81_FR_67348 81 FR 67158 - Regulatory Update of Transfer and Sanction Programs

81 FR 67158 - Regulatory Update of Transfer and Sanction Programs

DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
Federal Highway Administration

Federal Register Volume 81, Issue 190 (September 30, 2016)

Page Range67158-67170
FR Document2016-23788

This action revises the Federal implementing regulations for the Section 154 (Open Container) and Section 164 (Repeat Intoxicated Driver) programs as a result of enactment of the Fixing America's Surface Transportation (FAST) Act. It incorporates the new compliance criteria for the Section 164 program and updates the regulations to reflect current practice. This document is being issued as an interim final rule to ensure that States receive instructions that are important to upcoming compliance determinations to be made on October 1, 2016. The agencies request comments on this rule. The agencies will publish a document responding to any comments received and, if appropriate, will amend provisions of the regulations.

Federal Register, Volume 81 Issue 190 (Friday, September 30, 2016)
[Federal Register Volume 81, Number 190 (Friday, September 30, 2016)]
[Rules and Regulations]
[Pages 67158-67170]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-23788]


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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


Regulatory Update of Transfer and Sanction Programs

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

ACTION: Interim final rule; request for comments.

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SUMMARY: This action revises the Federal implementing regulations for 
the Section 154 (Open Container) and Section 164 (Repeat Intoxicated 
Driver) programs as a result of enactment of the Fixing America's 
Surface Transportation (FAST) Act. It incorporates the new compliance 
criteria for the Section 164 program and updates the regulations to 
reflect current practice. This document is being issued as an interim 
final rule to ensure that States receive instructions that are 
important to upcoming compliance determinations to be made on October 
1, 2016. The agencies request comments on this rule. The agencies will 
publish a document responding to any comments received and, if 
appropriate, will amend provisions of the regulations.

DATES: This interim final rule is effective on October 1, 2016. 
Comments concerning this interim final rule are due on November 30, 
2016.

ADDRESSES: You may submit comments using the number identified in the 
heading of this document by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Mail: Docket Management Facility, M-30, U.S. Department of 
Transportation, West Building, Ground Floor, Rm. W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590.
     Hand Delivery or Courier: West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m. Eastern 
Time, Monday through Friday, except Federal holidays.
     Fax: (202) 493-2251.
    Regardless of how you submit your comments, please mention the 
docket number of this document.

[[Page 67159]]

    You may also call the Docket at 202-366-9324.
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the Public 
Participation heading of the Supplementary Information section of this 
document. Note that all comments received will be posted without change 
to http://www.regulations.gov, including any personal information 
provided.
    Privacy Act: Please see the Privacy Act heading under Regulatory 
Analyses and Notices.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Publicly available docket materials are 
available either electronically in www.regulations.gov or in hard copy 
at the Docket Management Facility, M-30, U.S. Department of 
Transportation, West Building, Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC. The Docket Management Facility is 
open between 9 a.m. and 5 p.m., Eastern Time, Monday through Friday, 
except Federal holidays.

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 Chief Counsel, Telephone number: (202) 366-
1834, Email: [email protected]; Facsimile: (202) 366-3820.
    FHWA: For program issues: Erin Kenley, Team Leader, Safety Programs 
Implementation and Evaluation Team, Office of Safety, Telephone number: 
(202) 366-8556, Email: [email protected]. For legal issues: William 
Winne, Attorney Advisor, Office of Chief Counsel, Telephone number: 
(202) 366-1397, Email: [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Introduction
II. Section 154: Open Container Laws
III. Section 164: Repeat Intoxicated Driver Laws
IV. Non-Compliance Penalties and Procedures
V. Notice and Comment, Effective Date, and Request for Comments
VI. Regulatory Analyses and Notices
VII. Public Participation

I. Introduction

    On December 4, 2015, the President signed into law the Fixing 
America's Surface Transportation Act (FAST Act), Public Law 114-94, the 
first authorization enacted in over ten years that provides long-term 
funding certainty for surface transportation. The FAST Act 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. The FAST Act built on prior amendments to 
those sections in the Moving Ahead for Progress in the 21st Century Act 
(MAP-21), Public Law 112-141, signed into law on July 6, 2012.
    The National Highway Traffic Safety Administration (NHTSA) and the 
Federal Highway Administration (FHWA) (collectively, ``the agencies'') 
are issuing this interim final rule (IFR), with immediate 
effectiveness, to ensure that States receive instructions that are 
important to upcoming compliance determinations to be made on October 
1, 2016, as the changes in the FAST Act are effective on that date. 
This IFR amends the Federal implementing regulations for Section 154 
(23 CFR part 1270) and Section 164 (23 CFR part 1275) to reflect the 
changed requirements from the recent Federal legislation. At the same 
time, the agencies are taking this opportunity to update the 
regulations to improve clarity, codify longstanding interpretation of 
the statutes and current regulations, and streamline procedures for 
States.
    This preamble will first address the history of and modifications 
to the minimum compliance requirements of Section 154 and Section 164, 
respectively. It will then address the elements common to both 
programs, including the penalties for noncompliance, the limitations on 
use of funds associated with noncompliance, and the responsibilities of 
compliant and non-compliant States.

II. Section 154: Open Container Laws

A. Background

    The Transportation Equity Act for the 21st Century (TEA-21), Public 
Law 105-178, was signed into law on June 9, 1998. On July 22, 1998, the 
TEA-21 Restoration Act, Public Law 105-206 (a technical corrections 
bill), was enacted to restore provisions that were agreed to by the 
conferees to TEA-21, but were not included in the conference report. 
Section 1405 of the TEA-21 Restoration Act amended chapter 1 of title 
23, United States Code (U.S.C.), by adding Section 154, which 
established a transfer program under which a percentage of a State's 
Federal-aid highway construction funds would be transferred to the 
State's apportionment under 23 U.S.C. 402 (Section 402) if the State 
failed to enact and enforce a conforming ``open container'' law. These 
funds could be used for alcohol-impaired driving countermeasures or the 
enforcement of driving while intoxicated laws, or States could elect to 
use all or a portion of the funds for hazard elimination activities 
under 23 U.S.C. 152.
    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). All 50 States, the District of 
Columbia, and Puerto Rico are considered to be States for the purposes 
of this program.
    On October 6, 1998, the agencies published an interim final rule 
implementing the Section 154 program, 63 FR 53580 (Oct. 6, 1998), 
followed by a final rule published on August 24, 2000. 65 FR 51532 
(Aug. 24, 2000). Since that time, the minimum requirements that a 
State's open container law must meet to comply with Section 154 have 
not changed. However, subsequent legislation amended the penalty 
provisions that apply to non-compliant States. Under current law, 
noncompliance results in the reservation of funds rather than an 
immediate transfer to Section 402; funds are reserved from different 
Federal-aid highway programs and in a different amount (based on a 
percentage defined in law); the transfer to Section 402 is dependent 
upon a State's election to use funds for alcohol impaired driving 
countermeasures; and funds may be used for highway safety improvement 
program activities eligible under 23 U.S.C. 148 rather than hazard 
elimination activities. The Federal implementing regulations were never 
updated to reflect these statutory changes governing procedures.
    This IFR updates the Federal implementing regulations to reflect 
these procedural changes. In addition, it makes changes to improve 
clarity, codify longstanding interpretations of the Federal statute and 
regulations, streamline procedures for States, and eliminate regulatory 
provisions that were not effectuated in practice for reasons discussed 
below. These changes are intended to ensure a uniform understanding 
among the States of the minimum requirements their open

[[Page 67160]]

container laws must meet. Revisions to the procedures for demonstrating 
compliance, the penalties for noncompliance, and the responsibilities 
of compliant and non-compliant States are discussed later in the 
preamble as those aspects are common to the Section 154 program and the 
Section 164 program.

B. Compliance Criteria for State Open Container Laws

    NHTSA is delegated the authority by the Secretary of Transportation 
to determine State compliance under Section 154 (49 CFR 1.95(f)). While 
Congress has not changed the minimum requirements that a State's open 
container law must meet to comply with Section 154 since the inception 
of the program, NHTSA's experience implementing the compliance criteria 
since the regulations were finalized in 2000 suggests the need to 
provide additional clarity to the States on particular aspects of the 
requirements. States are responsible for ensuring and maintaining their 
own compliance with these requirements. The agencies believe that the 
discussion in this preamble and the revisions to the regulations will 
allow States to better understand the program and attain and maintain 
compliance. These revisions are not intended to substantively amend the 
compliance requirements of the Section 154 program.
1. Definitions (23 CFR 1270.3)
    The agencies are adding definitions for the terms ``FHWA,'' 
``NHTSA,'' and ``open container law'' and eliminating the definition 
for ``enact and enforce.'' The added definitions are for terms used in 
the regulation, while the elimination of the definition of ``enact and 
enforce'' is simply because the term is plain and does not need a 
definition. The regulations continue to require a State to ``enact and 
enforce'' a compliant law.
    The agencies are amending the definition of ``open alcoholic 
beverage container'' to add the parenthetical phrase ``(regardless of 
whether it has been closed or resealed.)'' 23 CFR 1270.3(e).\1\ This is 
intended to make clear that ``cork and carry'' or ``resealed wine 
container'' laws exempting a recorked or resealed alcoholic beverage 
container from the State's open container laws are not allowed under 
the Federal law. Recorking or resealing does not negate the fact that 
the contents in the bottle have been partially removed, a direct 
concern under the Federal statute. Due to the preponderance of these 
laws in States, the agencies determined that this clarification is 
necessary. Recorked or resealed alcoholic beverages containers must be 
stored outside of the passenger area, such as in the trunk of a motor 
vehicle.
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    \1\ Throughout this preamble, citations to the Section 154 and 
Section 164 implementing regulations refer to the version as amended 
by the IFR.
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2. Compliance Criteria (23 CFR 1270.4(a)-(c))
    Congress has made no changes to the substantive compliance criteria 
of Section 154 since the inception of the program. Therefore, the 
agencies are not making any substantive changes to these sections of 
the regulations. The six compliance criteria are discussed extensively 
in the interim final rule (63 FR 53580 [Oct. 6, 1998]) and final rule 
(65 FR 51532 [Aug. 24, 2000]) that first implemented the program. Those 
discussions provide background and explanations regarding the Federal 
minimum requirements.
3. Exceptions (23 CFR 1270.4(d))
    The Federal implementing regulations require a State's open 
container law to apply to ``the passenger area of any motor vehicle,'' 
with passenger area meaning ``the area designed to seat the driver and 
passengers while the motor vehicle is in operation and any area that is 
readily accessible to the driver or a passenger while in their seating 
positions, including the glove compartment.'' 23 CFR 1270.3(g), 
1270.4(b)(2). However, certain exceptions to this rule are permitted 
provided they comply with the requirements in 23 CFR 1270.4(d)(1).
    The Federal regulations have long permitted possession of an open 
alcoholic beverage container in a locked glove compartment. NHTSA has 
accepted as compliant a State provision permitting storage of an open 
container in a locked center console because a locked center console is 
functionally equivalent to a locked glove compartment. This IFR 
logically extends that exception to allow possession of an open 
alcoholic beverage container in any locked container (including a 
locked fixed console or a locked glove compartment). The agencies 
emphasize that this exception does not permit the possession in the 
passenger area of an open alcoholic beverage container in tamper-
evident packaging. (See the earlier discussion about ``cork and carry'' 
and ``resealed wine container'' provisions.) While tamper-evident 
packaging may assist law enforcement officers in identifying whether 
consumption of the alcoholic beverage has occurred, it does not 
restrict access to the alcoholic beverage, which is the purpose of open 
container laws.
    This IFR also moves the location of the phrase ``in a motor vehicle 
that is not equipped with a trunk'' to remove any ambiguity that this 
is a prerequisite for allowing placement of an open alcoholic beverage 
container behind the last upright seat or in an area not normally 
occupied by the driver or a passenger. No substantive change is 
intended--the agencies have always interpreted and applied this 
provision in this manner.
    The Federal implementing regulations require a State's open 
container law to apply to all occupants of a motor vehicle. However, 
the Federal statute and implementing regulations permit exceptions 
allowing a passenger, but never a driver, to possess an open alcoholic 
beverage container or consume an alcoholic beverage in the passenger 
area of ``a motor vehicle designed, maintained, or used primarily for 
the transportation of persons for compensation, or in the living 
quarters of a house coach or house trailer.'' 23 CFR 1270.4(d)(2). The 
agencies are making technical corrections to this provision that do not 
change its application.

III. Section 164: Repeat Intoxicated Driver Laws

A. Background

    Section 1406 of the TEA-21 Restoration Act amended chapter 1 of 
title 23, U.S.C., by adding Section 164, which established a transfer 
program under which a percentage of a State's Federal-aid highway 
construction funds would be transferred to the State's apportionment 
under Section 402 if the State failed to enact and enforce a conforming 
``repeat intoxicated driver'' law. As with Section 154, transfer funds 
could be used for alcohol-impaired driving countermeasures or the 
enforcement of driving while intoxicated laws, or States could elect to 
use all or a portion of the funds for hazard elimination activities 
under 23 U.S.C. 152.
    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. As originally enacted, Section 164 required that States 
impose the following minimum penalties: A one-year driver's license 
suspension; the impoundment or immobilization of, or the installation 
of an ignition interlock system on, the repeat intoxicated

[[Page 67161]]

driver's motor vehicles; an assessment of the repeat intoxicated 
driver's degree of alcohol abuse, and treatment as appropriate; and the 
sentencing of the repeat intoxicated driver to a minimum number of days 
of imprisonment or community service. All 50 States, the District of 
Columbia, and Puerto Rico are considered to be States for the purposes 
of this program.
    On October 19, 1998, the agencies published an interim final rule 
that implemented the Section 164 program, 63 FR 55796 (Oct. 19, 1998), 
followed by a final rule published on October 4, 2000. 65 FR 59112 
(Oct. 4, 2000). The SAFETEA-LU Technical Corrections Act of 2008, 
Public Law 110-244 (enacted June 6, 2008), amended some of the minimum 
penalties States must impose on repeat offenders, and both MAP-21 and 
the FAST Act further amended these minimum penalties. These Acts also 
updated, in the same ways as Section 154, the penalty provisions that 
apply to States that are not compliant with the program. Despite these 
significant statutory changes over the past eight years, the Federal 
implementing regulations have not been updated since 2000.
    This IFR updates the minimum compliance criteria based on these 
legislative changes, as well as to improve clarity, codify longstanding 
interpretations, streamline procedures for States, and eliminate 
regulatory provisions that were not effectuated in practice for reasons 
discussed below. As with Section 154, these changes are intended to 
ensure a uniform understanding among the States of the minimum 
requirements their repeat intoxicated driver laws must meet. Revisions 
to the procedures for demonstrating compliance, the penalties for 
noncompliance, and the responsibilities of compliant and non-compliant 
States are discussed later in the preamble as those apply also to the 
Section 154 program.

