHWA has analyzed this proposed rule under E.O. 13211, Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use. FHWA has determined that this action is not a 
significant energy action under the E.O. and is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Therefore, a Statement of Energy Effects is not required.

Executive Order 12898 (Environmental Justice)

    E.O. 12898 requires that each Federal agency make achieving 
environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of its programs, policies, and 
activities on minorities and low-income populations. FHWA has 
determined that

[[Page 9302]]

this proposed rule does not raise any environmental justice issues.

Regulation Identification Number

    A RIN is assigned to each regulatory action listed in the Unified 
Agenda of Federal Regulations. The Regulatory Information Service 
Center publishes the Unified Agenda in April and October of each year. 
The RIN number contained in the heading of this document can be used to 
cross-reference this action with the Unified Agenda.

List of Subjects in 23 CFR Part 192

    Administrative practice and procedure, Drug abuse, Grant programs--
transportation, Highway safety, Reporting and recordkeeping 
requirements.

    Issued under authority delegated in 49 CFR 1.81 and 1.85.
Stephanie Pollack,
Acting Administrator, Federal Highway Administration.


0
In consideration of the foregoing, FHWA proposes to revise 23 CFR part 
192 to read as follows:

    Authority:  23 U.S.C. 159, 315.

PART 192--DRUG OFFENDER'S DRIVER'S LICENSE SUSPENSION

Sec.
192.1 Scope.
192.2 Purpose.
192.3 Definitions.
192.4 Adoption of drug offender's driver's license suspension.
192.5 Certification requirements.
192.6 Period of availability of withheld funds.
192.7 Procedures affecting States in noncompliance.

    Authority:  23 U.S.C. 159, 315.


Sec.  192.1  Scope.

    This part prescribes the requirements necessary to implement 23 
U.S.C. 159, which encourages States to enact and enforce drug 
offender's driver's license suspensions.


Sec.  192.2  Purpose.

    The purpose of this part is to specify the steps that States must 
take to avoid the withholding of Federal-aid highway funds for 
noncompliance with 23 U.S.C. 159.


Sec.  192.3  Definitions.

    As used in this part:
    (a) Convicted includes adjudicated under juvenile proceedings.
    (b) Driver's license means a license issued by a State to any 
individual that authorizes the individual to operate a motor vehicle on 
highways.
    (c) Drug offense means:
    (1) The possession, distribution, manufacture, cultivation, sale, 
transfer, or the attempt or conspiracy to possess, distribute, 
manufacture, cultivate, sell, or transfer any substance the possession 
of which is prohibited under the Controlled Substances Act, or
    (2) The operation of a motor vehicle under the influence of such a 
substance.
    (d) Substance the possession of which is prohibited under the 
Controlled Substances Act or substance means a controlled or 
counterfeit substance, as those terms are defined in subsections 102(6) 
and (7) of the Comprehensive Drug Abuse Prevention and Control Act of 
1970 (21 U.S.C. 802(6) and (7) and listed in 21 CFR 1308.11 through 
1308.15.


Sec.  192.4  Adoption of drug offender's driver's license suspension.

    (a) The Secretary shall withhold 8 percent of the amount required 
to be apportioned to any State under each of sections 104(b)(1) and 
(b)(2) of title 23 of the U.S.C. on the first day of the next fiscal 
year if the State does not meet the requirements of this section.
    (b) A State meets the requirements of this section if:
    (1) The State has enacted and is enforcing a law that requires in 
all circumstances, or requires in the absence of compelling 
circumstances warranting an exception:
    (i) The revocation, or suspension for at least 6 months, of the 
driver's license of any individual who is convicted, after the 
enactment of such law, of
    (A) Any violation of the Controlled Substances Act, or
    (B) Any drug offense, and
    (ii) A delay in the issuance or reinstatement of a driver's license 
to such an individual for at least 6 months after the individual 
otherwise would have been eligible to have a driver's license issued or 
reinstated if the individual does not have a driver's license, or the 
driver's license of the individual is suspended, at the time the 
individual is so convicted, or
    (2) The Governor of the State or their designee:
    (i) Submits to the Secretary through its respective FHWA Division 
Administrator a written certification stating that the Governor is 
opposed to the enactment or enforcement in the State of a law described 
in paragraph (b)(1) of this section relating to the revocation, 
suspension, issuance, or reinstatement of driver's licenses to 
convicted drug offenders; and
    (ii) Submits to the Secretary a written certification that the 
legislature (including both Houses where applicable) has adopted a 
resolution expressing its opposition to a law described in paragraph 
(b)(1) of this section.
    (c) A State that makes exceptions for compelling circumstances must 
do so in accordance with a State law, regulation, binding policy 
directive or statewide published guidelines establishing the conditions 
for making such exceptions and in exceptional circumstances specific to 
the offender.


