[Federal Register Volume 87, Number 195 (Tuesday, October 11, 2022)]
[Rules and Regulations]
[Pages 61238-61244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21722]


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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: Final rule.

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SUMMARY: FHWA amends its regulation 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 
regulation applies to each State and specifies the steps that States 
must take

[[Page 61239]]

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 is making to the regulation 
will not negatively impact safety, efforts to combat substance abuse, 
or the substantive protections provided by the State certification 
requirements. Rather, they update the regulation to align with the 
wording of the relevant statute, increase clarity, and reduce 
administrative burden on States. Reducing fatalities and serious 
injuries will continue to be a top priority of the Department and FHWA.

DATES: This rule is effective November 10, 2022.

ADDRESSES: This document, the Notice of Proposed Rulemaking (NPRM), the 
supporting economic analysis, and the public comments received may be 
viewed online through the Federal eRulemaking portal at: 
www.regulations.gov. 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.

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:

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 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 regulation that implements 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 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 and inefficient for the States. This rulemaking eliminates 
the annual certification and requires re-certification only when there 
is a change to a State law affecting the State's method of compliance 
and allows for a designee of the Governor to sign the certification on 
behalf of the State.

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 regulation implementing this law in 23 CFR part 
192 references administrative and fiscal provisions that were only 
applicable the first year the regulation was promulgated and requires 
annual certifications from States. FHWA is revising its regulation 
governing the certification requirements in 23 CFR part 192 that 
implement the 23 U.S.C. 159 requirements to update the regulatory 
language and streamline the certification process for States.
    FHWA published its NPRM on February 18, 2022 (87 FR 9297), seeking 
public comment on proposed revisions to its regulation governing the 
suspension of driver's licenses for drug offenders. FHWA received nine 
public comment submissions. Commenters included agencies from two 
States with the remaining being individuals. After carefully 
considering the comments received in response to the NPRM in light of 
the statutory requirements, FHWA is promulgating the final regulation 
adopting the changes set forth in the NPRM as proposed.

Overview of the Final Rule

    Consistent with a change made to 23 U.S.C. 159 in the Moving Ahead 
for Progress in the 21st Century Act (Pub. L. 112-141) (MAP-21), FHWA 
is revising Sec.  192.4 to update the amount of penalty withholding 
from 10 to 8 percent and updating what apportioned funds the 
withholding applies to by changing reference to 23 U.S.C. 104(b)(1), 
104(b)(3), and 104(b)(5) to 23 U.S.C. 104(b)(1) and (b)(2). The updated 
Sec.  192.4 now also allows a designee of the Governor of the State to 
submit a written certification through its respective FHWA Division 
Administrator. This provision will result in reduced administrative 
burdens for Governors of the State, including time to obtain written 
signatures on certifications.
    In Sec.  192.5, FHWA sets new requirements for when certifications 
compliant with 23 U.S.C. 159 are required. FHWA requires all States to 
certify to the Secretary of Transportation, through their respective 
FHWA Division Administrator, by January 1, 2023, that it meets the 
requirements of 23 U.S.C. 159. This certification will establish a 
baseline from which compliance can be determined for all States. FHWA 
is now requiring in Sec.  192.5 that a State certify to the Secretary 
of Transportation, through its FHWA Division Administrator, that it 
meets the requirements of 23 U.S.C. 159 only 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

[[Page 61240]]

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 amends 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 allows 
submission of electronic copies of signed certifications to the FHWA 
Division Administrator. These changes increase efficiency by decreasing 
the number of submissions of original signed certifications.
    FHWA clarifies in Sec.  192.6, 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 revises Sec.  192.7 with respect to the procedures affecting 
States that are in noncompliance with 23 U.S.C. 159. FHWA will require 
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 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 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 
changes reduce neither safety nor the substantive protections provided 
by 23 U.S.C. 159.
    Finally, FHWA is making 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 presents the economic analysis in a supporting statement and a 
spreadsheet found in the rulemaking docket (FHWA-2020-0015) and 
summarizes the analysis under ``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.