B. Minimum Repeat Intoxicated Driver Law Requirements

    Unlike the Section 154 program, Congress has made substantive 
amendments to the requirements that a State's repeat intoxicated driver 
law must meet to comply with Section 164. Many of the revisions 
described in this section codify those substantive statutory changes, 
as the regulations have not been updated since 2000. In other cases, 
the agencies are simply improving the clarity of the regulations to 
reflect longstanding application of the Federal statute since 2000.
1. Definitions (23 CFR 1275.3)
    The agencies are adding definitions for ``FHWA'' and ``NHTSA'' and 
eliminating the definition for ``enact and enforce,'' consistent with 
the approach for 23 CFR 1270.3. The agencies are eliminating the 
definitions for ``driver's motor vehicle'' and ``impoundment or 
immobilization,'' as the compliance criterion to which these applied 
was repealed by the FAST Act. The agencies are eliminating the 
definition for ``license suspension,'' as the compliance criterion to 
which it applied has been reworded, rendering the definition 
superfluous. The agencies are adding a definition for ``24-7 sobriety 
program'' due to FAST Act revisions to the general compliance criteria. 
Because the definition of the term in the FAST Act cross-references 23 
U.S.C. 405(d)(7)(A), the agencies have similarly tied the definition 
here to the meaning given to it in NHTSA's Section 405 implementing 
regulations (see 23 CFR 1300.23(b)). 23 CFR 1270.3(a). This 
necessitates adding a reference to a ``combination of laws or 
programs'' to the definition of ``repeat intoxicated driver law'' to 
accommodate these 24-7 sobriety programs. Finally, the agencies are 
adding a definition for ``mandatory sentence.'' As used in combination 
with ``imprisonment,'' the definition is intended to ensure that repeat 
offenders are in fact detained for the minimum periods specified.
    Although the IFR makes no change to the definition of ``repeat 
intoxicated driver,'' the agencies emphasize that a State may not 
expunge an offender's prior conviction in order to exclude it from the 
five-year lookback period. Any mechanism (including expungement) that 
causes a State to exclude from consideration prior convictions of 
driving while intoxicated or driving under the influence, when such 
convictions occurred within the prior five years, generally does not 
comply with Section 164.
2. Compliance Criteria (23 CFR 1275.4(a))
    The substantive compliance criteria of Section 164 have been 
significantly amended since their inception. This IFR updates the 
compliance criteria to reflect the current law, as most recently 
amended by the FAST Act. In addition, the agencies are providing 
clarifications as appropriate.
a. License Sanction (23 CFR 1275.4(a)(1))
    Section 164, as created by the TEA-21 Restoration Act, required all 
repeat offenders to receive a minimum one-year hard license suspension 
or revocation. Under the Federal implementing regulations, during the 
one-year term, the offender could not be eligible for any driving 
privileges, such as a restricted or hardship license. Because the 
Federal implementing regulations have not been updated since 2000, this 
language remained in the Code of Federal Regulations. The SAFETEA-LU 
Technical Corrections Act of 2008 and MAP-21 made further changes that 
were effectuated by the agencies, but that were never written into the 
regulations.
    The FAST Act completely rewrote the license sanction criterion in 
23 U.S.C. 164(a)(5)(A) to loosen the requirements and provide for 
additional compliance options for States. This IFR codifies the revised 
criterion. Under today's IFR, all repeat offenders must receive one or 
a combination of three license sanctions for a period of not less than 
one year (365 days). States may therefore ``mix-and-match'' these 
sanctions, provided that, in combination, they last for the full one 
year period.
    The first license sanction is a suspension of all driving 
privileges. During that period, the repeat offender is not permitted to 
operate any motor vehicle under any circumstances. The second license 
sanction is a restriction on driving privileges that limits the 
individual to operating only motor vehicles with an ignition interlock 
device installed. Section 164 and the implementing regulations permit 
certain limited exceptions to this license sanction, discussed later in 
this preamble. The third license sanction is that the repeat offender 
may only operate a motor vehicle provided the individual is 
participating in, and complying with, a 24-7 sobriety program. For a 
State's law or 24-7 sobriety program to comply with this requirement, 
it must make clear that any participant who is kicked out of the 
program must be subject to either a hard license suspension or an 
ignition interlock restriction, as provided under the other two license 
sanctions, for the remainder of the one year sanction period.
b. Vehicle Sanction (Repealed)
    The TEA-21 Restoration Act required all repeat offenders to ``be 
subject to the impoundment or immobilization of each of the 
individual's motor vehicles or the installation of an ignition 
interlock system on each of the motor vehicles.'' The Federal 
implementing regulations further required impoundment or immobilization 
to occur during the one-year license suspension, while installation of 
an ignition interlock

[[Page 67162]]

device was required to occur at the conclusion of the one-year license 
suspension. The FAST Act repealed this vehicle sanction. With the vast 
majority of States moving to ignition interlocks as a license sanction, 
the vehicle sanction requirement was largely redundant. This IFR 
removes these requirements from 23 CFR 1275.4.
c. Assessment and Treatment (23 CFR 1275.4(a)(2))
    Under Section 164, the State law must require that all repeat 
intoxicated drivers undergo an assessment of their degree of alcohol 
abuse, and it must authorize the imposition of treatment as 
appropriate. An assessment is required of all repeat offenders because 
it allows for a determination not only of whether an offender should 
undergo treatment, but also of what type and level of treatment is 
appropriate for that offender. While treatment is not required for all 
repeat offenders, the State must authorize the imposition of treatment 
as appropriate. Congress has not changed this criterion since its 
inception, and the agencies are making no changes in this IFR.
d. Minimum Sentence (23 CFR 1275.4(a)(3))
    Since the beginning of the program, Section 164 has required that 
each State have a law that imposes a mandatory minimum sentence on all 
repeat intoxicated drivers. For a second offense, the law must provide 
for a mandatory sentence of not less than 5 days of imprisonment or 30 
days of community service. For a third or subsequent offense, the law 
must provide for a mandatory sentence of not less than 10 days of 
imprisonment or 60 days of community service. The terms ``mandatory 
sentence'' and ``imprisonment'' are defined in 23 CFR 1275.3. The FAST 
Act retains these minimum sentence provisions, but allows States the 
option to certify as to their ``general practice'' for incarceration in 
lieu of having a compliant mandatory minimum sentence. The new 
certification option is addressed in the next section regarding 
exceptions.
    In this IFR, the agencies are clarifying the number of hours for 
the various sentences identified above that are considered equivalent 
to each ``day.'' Many States provide for sentencing in terms of hours 
rather than days. The agencies recognize that imprisonment and 
community service function differently. While imprisonment is generally 
an extended period of detainment that lasts through waking and sleeping 
hours, community service is a form of labor that occurs while the 
detainee is awake. A ``day'' for purposes of each of these penalties is 
therefore not equivalent. NHTSA's longstanding interpretation has been 
that one ``day'' of imprisonment equals 24 hours, and one ``day'' of 
community service equals 8 hours (a work day). The agencies have added 
corresponding hour equivalents to the minimum sentence criterion.
3. Exceptions (23 CFR 1275.4(b), 1275.5)
a. Special Exceptions (23 CFR 1275.4(b))
    One of the three sanctions under the license sanction criterion 
described above is restriction of the repeat offender's driving 
privileges to the operation of only motor vehicles with an ignition 
interlock device installed. However, the FAST Act allows two exceptions 
to this restriction, which the agencies are adopting in this IFR 
verbatim. (Prior to enactment of the FAST Act, neither was allowed 
under the Section 164 program.) No other exceptions to a State's 
ignition interlock law are permitted.
    First, the FAST Act allows a repeat offender subject to an ignition 
interlock restriction to operate an employer's motor vehicle in the 
course and scope of employment without an ignition interlock device 
installed, provided the business entity that owns the vehicle is not 
owned or controlled by the individual. A State's exception must 
explicitly exclude business entities owned or controlled by the repeat 
offender or it will not comply with the license sanction criterion. An 
exclusion for ``self-employment,'' for example, does not cover all 
business entities potentially owned or controlled by a repeat offender, 
and would not allow a State's exception to comply with the license 
sanction criterion. Second, a State may except from its ignition 
interlock law a repeat offender that is certified by a medical doctor 
as being unable to provide a deep lung breath sample for analysis by an 
ignition interlock device.
b. ``General Practice'' Certifications (23 CFR 1275.5)
    The FAST Act amends the minimum sentence criterion to provide an 
alternative compliance option. In lieu of enacting and enforcing a law 
that complies with the minimum sentence criterion, a State may certify 
to its ``general practice'' of incarceration. According to the FAST 
Act, the State must 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). This IFR establishes the process for a State to 
submit a ``general practice'' certification as an alternative means of 
satisfying the minimum sentence criterion.
    The IFR sets forth separate certifications for second offender 
incarceration and for third and subsequent offender incarceration. This 
will allow maximum flexibility to States, because it allows a State 
whose laws are partly in compliance to satisfy the minimum sentence 
criterion through a combination of statute and certification.
    To meet the statutory standard of ``general practice,'' the 
agencies have elected to require a State to certify that 75 percent of 
repeat offenders are subject to mandatory incarceration. The agencies 
believe this percentage is a reasonable interpretation of what would 
constitute ``general practice'' in a State. Consistent with the FAST 
Act requirements, the certification for a second offender does not 
contain a minimum incarceration period, while that for third and 
subsequent offenders specifies 10 days.
    The agencies elected not to base ``general practice'' on a State's 
average incarceration period for repeat offenders. That approach would 
allow a State to meet the standard for second offenders if a single 
offender is sentenced to any period of incarceration. For third and 
subsequent offenders, lengthy prison sentences could skew the average 
even if the vast majority of offenders received sentences well below 10 
days. The agencies do not believe such an approach falls within the 
reasonable meaning of ``general practice.''
    Each certification is required to be based on data from the full 
calendar year immediately preceding the date of certification. In other 
words, if the State is certifying for fiscal year 2018 (which begins on 
October 1, 2017), the State's ``general practice'' certification must 
be based on data from the entire period of January 1, 2016 through 
December 31, 2016. The certification must be signed by the Governor's 
Representative for Highway Safety and must be based on personal 
knowledge and other appropriate inquiry.
    Because the State's ``general practice'' may change over time, the 
agencies are requiring States electing this compliance option to 
provide a new certification annually. Although certifications are due 
by October 1 each year, States are encouraged to submit their 
certification by August 15 to avoid

[[Page 67163]]

any delay in the release of funds on October 1 of that calendar year.

IV. Non-Compliance Penalties and Procedures

    This section describes the penalties affecting States that do not 
comply with one or both of the Section 154 and Section 164 programs. In 
general, these changes merely update the regulations to reflect 
amendments made by Federal statutes, such as MAP-21. The agencies are 
also streamlining some of the procedures that apply to States.

A. Reservation of Funds for Non-Compliance (23 CFR 1270.6 and 1275.6)

    States that fail to enact or enforce compliant open container or 
repeat intoxicated driver laws by October 1 of each fiscal year will 
have an amount equal to 2.5 percent of Federal-aid funds apportioned 
under 23 U.S.C. 104(b)(1) and 23 U.S.C. 104(b)(2) for the National 
Highway Performance Program (NHPP) and the Surface Transportation Block 
Grant Program (STBG) reserved by FHWA. The penalties are separate and 
distinct; a 2.5 percent penalty applies separately for each program 
where non-compliance occurs. The IFR eliminates as obsolete the penalty 
provisions that applied to fiscal years 2001 and 2002. In addition, it 
updates the procedures to reflect the change to a reservation program 
(rather than immediate transfer to a State's Section 402 
apportionment), the change in the penalty amount to 2.5 percent of 
Federal-aid funds (rather than 3 percent), and the change in the funds 
from which the penalty is reserved to those apportioned under 23 U.S.C. 
104(b)(1) and (b)(2) (rather than 23 U.S.C. 104(b)(1), (b)(3), and 
(b)(4)), which all resulted from MAP-21.
    The initial reservation of Federal-aid funds by FHWA for 
noncompliant States will be on a proportional basis from each of the 
apportionments under Sections 104(b)(1) and (b)(2). Each fiscal year, 
the State's Department of Transportation must inform FHWA, through the 
appropriate Division Administrator, within 30 days if it wishes to 
change the derivation of the total penalty amounts from the NHPP and 
STBG apportionments from the default proportional amounts. Prior to 
this IFR, States were required to submit this request by October 30. 
The change in the IFR ensures that States always receive 30 days to 
process this request in the event issuance of the notice of 
apportionments is delayed.

B. Use of Reserved Funds (23 CFR 1270.7 and 1275.7)

    The agencies have reorganized 23 CFR 1270.7 and 1275.7 to improve 
clarity and better align them with the order of procedures for States. 
Not later than 60 days after the penalty funds are reserved, the 
Governor's Representative for Highway Safety and the Chief Executive 
Officer of the State's Department of Transportation must jointly 
identify, in writing, to the appropriate NHTSA Regional Administrator 
and FHWA Division Administrator how the penalty funds will be 
distributed for use among alcohol-impaired driving programs and highway 
safety improvement program (HSIP) eligible activities under 23 U.S.C. 
148. The primary change in the IFR is to reflect the change in 
available uses from hazard elimination to HSIP eligible activities, 
which resulted from Federal legislation.
    The penalty funds will continue to be reserved until the State 
provides this distribution request. As soon as practicable after its 
receipt by the agencies, the funds will either be transferred to the 
State's Section 402 apportionment for alcohol-impaired driving programs 
or released to the State Department of Transportation for HSIP eligible 
activities, pursuant to the changes in MAP-21. The Federal statutes do 
not authorize additional transfers between the Section 402 and HSIP 
programs. As a result, the IFR adds that once penalty funds have been 
transferred or released for the fiscal year, States are not able to 
revise their request.
    The allowable uses for funds (specifically, for alcohol-impaired 
driving programs and HSIP eligible activities) are described in the 
implementing regulations and updated only to reflect the switch from 
hazard elimination to HSIP, pursuant to Federal legislation. Under both 
programs, the Federal share of the cost of any project carried out with 
penalty funds remains 100 percent.
    Section 154 and 164 penalty funds are transferred or released from 
the State's apportionment of contract authority under 23 U.S.C. 
104(b)(1) and 23 U.S.C. 104(b)(2). The contract authority is 
transferred or released with accompanying obligation authority, which 
is the maximum amount the State can obligate to eligible projects. If 
the State elects to transfer funds to its Section 402 apportionment for 
alcohol-impaired driving programs, the obligation limitation is 
provided based on a ratio specified in 23 CFR 1270.7 and 1275.7, which 
comes directly from 23 U.S.C. 154(c)(6) and 23 U.S.C. 164(b)(6). The 
IFR makes technical corrections and amendments to improve clarity in 
these provisions of the Federal implementing regulations, but they do 
not result in any change in how the ratio is calculated.

C. Procedures Affecting States in Noncompliance (23 CFR 1270.8 and 
1275.8)

    Under the original Federal implementing regulations, the agencies 
intended for States to be notified of their compliance status in FHWA's 
advance notice of apportionment, normally issued ninety days prior to 
final apportionment. Noncompliant States were then granted 30 days to 
submit documentation showing why they were in compliance. The agencies 
would then issue a final determination as part of the final 
notification of apportionments, which normally occurs on October 1 of 
each year. While the agencies have strived to notify States of pending 
changes in their compliance status in the advance notice of 
apportionment whenever possible, the Federal statute requires formal 
compliance determinations to be based on the State's law enacted and 
enforced on October 1 of each fiscal year. As a result, State 
compliance status may change up to that date, making this system 
unworkable in many cases. The IFR revises 23 CFR 1270.8 and 1275.8 to 
better reflect the actual practice the agencies have undertaken to give 
States full opportunity to present additional documentation (with some 
minor changes to streamline the process for States).
    Each State determined to be noncompliant with 23 U.S.C. 154 or 23 
U.S.C. 164 receives notice of its compliance status and the funds being 
reserved from apportionment as part of the final certification of 
apportionments required under 23 U.S.C. 104(e), which normally occurs 
on October 1 of each fiscal year. All States will be afforded 30 days 
from the date the final notice of apportionments is issued to submit 
additional documentation showing why they are in compliance. For the 
Section 164 program, this documentation may include a ``general 
practice'' certification. Previously, only newly noncompliant States 
were afforded 30 days to submit additional documentation demonstrating 
compliance.
    While the agencies consider any additional documentation provided 
by the State, the reservation will remain in place on the State's 
affected funds. However, the State must still provide the requests 
regarding the derivation and distribution of funds referenced in 
Sections A and B (within 30 and 60 days, respectively) while the 
documentation is reviewed to expedite the distribution of funds. If the 
agencies

[[Page 67164]]

affirm the noncompliance determination, the State will be notified of 
the decision and the affected funds will be processed in accordance 
with the requests provided by the State. If the agencies reverse the 
noncompliance determination, the funds will be released from 
reservation and restored to the State's NHPP and STBG accounts. These 
procedures are intended to preserve the maximum possible flexibility 
for States, while ensuring that the agencies meet their statutory 
obligations.