Sec.  192.5  Certification requirements.

    (a) Each State shall certify to the Secretary by [DATE TO BE 
DETERMINED during development of FINAL RULE] that it meets the 
requirements of 23 U.S.C. 159 and this regulation. Subsequently, each 
State shall certify to the Secretary through its respective FHWA 
Division Administrator that it meets the requirements of 23 U.S.C. 159 
and this regulation when there is a change to the State law, 
regulation, or binding policy relating to the suspension, revocation, 
issuance, or reinstatement or driver's licenses of drug offenders 
within 90 days of the effective date of a State legislative change that 
affects State compliance with this section.
    (b) If the State believes it meets the requirements of 23 U.S.C. 
159 and this regulation on the basis that it has enacted and is 
enforcing a law that suspends or revokes the driver's licenses of drug 
offenders, the certification shall contain a statement by the Governor 
of the State, or their designee, that the State has enacted and is 
enforcing a Drug Offender's Driver's License Suspension law that 
conforms to 23 U.S.C. 159(a)(3)(A). The certifying statement may be 
worded as follows: I, (Name of Governor or designee), (ADD TITLE on 
behalf of the) Governor of the (State or Commonwealth) of __, do hereby 
certify that the (State or Commonwealth) of __, has enacted and is 
enforcing a Drug Offender's Driver's License Suspension law that 
conforms to section 23 U.S.C. 159(a)(3)(A).
    (c) If the State believes it meets the requirements of 23 U.S.C. 
159(a)(3)(B) on the basis that it opposes a law that requires the 
suspension, revocation, or delay in issuance or reinstatement of the 
driver's licenses of drug offenders that conforms to 23 U.S.C. 
159(a)(3)(A), the certification shall contain:
    (1) A statement by the Governor of the State or their designee that 
the Governor is opposed to the enactment or enforcement of a law that 
conforms to 23 U.S.C. 159(a)(3)(A) and that the State legislature has 
adopted a resolution expressing its opposition to such a law. The 
certifying statement may be worded

[[Page 9303]]

as follows: I, (Name of Governor or designee), (ADD TITLE on behalf of 
the) Governor of the (State or Commonwealth) of __, do hereby certify 
that I am opposed to the enactment or enforcement of a law that 
conforms to 23 U.S.C. 159(a)(3)(A) and that the legislature of the 
(State or Commonwealth) of __, has adopted a resolution expressing its 
opposition to such a law.
    (2) Until a State has been determined to be in compliance with the 
requirements of 23 U.S.C. 159(a)(3)(B) and this regulation, the 
certification shall include a copy of the resolution.
    (d) The Governor or their designee shall submit an electric copy of 
the certification to its respective FHWA Division Administrator. The 
FHWA Division Administrator shall retain an electronic copy and forward 
an electronic copy to both the FHWA Office of Safety and the FHWA 
Office of the Chief Counsel.
    (e) Any changes to the certification or supplemental information 
necessitated by the review of the certifications as they are forwarded, 
State legislative changes that affects State compliance of this 
section, or changes in State enforcement activity shall be submitted 
within 90 days of the change being effective.


Sec.  192.6  Period of availability of withheld funds.

    Funds withheld under Sec.  192.4 from apportionment to any State 
will not be available for apportionment to the State and shall lapse 
immediately.


Sec.  192.7   Procedures affecting States in noncompliance.

    (a) If FHWA determines that the State is not in compliance with 23 
U.S.C. 159(a)(3), the State will be advised of the funds expected to be 
withheld under Sec.  192.4 from apportionment, as part of the advance 
notice of apportionments required under 23 U.S.C. 104(e). This 
notification will normally occur not later than 90 days before the 
beginning of the fiscal year for which the sums to be apportioned are 
authorized. The State may, within 30 days of its receipt of the advance 
notice of apportionments, submit documentation demonstrating its 
compliance. Documentation shall be submitted electronically to the FHWA 
Division Administrator for that State. The FHWA Division Administrator 
shall retain an electronic copy and forward an electronic copy to both 
the FHWA Office of Safety and the FHWA Office of the Chief Counsel.
    (b) Each fiscal year, each State determined not to be in compliance 
with 23 U.S.C. 159(a)(3), based on FHWA's final determination, will 
receive notice of the funds being withheld under Sec.  192.4 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.

[FR Doc. 2022-03172 Filed 2-17-22; 8:45 am]
BILLING CODE 4910-22-P