Response to Comments Received

    FHWA received nine public comment submissions in response to the 
NPRM. Commenters included the Department of Transportation and the 
Bureau of Motor Vehicles from one State in a combined comment, one 
State Motor Vehicles Division, and seven individuals. Six of the nine 
comments made specific statements of support for the changes in the 
regulation as outlined in the NPRM. One of the State commenters stated 
they were highly supportive of the changes.
    Four comments directly referenced the reduced administrative burden 
on States if the NPRM was to be implemented and agreed with that 
statement. One of the State commenters indicated that the changes 
``will greatly reduce the administrative obligation mandated within the 
current certification requirements.'' Two commenters agreed that this 
action would not compromise safety on our Nation's roads.
    Several commenters provided their view of the statute. Since this 
rule is the implementation of the statute, FHWA cannot respond to 
statements of support or disagreement regarding the statute itself.
    There were no comments submitted that expressed any disagreement 
with any of the proposed changes in this regulation as described in the 
NPRM. As a result, FHWA adopts the changes set forth in the NPRM as 
proposed.

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

    The Office of Information and Regulatory Affairs within the Office 
of Management and Budget (OMB) has determined that this rulemaking is 
not a significant regulatory action under section 3(f) of Executive 
Order (E.O.) 12866. Accordingly, OMB has not reviewed it under that 
E.O. This action complies with E.O. 12866 and 13563 to improve 
regulation. FHWA anticipates that the 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 rule also does 
not raise any novel legal or policy issues.
    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 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 rule requires States only notify FHWA of a change in the 
type of compliance, instead of recertifying compliance every year. 
Furthermore, the 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 rule, the States must 
certify compliance in the first year after the rule takes effect to 
establish a baseline. This will be an administrative cost to all 52 
States.\3\ 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 
rule.
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    \3\ 50 States as well as Washington, DC, and Puerto Rico.
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    The 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 rule or 
otherwise. Therefore, FHWA believes there will be no negative social 
consequences or disbenefits from the rule.
    The rule does not change the current requirement that State 
legislatures must pass a resolution in order to enact a change in type 
of compliance.

[[Page 61241]]

Therefore, there will be no change in cost for the State legislature 
due to the rule.
    The method for estimating the cost savings from the 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.\4\ Estimated wage rates for 
FHWA Headquarters (HQ) 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 rule scenario, compared to the 
current regulation, in order to account for the ability of the Governor 
of the State to appoint a designee.\5\ To account for the cost of 
employer provided benefits, all wage rates were multiplied by a factor 
of 1.61.\6\ 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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    \4\ 2020 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/.
    \5\ 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 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.
    \6\ 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 percent/62.2 percent) 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 
rule, after the first year, only States which change compliance type 
must submit a certification. The estimated time burden on the States 
per certification is 5 hours in both the current and new 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 HQ staff.
    Under current regulation, the certification of compliance must be 
signed by the Governor of each State, while under the new 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 new 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 new rule. Under the rule, all 52 
States will spend 5 hours certifying compliance in the first year, 
2021, at a lower administrative cost due to the 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              State              Total
                          Year                             administrative     administrative     administrative
                                                           cost, current      cost, new 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
                                                        --------------------------------------------------------
    Total..............................................            196,918             19,594            177,325
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[[Page 61242]]

    For FHWA administrative cost savings, under current regulation, 
FHWA receives 52 certifications annually which are processed by both 
the division offices and HQ. 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 
HQ at the GS-13 and GS-14 levels.
    Under the 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 new rule scenarios for 
FHWA. This will result 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               FHWA              Total
                          Year                             administrative     administrative     administrative
                                                           cost, current      cost, new 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
                                                        --------------------------------------------------------
    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.

                          Table 4--Estimated Administrative Cost Savings From the Rule
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                                                                                  Total              Total
                                                               Total          administrative     administrative
                          Year                             administrative     cost savings,      cost savings,
                                                            cost savings     discounted at 7%   discounted at 3%
----------------------------------------------------------------------------------------------------------------
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
                                                        --------------------------------------------------------
    Total..............................................            266,772            181,812            224,741
----------------------------------------------------------------------------------------------------------------

    Overall, the rule will 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 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 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 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 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

[[Page 61243]]

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 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 will 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 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 rulemaking action pursuant to the 
National Environmental Policy Act (NEPA) 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 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 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 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 this rule does not raise any environmental justice 
issues.

Regulation Identification Number (RIN)

    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 revises part 192 of Title 23 of 
the CFR as follows:

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-.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

[[Page 61244]]

    (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 January 1, 2023, 
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 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 electronic 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. 2022-21722 Filed 10-7-22; 8:45 am]
BILLING CODE 4910-22-P