D. States' Responsibilities Regarding Compliance (23 CFR 1270.9 and 
1275.9)

    Under the original Federal implementing regulations, if a State 
enacted a newly compliant law, the State was required to submit to the 
NHTSA Regional Office a copy of the law along with a certification 
meeting the requirements of the applicable Federal regulation (23 CFR 
1270.5 or 1275.5, prior to amendment by this IFR). States were required 
to promptly submit an amendment or supplement to their certifications 
if their law changed or they ceased to enforce their law.
    The agencies are eliminating this certification requirement in this 
IFR, thereby reducing the paperwork burden on the States. In practice, 
few States submitted certifications, and the agencies found them to be 
of limited value in enforcement. Instead, this IFR adds a new section 
for each of the programs (23 CFR 1270.9 and 1275.9) related to States' 
responsibilities regarding compliance. First, these sections make clear 
that it is the State's sole responsibility to ensure compliance with 
the Section 154 and 164 programs. While NHTSA conducts an annual review 
of State laws to assess whether legislation has affected their 
compliance status, this does not occur until late in the fiscal year, 
often after State legislative sessions have ended. NHTSA cannot and 
does not actively monitor all pending legislation in all States. 
Instead, each State Highway Safety Office and State Department of 
Transportation should actively monitor their legislatures for potential 
amendments to their open container and repeat intoxicated driver laws.
    Second, the agencies have added a provision indicating that States 
must promptly notify the appropriate NHTSA Regional Administrator in 
writing of any change or change in enforcement to the State's open 
container or repeat intoxicated driver law, identifying the specific 
change(s). This replaces the requirement to submit a supplement or 
amendment to the State's certification. To the extent appropriate, 
NHTSA will conduct a preliminary review of the State's amended law and 
identify to the State any potential compliance issues resulting from 
the change. Absent early notification from the State, NHTSA may not 
identify a potential compliance issue until later in the fiscal year, 
often after the State's legislative session has ended.

V. Notice and Comment, Effective Date, and Request for Comments

    The Administrative Procedure Act authorizes agencies to dispense 
with certain procedures for rules when they find ``good cause'' to do 
so. The agencies must ensure that States receive instructions that are 
important to upcoming compliance determinations to be made on October 
1, 2016, as the changes in the FAST Act are effective on that date. In 
light of the short time frame for implementing the FAST Act, the 
agencies find good cause to dispense with the notice and comment 
requirements and the 30-day delayed effective date requirement.
    Under Section 553(b)(B), the requirements of notice and comment do 
not apply when the agency, for good cause, finds that those procedures 
are ``impracticable, unnecessary, or contrary to public interest.'' 
Because of the short time frame for implementing the FAST Act, the 
agencies find it impracticable to implement the new compliance criteria 
with notice and comment for FY 2017. However, the agencies invite 
public comment on all aspects of this IFR. The agencies will consider 
and address comments in a final rule, which the agencies commit to 
publishing during the first quarter of calendar year 2017, and which 
will be effective beginning with FY 2018.
    Under Section 553(d), the agencies may make a rule effective 
immediately, avoiding the 30-day delayed effective date requirement for 
good cause. We have determined that it is in the public interest for 
this IFR to have an immediate effective date. The agencies are 
expediting this rulemaking to provide instructions that are important 
to upcoming compliance determinations to be made on October 1, 2016, 
such as those related to the new ``general practice'' certifications. 
States also need clarification for the processes related to 
noncompliance.
    For these reasons, the agencies are issuing this rulemaking as an 
interim final rule that will be effective immediately. As an interim 
final rule, this regulation is fully in effect and binding upon its 
effective date. No further regulatory action by the agencies is 
necessary to make this rule effective. However, in order to benefit 
from comments that interested parties and the public may have, the 
agencies are requesting that comments be submitted to the docket for 
this notice.
    Comments received in response to this notice will be considered by 
the agencies. The agencies will then issue a final rule, including any 
appropriate amendments based on those comments. The notice for that 
final rule will respond to substantive comments received.

VI. Regulatory Analyses and Notices

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

    The agencies 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 funds 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.

[[Page 67165]]

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 IFR is a rulemaking that will update the Section 154 and 
Section 164 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 IFR 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.

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 
IFR 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 IFR 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 13211

    Executive Order 13211 (66 FR 28355, May 18, 2001) applies to any 
rulemaking that: (1) Is determined to be economically significant as 
defined under Executive Order 12866, and is likely to have a 
significantly adverse effect on the supply of, distribution of, or use 
of energy; or (2) that is designated by the Administrator of the Office 
of Information and Regulatory Affairs as a significant energy action. 
This rulemaking is not likely to have a significantly adverse effect on 
the supply of, distribution of, or use of energy. This rulemaking has 
not been designated as a significant energy action. Accordingly, this 
rulemaking is not subject to Executive Order 13211.

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

    The agencies have analyzed this IFR under Executive Order 13175, 
and have determined that today's 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.

J. Plain Language

    Executive Order 12866 and the President's memorandum of June 1, 
1998, require each agency to write all rules in plain language. 
Application of the principles of plain language includes consideration 
of the following questions:
     Have we organized the material to suit the public's needs?
     Are the requirements in the rule clearly stated?
     Does the rule contain technical language or jargon that 
isn't clear?
     Would a different format (grouping and order of sections, 
use of headings, paragraphing) make the rule easier to understand?
     Would more (but shorter) sections be better?
     Could we improve clarity by adding tables, lists, or 
diagrams?
     What else could we do to make the rule easier to 
understand?

If you have any responses to these questions, please include them in 
your comments on this IFR.

K. Regulatory Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier 
number (RIN) to each regulatory action listed in the Unified Agenda of 
Federal Regulations. The Regulatory Information Service Center 
publishes the Unified

[[Page 67166]]

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.

L. 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.

VII. Public Participation

How do I prepare and submit comments?

    Your comments must be written and in English. To ensure that your 
comments are correctly filed in the Docket, please include the docket 
number of this document in your comments.
    Your comments must not be more than 15 pages long. (49 CFR 553.21). 
We established this limit to encourage you to write your primary 
comments in a concise fashion. However, you may attach necessary 
additional documents to your comments. There is no limit on the length 
of the attachments.
    Comments may also be submitted to the docket electronically by 
logging onto the Docket Management System Web site at http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Please note that pursuant to the Data Quality Act, in order for 
substantive data to be relied upon and used by the agencies, it must 
meet the information quality standards set forth in the OMB and DOT 
Data Quality Act guidelines. Accordingly, we encourage you to consult 
the guidelines in preparing your comments. OMB's guidelines may be 
accessed at http://www.whitehouse.gov/omb/fedreg/reproducible.html.

How can I be sure that my comments were received?

    If you wish Docket Management to notify you upon its receipt of 
your comments, enclose a self-addressed, stamped postcard in the 
envelope containing your comments. Upon receiving your comments, Docket 
Management will return the postcard by mail.

How do I submit confidential business information?

    If you wish to submit any information under a claim of 
confidentiality, you should submit three copies of your complete 
submission, including the information you claim to be confidential 
business information, to the Chief Counsel, NHTSA, at the address given 
above under FOR FURTHER INFORMATION CONTACT. In addition, you should 
submit a copy, from which you have deleted the claimed confidential 
business information, to the docket at the address given above under 
ADDRESSES. When you send a comment containing information claimed to be 
confidential business information, you should include a cover letter 
setting forth the information specified in our confidential business 
information regulation. (49 CFR part 512.)

Will the agencies consider late comments?

    We will consider all comments received before the close of business 
on the comment closing date indicated above under DATES. To the extent 
possible, we will also consider comments that the docket receives after 
that date. If the docket receives a comment too late for us to consider 
in developing a final rule (assuming that one is issued), we will 
consider that comment as an informal suggestion for future rulemaking 
action.

How can I read the comments submitted by other people?

    You may read the comments received by the docket at the address 
given above under ADDRESSES. The hours of the docket are indicated 
above in the same location. You may also see the comments on the 
Internet. To read the comments on the Internet, go to http://www.regulations.gov. Follow the online instructions for accessing the 
dockets.
    Please note that even after the comment closing date, we will 
continue to file relevant information in the docket as it becomes 
available. Further, some people may submit late comments. Accordingly, 
we recommend that you periodically check the Docket for new material. 
You can arrange with the docket to be notified when others file 
comments in the docket. See http://www.regulations.gov for more 
information.

    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

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

    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:

0
1. Revise part 1270 to read as follows:

PART 1270--OPEN CONTAINER LAWS

Sec.
1270.1 Scope.
1270.2 Purpose.
1270.3 Definitions.
1270.4 Compliance criteria.
1270.5 [Reserved].
1270.6 Reservation of funds.
1270.7 Use of reserved funds.
1270.8 Procedures affecting States in noncompliance.
1270.9 States' responsibilities regarding compliance.

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


Sec.  1270.1  Scope.

    This part prescribes the requirements necessary to implement 
Section 154 of Title 23 of the United States Code which encourages 
States to enact and enforce open container laws.


Sec.  1270.2  Purpose.

    The purpose of this part is to specify the steps that States must 
take to avoid the reservation and transfer of Federal-aid highway funds 
for noncompliance with 23 U.S.C. 154.


Sec.  1270.3  Definitions.

    As used in this part:
    (a) Alcoholic beverage means:
    (1) Beer, ale, porter, stout, and other similar fermented beverages 
(including sake or similar products) of any name or description 
containing one-half of 1 percent or more of alcohol by volume, brewed 
or produced from malt, wholly or in part, or from any substitute 
therefor;
    (2) Wine of not less than one-half of 1 per centum of alcohol by 
volume; or
    (3) Distilled spirits which is that substance known as ethyl 
alcohol, ethanol, or spirits of wine in any form (including all 
dilutions and mixtures thereof from whatever source or by whatever 
process produced).
    (b) FHWA means the Federal Highway Administration.
    (c) Motor vehicle means a vehicle driven or drawn by mechanical 
power and manufactured primarily for use on public highways, but does 
not include a vehicle operated solely on a rail or rails.
    (d) NHTSA means the National Highway Traffic Safety Administration.

[[Page 67167]]

    (e) Open alcoholic beverage container means any bottle, can, or 
other receptacle that:
    (1) Contains any amount of alcoholic beverage; and
    (2) Is open or has a broken seal or the contents of which are 
partially removed (regardless of whether it has been closed or 
resealed).
    (f) Open container law means a State law or combination of laws 
that meets the minimum requirements specified in Sec.  1270.4.
    (g) Passenger area means the area designed to seat the driver and 
passengers while the motor vehicle is in operation and any area that is 
readily accessible to the driver or a passenger while in their seating 
positions, including the glove compartment.
    (h) Public highway or right-of-way of a public highway means the 
width between and immediately adjacent to the boundary lines of every 
way publicly maintained when any part thereof is open to the use of the 
public for purposes of vehicular travel; inclusion of the roadway and 
shoulders is sufficient.
    (i) State means any of the 50 States, the District of Columbia, or 
the Commonwealth of Puerto Rico.


Sec.  1270.4  Compliance criteria.

    (a) To avoid the reservation of funds specified in Sec.  1270.6, a 
State must enact and enforce an open container law that prohibits the 
possession of any open alcoholic beverage container, and the 
consumption of any alcoholic beverage, in the passenger area of any 
motor vehicle (including possession or consumption by the driver of the 
vehicle) located on a public highway, or the right-of-way of a public 
highway, in the State.
    (b) The law must apply to:
    (1) The possession of any open alcoholic beverage container and the 
consumption of any alcoholic beverage;
    (2) The passenger area of any motor vehicle;
    (3) All alcoholic beverages;
    (4) All occupants of a motor vehicle; and
    (5) All motor vehicles located on a public highway or the right-of-
way of a public highway.
    (c) The law must provide for primary enforcement.
    (d) Exceptions. (1) If a State has in effect a law that makes 
unlawful the possession of any open alcoholic beverage container and 
the consumption of any alcoholic beverage in the passenger area of any 
motor vehicle, but permits the possession of an open alcoholic beverage 
container in a locked 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, the State will be deemed to have in effect a law that 
applies to the passenger area of any vehicle, as provided in paragraph 
(b)(2) of this section.
    (2) If a State has in effect a law that makes unlawful the 
possession of any open alcoholic beverage container and the consumption 
of any alcoholic beverage by the driver (but not by a passenger) in the 
passenger area of a motor vehicle designed, maintained, or used 
primarily for the transportation of persons for compensation, or in the 
living quarters of a house coach or house trailer, the State shall be 
deemed to have in effect a law that applies to all occupants of a motor 
vehicle with respect to such motor vehicles, as provided in paragraph 
(b)(4) of this section.


Sec.  1270.5   [Reserved].


Sec.  1270.6  Reservation of funds.

    (a) On October 1 of each fiscal year, if a State has not enacted or 
is not enforcing a law that complies with Sec.  1270.4, FHWA will 
reserve an amount equal to 2.5 percent of the funds apportioned to the 
State for that fiscal year under each of 23 U.S.C. 104(b)(1) and 
(b)(2).
    (b) The reservation of funds will be made based on proportionate 
amounts from each of the apportionments under 23 U.S.C. 104(b)(1) and 
(b)(2). The State's Department of Transportation will have 30 days from 
the date the funds are reserved under this section to notify FHWA, 
through the appropriate Division Administrator, if it would like to 
change the distribution of the amounts reserved between 23 U.S.C. 
104(b)(1) and (b)(2).


Sec.  1270.7  Use of reserved funds.

    (a) Not later than 60 days after the funds are reserved under Sec.  
1270.6, the Governor's Representative for Highway Safety and the Chief 
Executive Officer of the State's Department of Transportation for each 
State must jointly identify, in writing to the appropriate NHTSA 
Regional Administrator and FHWA Division Administrator, how the funds 
will be programmed between alcohol-impaired driving programs under 
paragraph (c) of this section and highway safety improvement program 
activities under paragraph (d) of this section. Funds will remain 
reserved until this notification is provided by the State.
    (b) As soon as practicable after NHTSA and FHWA receive the 
notification described in paragraph (a) of this section, the Secretary 
will:
    (1) Transfer the reserved funds identified by the State for 
alcohol-impaired driving programs under paragraph (c) of this section 
to the apportionment of the State under 23 U.S.C. 402; and
    (2) Release the reserved funds identified by the State for highway 
safety improvement program activities under paragraph (d) of this 
section to the State Department of Transportation.
    (c) Any funds transferred under paragraph (b)(1) of this section 
shall be--
    (1) Used for approved projects for alcohol-impaired driving 
countermeasures; or
    (2) Directed to State and local law enforcement agencies for 
enforcement of laws prohibiting driving while intoxicated or driving 
under the influence and other related laws (including regulations), 
including the purchase of equipment, the training of officers, and the 
use of additional personnel for specific alcohol-impaired driving 
countermeasures, dedicated to enforcement of the laws (including 
regulations).
    (d) Any funds released under paragraph (b)(2) of this section shall 
be used for highway safety improvement program activities eligible 
under 23 U.S.C. 148.
    (e) Once the funds have been transferred or released under 
paragraph (b) of this section, the State may not revise the 
notification described in paragraph (a) of this section identifying how 
the funds will be programmed between alcohol-impaired driving programs 
and highway safety improvement program activities.
    (f) The Federal share of the cost of any project carried out with 
the funds transferred or released under paragraph (b) of this section 
is 100 percent.
    (g)(1) If any funds are transferred under paragraph (b)(1) of this 
section to the apportionment of a State under Section 402 for a fiscal 
year, the amount of obligation authority determined under paragraph 
(g)(2) of this section shall be transferred for carrying out projects 
described in paragraph (c) of this section.
    (2) The obligation authority referred to in paragraph (g)(1) of 
this section shall be transferred from the obligation authority 
distributed for the fiscal year to the State for Federal-aid highways 
and highway safety construction programs, and the amount shall be 
determined by multiplying:
    (i) The amount of funds transferred under paragraph (b)(1) of this 
section to

[[Page 67168]]

the apportionment of the State under Section 402 for the fiscal year; 
by
    (ii) The ratio that:
    (A) The amount of obligation authority distributed for the fiscal 
year to the State for Federal-aid highways and highway safety 
construction programs; bears to
    (B) The total of the sums apportioned to the State for Federal-aid 
highways and highway safety construction programs (excluding sums not 
subject to any obligation limitation) for the fiscal year.
    (h) Notwithstanding any other provision of law, no limitation on 
the total obligations for highway safety programs under Section 402 
shall apply to funds transferred under paragraph (b)(1) of this 
section.


Sec.  1270.8  Procedures affecting States in noncompliance.

    (a) Each fiscal year, each State determined to be in noncompliance 
with 23 U.S.C. 154 and this part will be advised of the funds reserved 
from apportionment under Sec.  1270.6 in the notice of apportionments 
required under 23 U.S.C. 104(e), which normally occurs on October 1.
    (b) Each State whose funds are reserved under Sec.  1270.6 will be 
afforded 30 days from the date of issuance of the notice of 
apportionments described in paragraph (a) of this section to submit 
documentation showing why it is in compliance. Documentation must be 
submitted to the appropriate NHTSA Regional Administrator. If such 
documentation is provided, a reservation will remain in place on the 
State's affected funds while the agencies consider the information. If 
the agencies affirm the noncompliance determination, the State will be 
notified of the decision and the affected funds will be processed in 
accordance with the requests regarding the derivation and distribution 
of funds provided by the State as required by Sec. Sec.  1270.6(b) and 
1270.7(a).


Sec.  1270.9  States' responsibilities regarding compliance.

    (a) States are responsible for ensuring compliance with 23 U.S.C. 
154 and this part.
    (b) A State that has been determined to be in compliance with the 
requirements of 23 U.S.C. 154 and this part must promptly notify the 
appropriate NHTSA Regional Administrator in writing of any change or 
change in enforcement of the State's open container law, identifying 
the specific change(s).

0
2. Revise part 1275 to read as follows:

PART 1275--REPEAT INTOXICATED DRIVER LAWS

Sec.
1275.1 Scope.
1275.2 Purpose.
1275.3 Definitions.
1275.4 Compliance criteria.
1275.5 ``General practice'' certification option.
1275.6 Reservation of funds.
1275.7 Use of reserved funds.
1275.8 Procedures affecting States in noncompliance.
1275.9 States' responsibilities regarding compliance.

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


Sec.  1275.1  Scope.

    This part prescribes the requirements necessary to implement 
Section 164 of Title 23, United States Code, which encourages States to 
enact and enforce repeat intoxicated driver laws.


Sec.  1275.2  Purpose.

    The purpose of this part is to specify the steps that States must 
take to avoid the reservation and transfer of Federal-aid highway funds 
for noncompliance with 23 U.S.C. 164.


Sec.  1275.3  Definitions.

    As used in this part:
    (a) 24-7 sobriety program has the meaning given the term in Sec.  
1300.23(b) of this title.
    (b) Alcohol concentration means grams of alcohol per 100 
milliliters of blood or grams of alcohol per 210 liters of breath.
    (c) Driving while intoxicated means driving or being in actual 
physical control of a motor vehicle while having an alcohol 
concentration above the permitted limit as established by each State, 
or an equivalent non-BAC intoxicated driving offense.
    (d) Driving under the influence has the same meaning as ``driving 
while intoxicated.''
    (e) FHWA means the Federal Highway Administration.
    (f) Ignition interlock system means a State-certified system 
designed to prevent drivers from starting their car when their breath 
alcohol concentration is at or above a preset level.
    (g) Imprisonment means confinement in a jail, minimum security 
facility, community corrections facility, house arrest with electronic 
monitoring, inpatient rehabilitation or treatment center, or other 
facility, provided the individual under confinement is in fact being 
detained.
    (h) Mandatory sentence means a sentence that cannot be waived, 
suspended, or otherwise reduced by the State.
    (i) Motor vehicle means a vehicle driven or drawn by mechanical 
power and manufactured primarily for use on public highways, but does 
not include a vehicle operated solely on a rail line or a commercial 
vehicle.
    (j) NHTSA means the National Highway Traffic Safety Administration.
    (k) Repeat intoxicated driver means a person who has been convicted 
of driving while intoxicated or driving under the influence of alcohol 
more than once in any five-year period.
    (l) Repeat intoxicated driver law means a State law or combination 
of laws or programs that impose the minimum penalties specified in 
Sec.  1275.4 for all repeat intoxicated drivers.
    (m) State means any of the 50 States, the District of Columbia or 
the Commonwealth of Puerto Rico.


Sec.  1275.4  Compliance criteria.

    (a) To avoid the reservation of funds specified in Sec.  1275.6, a 
State must enact and enforce a repeat intoxicated driver law that 
establishes, as a minimum penalty, that all repeat intoxicated drivers:
    (1) Receive, for a period of not less than one year, one or more of 
the following penalties:
    (i) A suspension of all driving privileges;
    (ii) A restriction on driving privileges that limits the individual 
to operating only motor vehicles with an ignition interlock device 
installed, unless a special exception described in paragraph (b) of 
this section applies; or
    (iii) A restriction on driving privileges that limits the 
individual to operating motor vehicles only if participating in, and 
complying with, a 24-7 sobriety program;
    (2) Receive an assessment of their degree of alcohol abuse, and 
treatment as appropriate; and
    (3) Except as provided in Sec.  1275.5, receive a mandatory 
sentence of--
    (i) Not less than five days (120 hours) of imprisonment or 30 days 
(240 hours) of community service for a second offense; and
    (ii) Not less than ten days (240 hours) of imprisonment or 60 days 
(480 hours) of community service for a third or subsequent offense.
    (b) Special exceptions. As used in paragraph (a)(1)(ii) of this 
section, special exception means an exception under a State alcohol-
ignition interlock law for the following circumstances only:
    (1) The individual is required to operate an employer's motor 
vehicle in the course and scope of employment and the business entity 
that owns the

[[Page 67169]]

vehicle is not owned or controlled by the individual; or
    (2) The individual is certified by a medical doctor as being unable 
to provide a deep lung breath sample for analysis by an ignition 
interlock device.


Sec.  1275.5  ``General practice'' certification option.

    (a) Notwithstanding Sec.  1275.4(a)(3), a State that otherwise 
meets the requirements of Sec.  1275.4 may comply with 23 U.S.C. 164 
and this part based on the State's ``general practice'' for 
incarceration. A State electing this option shall--
    (1) If the State law does not comply with the requirements of Sec.  
1275.4(a)(3)(i), submit the following certification signed by the 
Governor's Representative for Highway Safety:

    I, [Name], Governor's Representative for Highway Safety, certify 
that, in [State name], at least 75 percent of repeat intoxicated 
drivers receive a mandatory sentence of imprisonment for a second 
offense, as those terms are defined in 23 CFR 1275.3. This 
certification is based on data from the period of twelve consecutive 
months of the calendar year immediately preceding the date of this 
certification. I sign this certification based on personal knowledge 
and other appropriate inquiry. [Signature of Governor's 
Representative for Highway Safety] [Date of signature]

    (2) If the State law does not comply with the requirements of Sec.  
1275.4(a)(3)(ii), submit the following certification signed by the 
Governor's Representative for Highway Safety:

    I, [Name], Governor's Representative for Highway Safety, certify 
that, in [State name], at least 75 percent of repeat intoxicated 
drivers receive a mandatory sentence of not less than ten days (240 
hours) of imprisonment for a third or subsequent offense, as those 
terms are defined in 23 CFR 1275.3. This certification is based on 
data from the period of twelve consecutive months of the calendar 
year immediately preceding the date of this certification. I sign 
this certification based on personal knowledge and other appropriate 
inquiry. [Signature of Governor's Representative for Highway Safety] 
[Date of signature]

    (b) A State electing the option under this section must submit a 
new certification to the appropriate NHTSA Regional Administrator by 
not later than October 1 of each fiscal year to avoid the reservation 
of funds specified in Sec.  1275.6. The State is encouraged to submit 
the certification by August 15 to avoid any delay in release of funds 
on October 1 of that calendar year while NHTSA evaluates its 
certification.


Sec.  1275.6  Reservation of funds.

    (a) On October 1 of each fiscal year, if a State has not enacted or 
is not enforcing a law that complies with Sec.  1275.4, FHWA will 
reserve an amount equal to 2.5 percent of the funds apportioned to the 
State for that fiscal year under each of 23 U.S.C. 104(b)(1) and 
(b)(2).
    (b) The reservation of funds will be made based on proportionate 
amounts from each of the apportionments under 23 U.S.C. 104(b)(1) and 
(b)(2). The State's Department of Transportation will have 30 days from 
the date the funds are reserved under this section to notify FHWA, 
through the appropriate Division Administrator, if it would like to 
change the distribution of the amounts reserved between 23 U.S.C. 
104(b)(1) and (b)(2).


Sec.  1275.7  Use of reserved funds.

    (a) Not later than 60 days after the funds are reserved under Sec.  
1275.6, the Governor's Representative for Highway Safety and the Chief 
Executive Officer of the State's Department of Transportation for each 
State must jointly identify, in writing to the appropriate NHTSA 
Regional Administrator and FHWA Division Administrator, how the funds 
will be programmed between alcohol-impaired driving programs under 
paragraph (c) of this section and highway safety improvement program 
activities under paragraph (d) of this section. Funds will remain 
reserved until this notification is provided by the State.
    (b) As soon as practicable after NHTSA and FHWA receive the 
notification described in paragraph (a) of this section, the Secretary 
will:
    (1) Transfer the reserved funds identified by the State for 
alcohol-impaired driving programs under paragraph (c) of this section 
to the apportionment of the State under 23 U.S.C. 402; and
    (2) Release the reserved funds identified by the State for highway 
safety improvement program activities under paragraph (d) of this 
section to the State Department of Transportation.
    (c) Any funds transferred under paragraph (b)(1) of this section 
shall be--
    (1) Used for approved projects for alcohol-impaired driving 
countermeasures; or
    (2) Directed to State and local law enforcement agencies for 
enforcement of laws prohibiting driving while intoxicated or driving 
under the influence and other related laws (including regulations), 
including the purchase of equipment, the training of officers, and the 
use of additional personnel for specific alcohol-impaired driving 
countermeasures, dedicated to enforcement of the laws (including 
regulations).
    (d) Any funds released under paragraph (b)(2) of this section shall 
be used for highway safety improvement program activities eligible 
under 23 U.S.C. 148.
    (e) Once the funds have been transferred or released under 
paragraph (b) of this section, the State may not revise the 
notification described in paragraph (a) of this section identifying how 
the funds will be programmed between alcohol-impaired driving programs 
and highway safety improvement program activities.
    (f) The Federal share of the cost of any project carried out with 
the funds transferred or released under paragraph (b) of this section 
is 100 percent.
    (g)(1) If any funds are transferred under paragraph (b)(1) of this 
section to the apportionment of a State under Section 402 for a fiscal 
year, the amount of obligation authority determined under paragraph 
(g)(2) of this section shall be transferred for carrying out projects 
described in paragraph (c) of this section.
    (2) The obligation authority referred to in paragraph (g)(1) of 
this section shall be transferred from the obligation authority 
distributed for the fiscal year to the State for Federal-aid highways 
and highway safety construction programs, and the amount shall be 
determined by multiplying:
    (i) The amount of funds transferred under paragraph (b)(1) of this 
section to the apportionment of the State under Section 402 for the 
fiscal year; by
    (ii) The ratio that:
    (A) The amount of obligation authority distributed for the fiscal 
year to the State for Federal-aid highways and highway safety 
construction programs; bears to
    (B) The total of the sums apportioned to the State for Federal-aid 
highways and highway safety construction programs (excluding sums not 
subject to any obligation limitation) for the fiscal year.
    (h) Notwithstanding any other provision of law, no limitation on 
the total obligations for highway safety programs under Section 402 
shall apply to funds transferred under paragraph (b)(1) of this 
section.


Sec.  1275.8  Procedures affecting States in noncompliance.

    (a) Each fiscal year, each State determined to be in noncompliance 
with 23 U.S.C. 164 and this part will be advised of the funds reserved 
from apportionment under Sec.  1275.6 in the notice of apportionments 
required

[[Page 67170]]

under 23 U.S.C. 104(e), which normally occurs on October 1.
    (b) Each State whose funds are reserved under Sec.  1275.6 will be 
afforded 30 days from the date of issuance of the notice of 
apportionments described in paragraph (a) of this section to submit 
documentation showing why it is in compliance (which may include a 
``general practice'' certification under Sec.  1275.5). Documentation 
must be submitted to the appropriate NHTSA Regional Administrator. If 
such documentation is provided, a reservation will remain in place on 
the State's affected funds while the agencies consider the information. 
If the agencies affirm the noncompliance determination, the State will 
be notified of the decision and the affected funds will be processed in 
accordance with the requests regarding the derivation and distribution 
of funds provided by the State as required by Sec. Sec.  1275.6(b) and 
1275.7(a).


Sec.  1275.9  State' responsibilities regarding compliance.

    (a) States are responsible for ensuring compliance with 23 U.S.C. 
164 and this part.
    (b) A State that has been determined to be in compliance with the 
requirements of 23 U.S.C. 164 and this part must promptly notify the 
appropriate NHTSA Regional Administrator in writing of any change or 
change in enforcement of the State's repeat intoxicated driver law, 
identifying the specific change(s).

    Dated: September 27, 2016, under authority delegated in 49 CFR 
1.95.
Mark R. Rosekind,
Administrator, National Highway Traffic Safety Administration.
    Dated: September 27, 2016, under authority delegated in 49 CFR 
1.85.
Gregory G. Nadeau,
Administrator, Federal Highway Administration.
[FR Doc. 2016-23788 Filed 9-28-16; 4:15 pm]
BILLING CODE 4910-59-P



                                                  67158            Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations

                                                  globally interoperable international                       (f) Limitation of validity. The validity           DEPARTMENT OF TRANSPORTATION
                                                  travel document.                                        period of any passport may be limited
                                                  ■ 4. Revise § 51.4 to read as follows:                  by the Department to less than the                    National Highway Traffic Safety
                                                                                                          normal validity period. The bearer of a               Administration
                                                  § 51.4   Validity of passports.                         limited passport may apply for a new
                                                     (a) Signature of bearer. A passport                  passport, using the proper application                Federal Highway Administration
                                                  book is valid only when signed by the                   and submitting the limited passport,
                                                  bearer in the space designated for                      applicable fees, photographs, and                     23 CFR Parts 1270 and 1275
                                                  signature, or, if the bearer is unable to               additional documentation, if required,                [Docket No. NHTSA–2016–0099]
                                                  sign, signed by a person with legal                     to support the issuance of a new
                                                  authority to sign on his or her behalf. A                                                                     RIN 2127–AL45
                                                                                                          passport.
                                                  passport card is valid without the
                                                                                                             (g) Invalidity. A United States                    Regulatory Update of Transfer and
                                                  signature of the bearer.
                                                                                                          passport is invalid as soon as:                       Sanction Programs
                                                     (b) Period of validity of a regular
                                                  passport and a passport card. (1) A                        (1) The Department has sent or                     AGENCY:  National Highway Traffic
                                                  regular passport or passport card issued                personally delivered a written notice to              Safety Administration (NHTSA) and
                                                  to an applicant 16 years of age or older                the bearer stating that the passport has              Federal Highway Administration
                                                  is valid for ten years from date of issue               been revoked; or                                      (FHWA), Department of Transportation
                                                  unless the Department limits the                           (2) The passport has been reported as              (DOT).
                                                  validity period to a shorter period.                                                                          ACTION: Interim final rule; request for
                                                                                                          lost or stolen to the Department, a U.S.
                                                     (2) A regular passport or passport card                                                                    comments.
                                                                                                          passport agency or a diplomatic or
                                                  issued to an applicant under 16 years of
                                                                                                          consular post abroad and the                          SUMMARY:   This action revises the
                                                  age is valid for five years from date of
                                                  issue unless the Department limits the                  Department has recorded the reported                  Federal implementing regulations for
                                                  validity period to a shorter period.                    loss or theft; or                                     the Section 154 (Open Container) and
                                                     (3) A regular passport for which                        (3) The passport is cancelled by the               Section 164 (Repeat Intoxicated Driver)
                                                  payment of the fee has been excused is                  Department (physically, electronically,               programs as a result of enactment of the
                                                  valid for a period of five years from the               or otherwise) upon issuance of a new                  Fixing America’s Surface Transportation
                                                  date issued unless limited by the                       passport of the same type to the bearer;              (FAST) Act. It incorporates the new
                                                  Department to a shorter period.                         or                                                    compliance criteria for the Section 164
                                                     (c) Period of validity of a service                                                                        program and updates the regulations to
                                                                                                             (4) The Department has sent a written
                                                  passport. The period of validity of a                                                                         reflect current practice. This document
                                                                                                          notice to the bearer that the passport has            is being issued as an interim final rule
                                                  service passport, unless limited by the                 been invalidated because the
                                                  Department to a shorter period, is five                                                                       to ensure that States receive instructions
                                                                                                          Department has not received the                       that are important to upcoming
                                                  years from the date of issue, or so long
                                                                                                          applicable fees; or                                   compliance determinations to be made
                                                  as the bearer maintains the status
                                                  pursuant to which the service passport                     (5) The passport has been materially               on October 1, 2016. The agencies
                                                  is issued, whichever is shorter. A                      changed in physical appearance or                     request comments on this rule. The
                                                  service passport which has not expired                  composition, or contains a damaged,                   agencies will publish a document
                                                  must be returned to the Department                      defective or otherwise nonfunctioning                 responding to any comments received
                                                  upon the termination of the bearer’s                    chip, or includes unauthorized changes,               and, if appropriate, will amend
                                                  status or at such other time as the                     obliterations, entries or photographs, or             provisions of the regulations.
                                                  Department may determine.                               has observable wear or tear that renders              DATES: This interim final rule is
                                                     (d) Period of validity of an official                it unfit for use as a travel document, and            effective on October 1, 2016. Comments
                                                  passport. The period of validity of an                  the Department either takes possession                concerning this interim final rule are
                                                  official passport, unless limited by the                of the passport or sends a written notice             due on November 30, 2016.
                                                  Department to a shorter period, is five                 to the bearer); or                                    ADDRESSES: You may submit comments
                                                  years from the date of issue, or so long                                                                      using the number identified in the
                                                  as the bearer maintains his or her                         (6) The bearer of a special issuance
                                                                                                          passport no longer maintains the status               heading of this document by any of the
                                                  official status, whichever is shorter. An                                                                     following methods:
                                                                                                          pursuant to which the passport was
                                                  official passport which has not expired                                                                          • Federal eRulemaking Portal: Go to
                                                  must be returned to the Department                      issued; or
                                                                                                                                                                http://www.regulations.gov. Follow the
                                                  upon the termination of the bearer’s                       (7) The Department has sent a written              online instructions for submitting
                                                  official status or at such other time as                notice to the bearer, directly or through             comments.
                                                  the Department may determine.                           the bearer’s employing agency, stating                   • Mail: Docket Management Facility,
                                                     (e) Period of validity of a diplomatic               that a special issuance passport has                  M–30, U.S. Department of
                                                  passport. The period of validity of a                   been cancelled by the Department.                     Transportation, West Building, Ground
                                                  diplomatic passport, unless limited by                                                                        Floor, Rm. W12–140, 1200 New Jersey
                                                                                                            Dated: September 23, 2016.
                                                  the Department to a shorter period, is                                                                        Avenue SE., Washington, DC 20590.
                                                  five years from the date of issue, or so                David T. Donahue,                                        • Hand Delivery or Courier: West
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                  long as the bearer maintains his or her                 Acting Assistant Secretary, Bureau of                 Building Ground Floor, Room W12–140,
                                                  diplomatic status, whichever is shorter.                Consular Affairs, Department of State.                1200 New Jersey Avenue SE., between
                                                  A diplomatic passport which has not                     [FR Doc. 2016–23568 Filed 9–29–16; 8:45 am]           9 a.m. and 5 p.m. Eastern Time, Monday
                                                  expired must be returned to the                         BILLING CODE 4710–13–P                                through Friday, except Federal holidays.
                                                  Department upon the termination of the                                                                           • Fax: (202) 493–2251.
                                                  bearer’s diplomatic status or at such                                                                            Regardless of how you submit your
                                                  other time as the Department may                                                                              comments, please mention the docket
                                                  determine.                                                                                                    number of this document.


                                             VerDate Sep<11>2014   18:28 Sep 29, 2016   Jkt 238001   PO 00000   Frm 00068   Fmt 4700   Sfmt 4700   E:\FR\FM\30SER1.SGM   30SER1


                                                                   Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations                                       67159

                                                     You may also call the Docket at 202–                 authorization enacted in over ten years               transferred to the State’s apportionment
                                                  366–9324.                                               that provides long-term funding                       under 23 U.S.C. 402 (Section 402) if the
                                                     Instructions: For detailed instructions              certainty for surface transportation. The             State failed to enact and enforce a
                                                  on submitting comments and additional                   FAST Act amended 23 U.S.C. 154                        conforming ‘‘open container’’ law.
                                                  information on the rulemaking process,                  (Section 154) and 23 U.S.C. 164 (Section              These funds could be used for alcohol-
                                                  see the Public Participation heading of                 164), which address the serious national              impaired driving countermeasures or
                                                  the Supplementary Information section                   problems of impaired driving by                       the enforcement of driving while
                                                  of this document. Note that all                         encouraging States to meet minimum                    intoxicated laws, or States could elect to
                                                  comments received will be posted                        standards for their open container laws               use all or a portion of the funds for
                                                  without change to http://                               and repeat intoxicated driver laws. The               hazard elimination activities under 23
                                                  www.regulations.gov, including any                      FAST Act built on prior amendments to                 U.S.C. 152.
                                                  personal information provided.                          those sections in the Moving Ahead for                   Under Section 154, to avoid the
                                                     Privacy Act: Please see the Privacy                  Progress in the 21st Century Act (MAP–                transfer of funds, a State must enact and
                                                  Act heading under Regulatory Analyses                   21), Public Law 112–141, signed into                  enforce an open container law ‘‘that
                                                  and Notices.                                            law on July 6, 2012.                                  prohibits the possession of any open
                                                     Docket: All documents in the docket                    The National Highway Traffic Safety                 alcoholic beverage container, or the
                                                  are listed in the http://                               Administration (NHTSA) and the                        consumption of any alcoholic beverage,
                                                  www.regulations.gov index. Publicly                     Federal Highway Administration                        in the passenger area of any motor
                                                  available docket materials are available                (FHWA) (collectively, ‘‘the agencies’’)               vehicle (including possession or
                                                  either electronically in                                are issuing this interim final rule (IFR),            consumption by the driver of the
                                                  www.regulations.gov or in hard copy at                  with immediate effectiveness, to ensure               vehicle) located on a public highway, or
                                                  the Docket Management Facility, M–30,                   that States receive instructions that are             the right-of-way of a public highway, in
                                                  U.S. Department of Transportation,                      important to upcoming compliance                      the State.’’ 23 U.S.C. 154(b)(1). All 50
                                                  West Building, Ground Floor, Room                       determinations to be made on October 1,               States, the District of Columbia, and
                                                  W12–140, 1200 New Jersey Avenue SE.,                    2016, as the changes in the FAST Act                  Puerto Rico are considered to be States
                                                  Washington, DC. The Docket                              are effective on that date. This IFR                  for the purposes of this program.
                                                  Management Facility is open between 9                   amends the Federal implementing                          On October 6, 1998, the agencies
                                                  a.m. and 5 p.m., Eastern Time, Monday                   regulations for Section 154 (23 CFR part              published an interim final rule
                                                  through Friday, except Federal holidays.                1270) and Section 164 (23 CFR part                    implementing the Section 154 program,
                                                                                                          1275) to reflect the changed                          63 FR 53580 (Oct. 6, 1998), followed by
                                                  FOR FURTHER INFORMATION CONTACT:
                                                     NHTSA: For program issues: Barbara                   requirements from the recent Federal                  a final rule published on August 24,
                                                                                                          legislation. At the same time, the                    2000. 65 FR 51532 (Aug. 24, 2000).
                                                  Sauers, Director, Office of Grants
                                                                                                          agencies are taking this opportunity to               Since that time, the minimum
                                                  Management and Operations, Telephone
                                                                                                          update the regulations to improve                     requirements that a State’s open
                                                  number: (202) 366–0144, Email:
                                                                                                          clarity, codify longstanding                          container law must meet to comply with
                                                  Barbara.Sauers@dot.gov. For legal
                                                                                                          interpretation of the statutes and current            Section 154 have not changed. However,
                                                  issues: Russell Krupen, Attorney
                                                                                                          regulations, and streamline procedures                subsequent legislation amended the
                                                  Advisor, Office of Chief Counsel,
                                                                                                          for States.                                           penalty provisions that apply to non-
                                                  Telephone number: (202) 366–1834,
                                                                                                            This preamble will first address the                compliant States. Under current law,
                                                  Email: Russell.Krupen@dot.gov;
                                                                                                          history of and modifications to the                   noncompliance results in the
                                                  Facsimile: (202) 366–3820.
                                                                                                          minimum compliance requirements of                    reservation of funds rather than an
                                                     FHWA: For program issues: Erin
                                                                                                          Section 154 and Section 164,                          immediate transfer to Section 402; funds
                                                  Kenley, Team Leader, Safety Programs
                                                                                                          respectively. It will then address the                are reserved from different Federal-aid
                                                  Implementation and Evaluation Team,
                                                                                                          elements common to both programs,                     highway programs and in a different
                                                  Office of Safety, Telephone number:
                                                                                                          including the penalties for                           amount (based on a percentage defined
                                                  (202) 366–8556, Email: Erin.Kenley@                                                                           in law); the transfer to Section 402 is
                                                  dot.gov. For legal issues: William                      noncompliance, the limitations on use
                                                                                                                                                                dependent upon a State’s election to use
                                                  Winne, Attorney Advisor, Office of                      of funds associated with
                                                                                                                                                                funds for alcohol impaired driving
                                                  Chief Counsel, Telephone number: (202)                  noncompliance, and the responsibilities
                                                                                                                                                                countermeasures; and funds may be
                                                  366–1397, Email: William.Winne@                         of compliant and non-compliant States.
                                                                                                                                                                used for highway safety improvement
                                                  dot.gov.                                                II. Section 154: Open Container Laws                  program activities eligible under 23
                                                  SUPPLEMENTARY INFORMATION:                                                                                    U.S.C. 148 rather than hazard
                                                                                                          A. Background
                                                                                                                                                                elimination activities. The Federal
                                                  Table of Contents                                          The Transportation Equity Act for the              implementing regulations were never
                                                  I. Introduction                                         21st Century (TEA–21), Public Law                     updated to reflect these statutory
                                                  II. Section 154: Open Container Laws                    105–178, was signed into law on June 9,               changes governing procedures.
                                                  III. Section 164: Repeat Intoxicated Driver             1998. On July 22, 1998, the TEA–21                       This IFR updates the Federal
                                                        Laws                                              Restoration Act, Public Law 105–206 (a                implementing regulations to reflect
                                                  IV. Non-Compliance Penalties and                        technical corrections bill), was enacted              these procedural changes. In addition, it
                                                        Procedures
                                                  V. Notice and Comment, Effective Date, and
                                                                                                          to restore provisions that were agreed to             makes changes to improve clarity,
                                                        Request for Comments                              by the conferees to TEA–21, but were                  codify longstanding interpretations of
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                  VI. Regulatory Analyses and Notices                     not included in the conference report.                the Federal statute and regulations,
                                                  VII. Public Participation                               Section 1405 of the TEA–21 Restoration                streamline procedures for States, and
                                                                                                          Act amended chapter 1 of title 23,                    eliminate regulatory provisions that
                                                  I. Introduction                                         United States Code (U.S.C.), by adding                were not effectuated in practice for
                                                    On December 4, 2015, the President                    Section 154, which established a                      reasons discussed below. These changes
                                                  signed into law the Fixing America’s                    transfer program under which a                        are intended to ensure a uniform
                                                  Surface Transportation Act (FAST Act),                  percentage of a State’s Federal-aid                   understanding among the States of the
                                                  Public Law 114–94, the first                            highway construction funds would be                   minimum requirements their open


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                                                  67160            Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations

                                                  container laws must meet. Revisions to                  under the Federal statute. Due to the                 to the alcoholic beverage, which is the
                                                  the procedures for demonstrating                        preponderance of these laws in States,                purpose of open container laws.
                                                  compliance, the penalties for                           the agencies determined that this                       This IFR also moves the location of
                                                  noncompliance, and the responsibilities                 clarification is necessary. Recorked or               the phrase ‘‘in a motor vehicle that is
                                                  of compliant and non-compliant States                   resealed alcoholic beverages containers               not equipped with a trunk’’ to remove
                                                  are discussed later in the preamble as                  must be stored outside of the passenger               any ambiguity that this is a prerequisite
                                                  those aspects are common to the Section                 area, such as in the trunk of a motor                 for allowing placement of an open
                                                  154 program and the Section 164                         vehicle.                                              alcoholic beverage container behind the
                                                  program.                                                                                                      last upright seat or in an area not
                                                                                                          2. Compliance Criteria (23 CFR                        normally occupied by the driver or a
                                                  B. Compliance Criteria for State Open                   1270.4(a)–(c))
                                                  Container Laws                                                                                                passenger. No substantive change is
                                                                                                            Congress has made no changes to the                 intended—the agencies have always
                                                    NHTSA is delegated the authority by                   substantive compliance criteria of                    interpreted and applied this provision
                                                  the Secretary of Transportation to                      Section 154 since the inception of the                in this manner.
                                                  determine State compliance under                        program. Therefore, the agencies are not                The Federal implementing regulations
                                                  Section 154 (49 CFR 1.95(f)). While                     making any substantive changes to these               require a State’s open container law to
                                                  Congress has not changed the minimum                    sections of the regulations. The six                  apply to all occupants of a motor
                                                  requirements that a State’s open                        compliance criteria are discussed                     vehicle. However, the Federal statute
                                                  container law must meet to comply with                  extensively in the interim final rule (63             and implementing regulations permit
                                                  Section 154 since the inception of the                  FR 53580 [Oct. 6, 1998]) and final rule               exceptions allowing a passenger, but
                                                  program, NHTSA’s experience                             (65 FR 51532 [Aug. 24, 2000]) that first              never a driver, to possess an open
                                                  implementing the compliance criteria                    implemented the program. Those                        alcoholic beverage container or
                                                  since the regulations were finalized in                 discussions provide background and                    consume an alcoholic beverage in the
                                                  2000 suggests the need to provide                       explanations regarding the Federal                    passenger area of ‘‘a motor vehicle
                                                  additional clarity to the States on                     minimum requirements.                                 designed, maintained, or used primarily
                                                  particular aspects of the requirements.                                                                       for the transportation of persons for
                                                  States are responsible for ensuring and                 3. Exceptions (23 CFR 1270.4(d))                      compensation, or in the living quarters
                                                  maintaining their own compliance with                                                                         of a house coach or house trailer.’’ 23
                                                                                                             The Federal implementing regulations
                                                  these requirements. The agencies                                                                              CFR 1270.4(d)(2). The agencies are
                                                                                                          require a State’s open container law to
                                                  believe that the discussion in this                                                                           making technical corrections to this
                                                                                                          apply to ‘‘the passenger area of any
                                                  preamble and the revisions to the                                                                             provision that do not change its
                                                                                                          motor vehicle,’’ with passenger area
                                                  regulations will allow States to better                                                                       application.
                                                  understand the program and attain and                   meaning ‘‘the area designed to seat the
                                                  maintain compliance. These revisions                    driver and passengers while the motor                 III. Section 164: Repeat Intoxicated
                                                  are not intended to substantively amend                 vehicle is in operation and any area that             Driver Laws
                                                  the compliance requirements of the                      is readily accessible to the driver or a
                                                                                                          passenger while in their seating                      A. Background
                                                  Section 154 program.
                                                                                                          positions, including the glove                           Section 1406 of the TEA–21
                                                  1. Definitions (23 CFR 1270.3)                          compartment.’’ 23 CFR 1270.3(g),                      Restoration Act amended chapter 1 of
                                                     The agencies are adding definitions                  1270.4(b)(2). However, certain                        title 23, U.S.C., by adding Section 164,
                                                  for the terms ‘‘FHWA,’’ ‘‘NHTSA,’’ and                  exceptions to this rule are permitted                 which established a transfer program
                                                  ‘‘open container law’’ and eliminating                  provided they comply with the                         under which a percentage of a State’s
                                                  the definition for ‘‘enact and enforce.’’               requirements in 23 CFR 1270.4(d)(1).                  Federal-aid highway construction funds
                                                  The added definitions are for terms used                   The Federal regulations have long                  would be transferred to the State’s
                                                  in the regulation, while the elimination                permitted possession of an open                       apportionment under Section 402 if the
                                                  of the definition of ‘‘enact and enforce’’              alcoholic beverage container in a locked              State failed to enact and enforce a
                                                  is simply because the term is plain and                 glove compartment. NHTSA has                          conforming ‘‘repeat intoxicated driver’’
                                                  does not need a definition. The                         accepted as compliant a State provision               law. As with Section 154, transfer funds
                                                  regulations continue to require a State to              permitting storage of an open container               could be used for alcohol-impaired
                                                  ‘‘enact and enforce’’ a compliant law.                  in a locked center console because a                  driving countermeasures or the
                                                     The agencies are amending the                        locked center console is functionally                 enforcement of driving while
                                                  definition of ‘‘open alcoholic beverage                 equivalent to a locked glove                          intoxicated laws, or States could elect to
                                                  container’’ to add the parenthetical                    compartment. This IFR logically extends               use all or a portion of the funds for
                                                  phrase ‘‘(regardless of whether it has                  that exception to allow possession of an              hazard elimination activities under 23
                                                  been closed or resealed.)’’ 23 CFR                      open alcoholic beverage container in                  U.S.C. 152.
                                                  1270.3(e).1 This is intended to make                    any locked container (including a                        Under Section 164, to avoid the
                                                  clear that ‘‘cork and carry’’ or ‘‘resealed             locked fixed console or a locked glove                transfer of funds, a State must enact and
                                                  wine container’’ laws exempting a                       compartment). The agencies emphasize                  enforce a repeat intoxicated driver law
                                                  recorked or resealed alcoholic beverage                 that this exception does not permit the               that establishes, at minimum, certain
                                                  container from the State’s open                         possession in the passenger area of an                specified penalties for second and
                                                  container laws are not allowed under                    open alcoholic beverage container in                  subsequent convictions of driving while
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                                                  the Federal law. Recorking or resealing                 tamper-evident packaging. (See the                    intoxicated or driving under the
                                                  does not negate the fact that the                       earlier discussion about ‘‘cork and                   influence. As originally enacted, Section
                                                  contents in the bottle have been                        carry’’ and ‘‘resealed wine container’’               164 required that States impose the
                                                  partially removed, a direct concern                     provisions.) While tamper-evident                     following minimum penalties: A one-
                                                                                                          packaging may assist law enforcement                  year driver’s license suspension; the
                                                    1 Throughout this preamble, citations to the

                                                  Section 154 and Section 164 implementing
                                                                                                          officers in identifying whether                       impoundment or immobilization of, or
                                                  regulations refer to the version as amended by the      consumption of the alcoholic beverage                 the installation of an ignition interlock
                                                  IFR.                                                    has occurred, it does not restrict access             system on, the repeat intoxicated


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                                                                   Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations                                        67161

                                                  driver’s motor vehicles; an assessment                  1. Definitions (23 CFR 1275.3)                        year hard license suspension or
                                                  of the repeat intoxicated driver’s degree                  The agencies are adding definitions                revocation. Under the Federal
                                                  of alcohol abuse, and treatment as                      for ‘‘FHWA’’ and ‘‘NHTSA’’ and                        implementing regulations, during the
                                                  appropriate; and the sentencing of the                  eliminating the definition for ‘‘enact and            one-year term, the offender could not be
                                                  repeat intoxicated driver to a minimum                  enforce,’’ consistent with the approach               eligible for any driving privileges, such
                                                  number of days of imprisonment or                                                                             as a restricted or hardship license.
                                                                                                          for 23 CFR 1270.3. The agencies are
                                                  community service. All 50 States, the                                                                         Because the Federal implementing
                                                                                                          eliminating the definitions for ‘‘driver’s
                                                  District of Columbia, and Puerto Rico                                                                         regulations have not been updated since
                                                                                                          motor vehicle’’ and ‘‘impoundment or
                                                  are considered to be States for the                                                                           2000, this language remained in the
                                                                                                          immobilization,’’ as the compliance
                                                  purposes of this program.                                                                                     Code of Federal Regulations. The
                                                                                                          criterion to which these applied was
                                                                                                                                                                SAFETEA–LU Technical Corrections
                                                    On October 19, 1998, the agencies                     repealed by the FAST Act. The agencies
                                                                                                                                                                Act of 2008 and MAP–21 made further
                                                  published an interim final rule that                    are eliminating the definition for
                                                                                                                                                                changes that were effectuated by the
                                                  implemented the Section 164 program,                    ‘‘license suspension,’’ as the compliance
                                                                                                                                                                agencies, but that were never written
                                                  63 FR 55796 (Oct. 19, 1998), followed                   criterion to which it applied has been
                                                                                                                                                                into the regulations.
                                                  by a final rule published on October 4,                 reworded, rendering the definition                       The FAST Act completely rewrote the
                                                  2000. 65 FR 59112 (Oct. 4, 2000). The                   superfluous. The agencies are adding a                license sanction criterion in 23 U.S.C.
                                                  SAFETEA–LU Technical Corrections                        definition for ‘‘24–7 sobriety program’’              164(a)(5)(A) to loosen the requirements
                                                  Act of 2008, Public Law 110–244                         due to FAST Act revisions to the general              and provide for additional compliance
                                                  (enacted June 6, 2008), amended some                    compliance criteria. Because the                      options for States. This IFR codifies the
                                                  of the minimum penalties States must                    definition of the term in the FAST Act                revised criterion. Under today’s IFR, all
                                                  impose on repeat offenders, and both                    cross-references 23 U.S.C. 405(d)(7)(A),              repeat offenders must receive one or a
                                                  MAP–21 and the FAST Act further                         the agencies have similarly tied the                  combination of three license sanctions
                                                  amended these minimum penalties.                        definition here to the meaning given to               for a period of not less than one year
                                                  These Acts also updated, in the same                    it in NHTSA’s Section 405                             (365 days). States may therefore ‘‘mix-
                                                  ways as Section 154, the penalty                        implementing regulations (see 23 CFR                  and-match’’ these sanctions, provided
                                                  provisions that apply to States that are                1300.23(b)). 23 CFR 1270.3(a). This                   that, in combination, they last for the
                                                  not compliant with the program. Despite                 necessitates adding a reference to a                  full one year period.
                                                  these significant statutory changes over                ‘‘combination of laws or programs’’ to                   The first license sanction is a
                                                  the past eight years, the Federal                       the definition of ‘‘repeat intoxicated                suspension of all driving privileges.
                                                  implementing regulations have not been                  driver law’’ to accommodate these 24–                 During that period, the repeat offender
                                                  updated since 2000.                                     7 sobriety programs. Finally, the                     is not permitted to operate any motor
                                                                                                          agencies are adding a definition for                  vehicle under any circumstances. The
                                                    This IFR updates the minimum
                                                                                                          ‘‘mandatory sentence.’’ As used in                    second license sanction is a restriction
                                                  compliance criteria based on these
                                                                                                          combination with ‘‘imprisonment,’’ the                on driving privileges that limits the
                                                  legislative changes, as well as to
                                                                                                          definition is intended to ensure that                 individual to operating only motor
                                                  improve clarity, codify longstanding
                                                                                                          repeat offenders are in fact detained for             vehicles with an ignition interlock
                                                  interpretations, streamline procedures
                                                                                                          the minimum periods specified.                        device installed. Section 164 and the
                                                  for States, and eliminate regulatory
                                                                                                             Although the IFR makes no change to                implementing regulations permit certain
                                                  provisions that were not effectuated in
                                                                                                          the definition of ‘‘repeat intoxicated                limited exceptions to this license
                                                  practice for reasons discussed below. As
                                                                                                          driver,’’ the agencies emphasize that a               sanction, discussed later in this
                                                  with Section 154, these changes are
                                                                                                          State may not expunge an offender’s                   preamble. The third license sanction is
                                                  intended to ensure a uniform
                                                                                                          prior conviction in order to exclude it               that the repeat offender may only
                                                  understanding among the States of the
                                                                                                          from the five-year lookback period. Any               operate a motor vehicle provided the
                                                  minimum requirements their repeat
                                                                                                          mechanism (including expungement)                     individual is participating in, and
                                                  intoxicated driver laws must meet.
                                                                                                          that causes a State to exclude from                   complying with, a 24–7 sobriety
                                                  Revisions to the procedures for
                                                                                                          consideration prior convictions of                    program. For a State’s law or 24–7
                                                  demonstrating compliance, the penalties
                                                                                                          driving while intoxicated or driving                  sobriety program to comply with this
                                                  for noncompliance, and the
                                                                                                          under the influence, when such                        requirement, it must make clear that any
                                                  responsibilities of compliant and non-
                                                                                                          convictions occurred within the prior                 participant who is kicked out of the
                                                  compliant States are discussed later in
                                                                                                          five years, generally does not comply                 program must be subject to either a hard
                                                  the preamble as those apply also to the
                                                                                                          with Section 164.                                     license suspension or an ignition
                                                  Section 154 program.
                                                                                                                                                                interlock restriction, as provided under
                                                                                                          2. Compliance Criteria (23 CFR
                                                  B. Minimum Repeat Intoxicated Driver                                                                          the other two license sanctions, for the
                                                                                                          1275.4(a))
                                                  Law Requirements                                                                                              remainder of the one year sanction
                                                                                                            The substantive compliance criteria of              period.
                                                    Unlike the Section 154 program,                       Section 164 have been significantly
                                                  Congress has made substantive                           amended since their inception. This IFR               b. Vehicle Sanction (Repealed)
                                                  amendments to the requirements that a                   updates the compliance criteria to                       The TEA–21 Restoration Act required
                                                  State’s repeat intoxicated driver law                   reflect the current law, as most recently             all repeat offenders to ‘‘be subject to the
                                                  must meet to comply with Section 164.                   amended by the FAST Act. In addition,                 impoundment or immobilization of each
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                                                  Many of the revisions described in this                 the agencies are providing clarifications             of the individual’s motor vehicles or the
                                                  section codify those substantive                        as appropriate.                                       installation of an ignition interlock
                                                  statutory changes, as the regulations                                                                         system on each of the motor vehicles.’’
                                                  have not been updated since 2000. In                    a. License Sanction (23 CFR                           The Federal implementing regulations
                                                  other cases, the agencies are simply                    1275.4(a)(1))                                         further required impoundment or
                                                  improving the clarity of the regulations                  Section 164, as created by the TEA–                 immobilization to occur during the one-
                                                  to reflect longstanding application of the              21 Restoration Act, required all repeat               year license suspension, while
                                                  Federal statute since 2000.                             offenders to receive a minimum one-                   installation of an ignition interlock


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                                                  67162            Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations

                                                  device was required to occur at the                     is a form of labor that occurs while the              individual will receive 10 days of
                                                  conclusion of the one-year license                      detainee is awake. A ‘‘day’’ for purposes             incarceration.’’ 23 U.S.C. 164(a)(5)(C)(i)–
                                                  suspension. The FAST Act repealed this                  of each of these penalties is therefore               (ii). This IFR establishes the process for
                                                  vehicle sanction. With the vast majority                not equivalent. NHTSA’s longstanding                  a State to submit a ‘‘general practice’’
                                                  of States moving to ignition interlocks                 interpretation has been that one ‘‘day’’              certification as an alternative means of
                                                  as a license sanction, the vehicle                      of imprisonment equals 24 hours, and                  satisfying the minimum sentence
                                                  sanction requirement was largely                        one ‘‘day’’ of community service equals               criterion.
                                                  redundant. This IFR removes these                       8 hours (a work day). The agencies have                  The IFR sets forth separate
                                                  requirements from 23 CFR 1275.4.                        added corresponding hour equivalents                  certifications for second offender
                                                  c. Assessment and Treatment (23 CFR                     to the minimum sentence criterion.                    incarceration and for third and
                                                  1275.4(a)(2))                                                                                                 subsequent offender incarceration. This
                                                                                                          3. Exceptions (23 CFR 1275.4(b), 1275.5)
                                                                                                                                                                will allow maximum flexibility to
                                                     Under Section 164, the State law must                a. Special Exceptions (23 CFR 1275.4(b))              States, because it allows a State whose
                                                  require that all repeat intoxicated                                                                           laws are partly in compliance to satisfy
                                                  drivers undergo an assessment of their                     One of the three sanctions under the
                                                                                                          license sanction criterion described                  the minimum sentence criterion through
                                                  degree of alcohol abuse, and it must                                                                          a combination of statute and
                                                  authorize the imposition of treatment as                above is restriction of the repeat
                                                                                                          offender’s driving privileges to the                  certification.
                                                  appropriate. An assessment is required                                                                           To meet the statutory standard of
                                                  of all repeat offenders because it allows               operation of only motor vehicles with
                                                                                                          an ignition interlock device installed.               ‘‘general practice,’’ the agencies have
                                                  for a determination not only of whether                                                                       elected to require a State to certify that
                                                  an offender should undergo treatment,                   However, the FAST Act allows two
                                                                                                          exceptions to this restriction, which the             75 percent of repeat offenders are
                                                  but also of what type and level of
                                                                                                          agencies are adopting in this IFR                     subject to mandatory incarceration. The
                                                  treatment is appropriate for that
                                                                                                          verbatim. (Prior to enactment of the                  agencies believe this percentage is a
                                                  offender. While treatment is not
                                                                                                          FAST Act, neither was allowed under                   reasonable interpretation of what would
                                                  required for all repeat offenders, the
                                                                                                          the Section 164 program.) No other                    constitute ‘‘general practice’’ in a State.
                                                  State must authorize the imposition of
                                                                                                          exceptions to a State’s ignition interlock            Consistent with the FAST Act
                                                  treatment as appropriate. Congress has
                                                                                                          law are permitted.                                    requirements, the certification for a
                                                  not changed this criterion since its
                                                                                                             First, the FAST Act allows a repeat                second offender does not contain a
                                                  inception, and the agencies are making
                                                                                                          offender subject to an ignition interlock             minimum incarceration period, while
                                                  no changes in this IFR.
                                                                                                          restriction to operate an employer’s                  that for third and subsequent offenders
                                                  d. Minimum Sentence (23 CFR                             motor vehicle in the course and scope                 specifies 10 days.
                                                  1275.4(a)(3))                                           of employment without an ignition                        The agencies elected not to base
                                                     Since the beginning of the program,                  interlock device installed, provided the              ‘‘general practice’’ on a State’s average
                                                  Section 164 has required that each State                business entity that owns the vehicle is              incarceration period for repeat
                                                  have a law that imposes a mandatory                     not owned or controlled by the                        offenders. That approach would allow a
                                                  minimum sentence on all repeat                          individual. A State’s exception must                  State to meet the standard for second
                                                  intoxicated drivers. For a second                       explicitly exclude business entities                  offenders if a single offender is
                                                  offense, the law must provide for a                     owned or controlled by the repeat                     sentenced to any period of
                                                  mandatory sentence of not less than 5                   offender or it will not comply with the               incarceration. For third and subsequent
                                                  days of imprisonment or 30 days of                      license sanction criterion. An exclusion              offenders, lengthy prison sentences
                                                  community service. For a third or                       for ‘‘self-employment,’’ for example,                 could skew the average even if the vast
                                                  subsequent offense, the law must                        does not cover all business entities                  majority of offenders received sentences
                                                  provide for a mandatory sentence of not                 potentially owned or controlled by a                  well below 10 days. The agencies do not
                                                  less than 10 days of imprisonment or 60                 repeat offender, and would not allow a                believe such an approach falls within
                                                  days of community service. The terms                    State’s exception to comply with the                  the reasonable meaning of ‘‘general
                                                  ‘‘mandatory sentence’’ and                              license sanction criterion. Second, a                 practice.’’
                                                  ‘‘imprisonment’’ are defined in 23 CFR                  State may except from its ignition                       Each certification is required to be
                                                  1275.3. The FAST Act retains these                      interlock law a repeat offender that is               based on data from the full calendar
                                                  minimum sentence provisions, but                        certified by a medical doctor as being                year immediately preceding the date of
                                                  allows States the option to certify as to               unable to provide a deep lung breath                  certification. In other words, if the State
                                                  their ‘‘general practice’’ for                          sample for analysis by an ignition                    is certifying for fiscal year 2018 (which
                                                  incarceration in lieu of having a                       interlock device.                                     begins on October 1, 2017), the State’s
                                                  compliant mandatory minimum                                                                                   ‘‘general practice’’ certification must be
                                                                                                          b. ‘‘General Practice’’ Certifications (23            based on data from the entire period of
                                                  sentence. The new certification option
                                                                                                          CFR 1275.5)                                           January 1, 2016 through December 31,
                                                  is addressed in the next section
                                                  regarding exceptions.                                      The FAST Act amends the minimum                    2016. The certification must be signed
                                                     In this IFR, the agencies are clarifying             sentence criterion to provide an                      by the Governor’s Representative for
                                                  the number of hours for the various                     alternative compliance option. In lieu of             Highway Safety and must be based on
                                                  sentences identified above that are                     enacting and enforcing a law that                     personal knowledge and other
                                                  considered equivalent to each ‘‘day.’’                  complies with the minimum sentence                    appropriate inquiry.
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                                                  Many States provide for sentencing in                   criterion, a State may certify to its                    Because the State’s ‘‘general practice’’
                                                  terms of hours rather than days. The                    ‘‘general practice’’ of incarceration.                may change over time, the agencies are
                                                  agencies recognize that imprisonment                    According to the FAST Act, the State                  requiring States electing this
                                                  and community service function                          must certify for a second offender that               compliance option to provide a new
                                                  differently. While imprisonment is                      its ‘‘general practice is that such an                certification annually. Although
                                                  generally an extended period of                         individual will be incarcerated’’ and for             certifications are due by October 1 each
                                                  detainment that lasts through waking                    a third or subsequent offender that its               year, States are encouraged to submit
                                                  and sleeping hours, community service                   ‘‘general practice is that such an                    their certification by August 15 to avoid


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                                                                   Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations                                        67163

                                                  any delay in the release of funds on                    and better align them with the order of               not result in any change in how the ratio
                                                  October 1 of that calendar year.                        procedures for States. Not later than 60              is calculated.
                                                                                                          days after the penalty funds are
                                                  IV. Non-Compliance Penalties and                                                                              C. Procedures Affecting States in
                                                                                                          reserved, the Governor’s Representative
                                                  Procedures                                                                                                    Noncompliance (23 CFR 1270.8 and
                                                                                                          for Highway Safety and the Chief
                                                     This section describes the penalties                                                                       1275.8)
                                                                                                          Executive Officer of the State’s
                                                  affecting States that do not comply with                Department of Transportation must                        Under the original Federal
                                                  one or both of the Section 154 and                      jointly identify, in writing, to the                  implementing regulations, the agencies
                                                  Section 164 programs. In general, these                 appropriate NHTSA Regional                            intended for States to be notified of their
                                                  changes merely update the regulations                   Administrator and FHWA Division                       compliance status in FHWA’s advance
                                                  to reflect amendments made by Federal                   Administrator how the penalty funds                   notice of apportionment, normally
                                                  statutes, such as MAP–21. The agencies                  will be distributed for use among                     issued ninety days prior to final
                                                  are also streamlining some of the                       alcohol-impaired driving programs and                 apportionment. Noncompliant States
                                                  procedures that apply to States.                        highway safety improvement program                    were then granted 30 days to submit
                                                                                                          (HSIP) eligible activities under 23 U.S.C.            documentation showing why they were
                                                  A. Reservation of Funds for Non-
                                                                                                          148. The primary change in the IFR is                 in compliance. The agencies would then
                                                  Compliance (23 CFR 1270.6 and 1275.6)
                                                                                                          to reflect the change in available uses               issue a final determination as part of the
                                                     States that fail to enact or enforce                 from hazard elimination to HSIP eligible              final notification of apportionments,
                                                  compliant open container or repeat                      activities, which resulted from Federal               which normally occurs on October 1 of
                                                  intoxicated driver laws by October 1 of                 legislation.                                          each year. While the agencies have
                                                  each fiscal year will have an amount                       The penalty funds will continue to be              strived to notify States of pending
                                                  equal to 2.5 percent of Federal-aid funds               reserved until the State provides this                changes in their compliance status in
                                                  apportioned under 23 U.S.C. 104(b)(1)                   distribution request. As soon as                      the advance notice of apportionment
                                                  and 23 U.S.C. 104(b)(2) for the National                practicable after its receipt by the                  whenever possible, the Federal statute
                                                  Highway Performance Program (NHPP)                      agencies, the funds will either be                    requires formal compliance
                                                  and the Surface Transportation Block                    transferred to the State’s Section 402                determinations to be based on the
                                                  Grant Program (STBG) reserved by                        apportionment for alcohol-impaired                    State’s law enacted and enforced on
                                                  FHWA. The penalties are separate and                    driving programs or released to the State             October 1 of each fiscal year. As a result,
                                                  distinct; a 2.5 percent penalty applies                 Department of Transportation for HSIP                 State compliance status may change up
                                                  separately for each program where non-                  eligible activities, pursuant to the                  to that date, making this system
                                                  compliance occurs. The IFR eliminates                   changes in MAP–21. The Federal                        unworkable in many cases. The IFR
                                                  as obsolete the penalty provisions that                 statutes do not authorize additional                  revises 23 CFR 1270.8 and 1275.8 to
                                                  applied to fiscal years 2001 and 2002. In               transfers between the Section 402 and                 better reflect the actual practice the
                                                  addition, it updates the procedures to                  HSIP programs. As a result, the IFR adds              agencies have undertaken to give States
                                                  reflect the change to a reservation                     that once penalty funds have been                     full opportunity to present additional
                                                  program (rather than immediate transfer                 transferred or released for the fiscal                documentation (with some minor
                                                  to a State’s Section 402 apportionment),                year, States are not able to revise their             changes to streamline the process for
                                                  the change in the penalty amount to 2.5                 request.                                              States).
                                                  percent of Federal-aid funds (rather than                  The allowable uses for funds                          Each State determined to be
                                                  3 percent), and the change in the funds                 (specifically, for alcohol-impaired                   noncompliant with 23 U.S.C. 154 or 23
                                                  from which the penalty is reserved to                   driving programs and HSIP eligible                    U.S.C. 164 receives notice of its
                                                  those apportioned under 23 U.S.C.                       activities) are described in the                      compliance status and the funds being
                                                  104(b)(1) and (b)(2) (rather than 23                    implementing regulations and updated                  reserved from apportionment as part of
                                                  U.S.C. 104(b)(1), (b)(3), and (b)(4)),                  only to reflect the switch from hazard                the final certification of apportionments
                                                  which all resulted from MAP–21.                         elimination to HSIP, pursuant to Federal              required under 23 U.S.C. 104(e), which
                                                     The initial reservation of Federal-aid               legislation. Under both programs, the                 normally occurs on October 1 of each
                                                  funds by FHWA for noncompliant                          Federal share of the cost of any project              fiscal year. All States will be afforded 30
                                                  States will be on a proportional basis                  carried out with penalty funds remains                days from the date the final notice of
                                                  from each of the apportionments under                   100 percent.                                          apportionments is issued to submit
                                                  Sections 104(b)(1) and (b)(2). Each fiscal                 Section 154 and 164 penalty funds are              additional documentation showing why
                                                  year, the State’s Department of                         transferred or released from the State’s              they are in compliance. For the Section
                                                  Transportation must inform FHWA,                        apportionment of contract authority                   164 program, this documentation may
                                                  through the appropriate Division                        under 23 U.S.C. 104(b)(1) and 23 U.S.C.               include a ‘‘general practice’’
                                                  Administrator, within 30 days if it                     104(b)(2). The contract authority is                  certification. Previously, only newly
                                                  wishes to change the derivation of the                  transferred or released with                          noncompliant States were afforded 30
                                                  total penalty amounts from the NHPP                     accompanying obligation authority,                    days to submit additional
                                                  and STBG apportionments from the                        which is the maximum amount the State                 documentation demonstrating
                                                  default proportional amounts. Prior to                  can obligate to eligible projects. If the             compliance.
                                                  this IFR, States were required to submit                State elects to transfer funds to its                    While the agencies consider any
                                                  this request by October 30. The change                  Section 402 apportionment for alcohol-                additional documentation provided by
                                                  in the IFR ensures that States always                   impaired driving programs, the                        the State, the reservation will remain in
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                                                  receive 30 days to process this request                 obligation limitation is provided based               place on the State’s affected funds.
                                                  in the event issuance of the notice of                  on a ratio specified in 23 CFR 1270.7                 However, the State must still provide
                                                  apportionments is delayed.                              and 1275.7, which comes directly from                 the requests regarding the derivation
                                                                                                          23 U.S.C. 154(c)(6) and 23 U.S.C.                     and distribution of funds referenced in
                                                  B. Use of Reserved Funds (23 CFR                        164(b)(6). The IFR makes technical                    Sections A and B (within 30 and 60
                                                  1270.7 and 1275.7)                                      corrections and amendments to improve                 days, respectively) while the
                                                    The agencies have reorganized 23 CFR                  clarity in these provisions of the Federal            documentation is reviewed to expedite
                                                  1270.7 and 1275.7 to improve clarity                    implementing regulations, but they do                 the distribution of funds. If the agencies


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                                                  67164            Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations

                                                  affirm the noncompliance                                conduct a preliminary review of the                   comments that interested parties and
                                                  determination, the State will be notified               State’s amended law and identify to the               the public may have, the agencies are
                                                  of the decision and the affected funds                  State any potential compliance issues                 requesting that comments be submitted
                                                  will be processed in accordance with                    resulting from the change. Absent early               to the docket for this notice.
                                                  the requests provided by the State. If the              notification from the State, NHTSA may                   Comments received in response to
                                                  agencies reverse the noncompliance                      not identify a potential compliance                   this notice will be considered by the
                                                  determination, the funds will be                        issue until later in the fiscal year, often           agencies. The agencies will then issue a
                                                  released from reservation and restored                  after the State’s legislative session has             final rule, including any appropriate
                                                  to the State’s NHPP and STBG accounts.                  ended.                                                amendments based on those comments.
                                                  These procedures are intended to                                                                              The notice for that final rule will
                                                                                                          V. Notice and Comment, Effective Date,
                                                  preserve the maximum possible                                                                                 respond to substantive comments
                                                                                                          and Request for Comments
                                                  flexibility for States, while ensuring that                                                                   received.
                                                  the agencies meet their statutory                          The Administrative Procedure Act
                                                  obligations.                                            authorizes agencies to dispense with                  VI. Regulatory Analyses and Notices
                                                                                                          certain procedures for rules when they                A. Executive Order (E.O.) 12866
                                                  D. States’ Responsibilities Regarding                   find ‘‘good cause’’ to do so. The
                                                  Compliance (23 CFR 1270.9 and 1275.9)                                                                         (Regulatory Planning and Review), E.O.
                                                                                                          agencies must ensure that States receive              13563, and DOT Regulatory Policies and
                                                    Under the original Federal                            instructions that are important to                    Procedures
                                                  implementing regulations, if a State                    upcoming compliance determinations to
                                                  enacted a newly compliant law, the                      be made on October 1, 2016, as the                       The agencies have considered the
                                                  State was required to submit to the                     changes in the FAST Act are effective                 impact of this rulemaking action under
                                                  NHTSA Regional Office a copy of the                     on that date. In light of the short time              Executive Order 12866, Executive Order
                                                  law along with a certification meeting                  frame for implementing the FAST Act,                  13563, and the Department of
                                                  the requirements of the applicable                      the agencies find good cause to dispense              Transportation’s regulatory policies and
                                                  Federal regulation (23 CFR 1270.5 or                    with the notice and comment                           procedures. This rulemaking document
                                                  1275.5, prior to amendment by this IFR).                requirements and the 30-day delayed                   was not reviewed under Executive
                                                  States were required to promptly submit                 effective date requirement.                           Order 12866 or Executive Order 13563.
                                                  an amendment or supplement to their                        Under Section 553(b)(B), the                       This rule will only affect the
                                                  certifications if their law changed or                  requirements of notice and comment do                 compliance status of a very small
                                                  they ceased to enforce their law.                       not apply when the agency, for good                   handful of States and will therefore
                                                    The agencies are eliminating this                     cause, finds that those procedures are                affect far less than $100 million
                                                  certification requirement in this IFR,                  ‘‘impracticable, unnecessary, or contrary             annually. Whether a State chooses to
                                                  thereby reducing the paperwork burden                   to public interest.’’ Because of the short            enact a compliant law or make a
                                                  on the States. In practice, few States                  time frame for implementing the FAST                  certification is dependent on many
                                                  submitted certifications, and the                       Act, the agencies find it impracticable to            variables, and cannot be linked with
                                                  agencies found them to be of limited                    implement the new compliance criteria                 specificity to the issuance of this rule.
                                                  value in enforcement. Instead, this IFR                 with notice and comment for FY 2017.                  States choose whether to enact and
                                                  adds a new section for each of the                      However, the agencies invite public                   enforce compliant laws, thereby
                                                  programs (23 CFR 1270.9 and 1275.9)                     comment on all aspects of this IFR. The               complying with the programs. If a State
                                                  related to States’ responsibilities                     agencies will consider and address                    chooses not to enact and enforce a
                                                  regarding compliance. First, these                      comments in a final rule, which the                   conforming law, its funds are
                                                  sections make clear that it is the State’s              agencies commit to publishing during                  conditioned, but not withheld.
                                                  sole responsibility to ensure compliance                the first quarter of calendar year 2017,              Accordingly, the total amount of funds
                                                  with the Section 154 and 164 programs.                  and which will be effective beginning                 provided to each State does not change.
                                                  While NHTSA conducts an annual                          with FY 2018.                                         The costs to States associated with this
                                                  review of State laws to assess whether                     Under Section 553(d), the agencies                 rule are minimal (e.g., passing and
                                                  legislation has affected their compliance               may make a rule effective immediately,                enforcing alcohol impaired driving
                                                  status, this does not occur until late in               avoiding the 30-day delayed effective                 laws) and are expected to be offset by
                                                  the fiscal year, often after State                      date requirement for good cause. We                   resulting highway safety benefits.
                                                  legislative sessions have ended. NHTSA                  have determined that it is in the public              Therefore, this rulemaking has been
                                                  cannot and does not actively monitor all                interest for this IFR to have an                      determined to be not ‘‘significant’’
                                                  pending legislation in all States. Instead,             immediate effective date. The agencies                under the Department of
                                                  each State Highway Safety Office and                    are expediting this rulemaking to                     Transportation’s regulatory policies and
                                                  State Department of Transportation                      provide instructions that are important               procedures and the policies of the Office
                                                  should actively monitor their                           to upcoming compliance determinations                 of Management and Budget.
                                                  legislatures for potential amendments to                to be made on October 1, 2016, such as
                                                                                                                                                                B. Regulatory Flexibility Act
                                                  their open container and repeat                         those related to the new ‘‘general
                                                  intoxicated driver laws.                                practice’’ certifications. States also need             The Regulatory Flexibility Act (RFA)
                                                    Second, the agencies have added a                     clarification for the processes related to            of 1980 (5 U.S.C. 601 et seq.) requires
                                                  provision indicating that States must                   noncompliance.                                        agencies to evaluate the potential effects
                                                  promptly notify the appropriate NHTSA                      For these reasons, the agencies are                of their proposed and final rules on
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                                                  Regional Administrator in writing of                    issuing this rulemaking as an interim                 small businesses, small organizations,
                                                  any change or change in enforcement to                  final rule that will be effective                     and small governmental jurisdictions.
                                                  the State’s open container or repeat                    immediately. As an interim final rule,                Section 605 of the RFA allows an
                                                  intoxicated driver law, identifying the                 this regulation is fully in effect and                agency to certify a rule, in lieu of
                                                  specific change(s). This replaces the                   binding upon its effective date. No                   preparing an analysis, if the proposed
                                                  requirement to submit a supplement or                   further regulatory action by the agencies             rulemaking is not expected to have a
                                                  amendment to the State’s certification.                 is necessary to make this rule effective.             significant economic impact on a
                                                  To the extent appropriate, NHTSA will                   However, in order to benefit from                     substantial number of small entities.


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                                                                   Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations                                        67165

                                                  The Small Business Regulatory                           FAST Act, including these programs,                   H. Executive Order 13211
                                                  Enforcement Fairness Act (SBREFA)                       and expects to continue these informal                   Executive Order 13211 (66 FR 28355,
                                                  amended the RFA to require Federal                      dialogues.                                            May 18, 2001) applies to any
                                                  agencies to provide a statement of the                                                                        rulemaking that: (1) Is determined to be
                                                  factual basis for certifying that an action             D. Executive Order 12988 (Civil Justice
                                                                                                          Reform)                                               economically significant as defined
                                                  would not have a significant economic                                                                         under Executive Order 12866, and is
                                                  impact on a substantial number of small                    Pursuant to Executive Order 12988                  likely to have a significantly adverse
                                                  entities.                                               (61 FR 4729 (February 7, 1996)), ‘‘Civil              effect on the supply of, distribution of,
                                                    This IFR is a rulemaking that will                    Justice Reform,’’ the agencies have                   or use of energy; or (2) that is designated
                                                  update the Section 154 and Section 164
                                                                                                          considered whether this rule would                    by the Administrator of the Office of
                                                  regulations based on recent Federal
                                                                                                          have any retroactive effect. We conclude              Information and Regulatory Affairs as a
                                                  legislation. The requirements of these
                                                                                                          that it would not have any retroactive or             significant energy action. This
                                                  programs only affect State governments,
                                                                                                          preemptive effect, and judicial review of             rulemaking is not likely to have a
                                                  which are not considered to be small
                                                                                                          it may be obtained pursuant to 5 U.S.C.               significantly adverse effect on the
                                                  entities as that term is defined by the
                                                                                                          702. That section does not require that               supply of, distribution of, or use of
                                                  RFA. Therefore, we certify that this
                                                                                                          a petition for reconsideration be filed               energy. This rulemaking has not been
                                                  action will not have a significant impact
                                                                                                          prior to seeking judicial review. This                designated as a significant energy
                                                  on a substantial number of small entities
                                                                                                          action meets applicable standards in                  action. Accordingly, this rulemaking is
                                                  and find that the preparation of a
                                                  Regulatory Flexibility Analysis is                      sections 3(a) and 3(b)(2) of Executive                not subject to Executive Order 13211.
                                                  unnecessary.                                            Order 12988, Civil Justice Reform, to
                                                                                                          minimize litigation, eliminate                        I. Executive Order 13175 (Consultation
                                                  C. Executive Order 13132 (Federalism)                   ambiguity, and reduce burden.                         and Coordination With Indian Tribes)
                                                     Executive Order 13132 on                                                                                     The agencies have analyzed this IFR
                                                                                                          E. Paperwork Reduction Act                            under Executive Order 13175, and have
                                                  ‘‘Federalism’’ requires the agencies to
                                                  develop an accountable process to                         Under the Paperwork Reduction Act                   determined that today’s action would
                                                  ensure ‘‘meaningful and timely input by                 of 1995 (PRA) (44 U.S.C. 3501, et seq.),              not have a substantial direct effect on
                                                  State and local officials in the                        Federal agencies must obtain approval                 one or more Indian tribes, would not
                                                  development of regulatory policies that                 from the Office of Management and                     impose substantial direct compliance
                                                  have federalism implications.’’ 64 FR                   Budget (OMB) for each collection of                   costs on Indian tribal governments, and
                                                  43255 (August 10, 1999). ‘‘Policies that                information they conduct, sponsor, or                 would not preempt tribal law.
                                                  have federalism implications’’ are                      require through regulations. This                     Therefore, a tribal summary impact
                                                  defined in the Executive Order to                       rulemaking would not establish any                    statement is not required.
                                                  include regulations that have                           new information collection                            J. Plain Language
                                                  ‘‘substantial direct effects on the States,             requirements.
                                                  on the relationship between the national                                                                         Executive Order 12866 and the
                                                  government and the States, or on the                    F. Unfunded Mandates Reform Act                       President’s memorandum of June 1,
                                                  distribution of power and                                                                                     1998, require each agency to write all
                                                                                                            The Unfunded Mandates Reform Act                    rules in plain language. Application of
                                                  responsibilities among the various
                                                                                                          of 1995 (Pub. L. 104–4) requires                      the principles of plain language
                                                  levels of government.’’ Under Executive
                                                                                                          agencies to prepare a written assessment              includes consideration of the following
                                                  Order 13132, an agency may not issue
                                                                                                          of the costs, benefits, and other effects             questions:
                                                  a regulation with Federalism
                                                  implications that imposes substantial                   of proposed or final rules that include                  • Have we organized the material to
                                                  direct compliance costs and that is not                 a Federal mandate likely to result in                 suit the public’s needs?
                                                  required by statute unless the Federal                  expenditures by State, local or tribal                   • Are the requirements in the rule
                                                  government provides the funds                           governments, in the aggregate, or by the              clearly stated?
                                                  necessary to pay the direct compliance                  private sector, of more than $100                        • Does the rule contain technical
                                                  costs incurred by State and local                       million annually (adjusted annually for               language or jargon that isn’t clear?
                                                  governments or the agency consults                      inflation with base year of 1995). This                  • Would a different format (grouping
                                                  with State and local governments in the                 IFR would not meet the definition of a                and order of sections, use of headings,
                                                  process of developing the proposed                      Federal mandate because the resulting                 paragraphing) make the rule easier to
                                                  regulation. An agency also may not                      annual State expenditures to comply                   understand?
                                                  issue a regulation with Federalism                      with the programs would not exceed the                   • Would more (but shorter) sections
                                                  implications that preempts a State law                  minimum threshold.                                    be better?
                                                  without consulting with State and local                 G. National Environmental Policy Act                     • Could we improve clarity by adding
                                                  officials.                                                                                                    tables, lists, or diagrams?
                                                     The agencies have analyzed this                         NHTSA has considered the impacts of                   • What else could we do to make the
                                                  rulemaking action in accordance with                    this rulemaking action for the purposes               rule easier to understand?
                                                  the principles and criteria set forth in                of the National Environmental Policy                  If you have any responses to these
                                                  Executive Order 13132, and have                         Act of 1969 (NEPA) (42 U.S.C. 4321–                   questions, please include them in your
                                                  determined that this IFR would not have                 4347). The agency has determined that                 comments on this IFR.
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                                                  sufficient Federalism implications as                   this IFR would not have a significant
                                                  defined in the order to warrant formal                  impact on the quality of the human                    K. Regulatory Identifier Number (RIN)
                                                  consultation with State and local                       environment. FHWA has analyzed this                     The Department of Transportation
                                                  officials or the preparation of a                       action for the purposes of NEPA and has               assigns a regulation identifier number
                                                  federalism summary impact statement.                    determined that it would not have any                 (RIN) to each regulatory action listed in
                                                  However, the agencies continue to                       effect on the quality of the environment              the Unified Agenda of Federal
                                                  engage with State representatives                       and meets the criteria for the categorical            Regulations. The Regulatory Information
                                                  regarding general implementation of the                 exclusion at 23 CFR 771.117(c)(20).                   Service Center publishes the Unified


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                                                  67166            Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations

                                                  Agenda in or about April and October                    How do I submit confidential business                 Intergovernmental relations, Alcohol
                                                  of each year. You may use the RIN                       information?                                          abuse.
                                                  contained in the heading at the                           If you wish to submit any information                  For the reasons discussed in the
                                                  beginning of this document to find this                 under a claim of confidentiality, you                 preamble, under the authority of 23
                                                  action in the Unified Agenda.                           should submit three copies of your                    U.S.C. 154 and 164, the National
                                                                                                          complete submission, including the                    Highway Traffic Safety Administration
                                                  L. Privacy Act
                                                                                                          information you claim to be confidential              and the Federal Highway
                                                    Please note that anyone is able to                    business information, to the Chief                    Administration amend 23 CFR Chapter
                                                  search the electronic form of all                       Counsel, NHTSA, at the address given                  II as follows:
                                                  comments received into any of our                       above under FOR FURTHER INFORMATION                   ■ 1. Revise part 1270 to read as follows:
                                                  dockets by the name of the individual                   CONTACT. In addition, you should
                                                  submitting the comment (or signing the                  submit a copy, from which you have                    PART 1270—OPEN CONTAINER LAWS
                                                  comment, if submitted on behalf of an                   deleted the claimed confidential                      Sec.
                                                  association, business, labor union, etc.).              business information, to the docket at                1270.1 Scope.
                                                  You may review DOT’s complete                           the address given above under                         1270.2 Purpose.
                                                  Privacy Act Statement in the Federal                    ADDRESSES. When you send a comment                    1270.3 Definitions.
                                                  Register published on April 11, 2000                    containing information claimed to be                  1270.4 Compliance criteria.
                                                                                                          confidential business information, you                1270.5 [Reserved].
                                                  (65 FR 19477) or you may visit http://                                                                        1270.6 Reservation of funds.
                                                  dms.dot.gov.                                            should include a cover letter setting
                                                                                                          forth the information specified in our                1270.7 Use of reserved funds.
                                                                                                          confidential business information                     1270.8 Procedures affecting States in
                                                  VII. Public Participation
                                                                                                                                                                     noncompliance.
                                                                                                          regulation. (49 CFR part 512.)                        1270.9 States’ responsibilities regarding
                                                  How do I prepare and submit
                                                  comments?                                               Will the agencies consider late                            compliance.
                                                                                                          comments?                                               Authority: 23 U.S.C. 154; delegation of
                                                     Your comments must be written and                      We will consider all comments                       authority at 49 CFR 1.85 and 1.95.
                                                  in English. To ensure that your                         received before the close of business on
                                                  comments are correctly filed in the                                                                           § 1270.1   Scope.
                                                                                                          the comment closing date indicated                      This part prescribes the requirements
                                                  Docket, please include the docket                       above under DATES. To the extent
                                                  number of this document in your                                                                               necessary to implement Section 154 of
                                                                                                          possible, we will also consider                       Title 23 of the United States Code which
                                                  comments.                                               comments that the docket receives after
                                                                                                                                                                encourages States to enact and enforce
                                                     Your comments must not be more                       that date. If the docket receives a
                                                                                                                                                                open container laws.
                                                  than 15 pages long. (49 CFR 553.21). We                 comment too late for us to consider in
                                                  established this limit to encourage you                 developing a final rule (assuming that                § 1270.2   Purpose.
                                                  to write your primary comments in a                     one is issued), we will consider that                   The purpose of this part is to specify
                                                  concise fashion. However, you may                       comment as an informal suggestion for                 the steps that States must take to avoid
                                                  attach necessary additional documents                   future rulemaking action.                             the reservation and transfer of Federal-
                                                  to your comments. There is no limit on                  How can I read the comments submitted                 aid highway funds for noncompliance
                                                  the length of the attachments.                          by other people?                                      with 23 U.S.C. 154.
                                                     Comments may also be submitted to                      You may read the comments received                  § 1270.3   Definitions.
                                                  the docket electronically by logging onto               by the docket at the address given above                 As used in this part:
                                                  the Docket Management System Web                        under ADDRESSES. The hours of the                        (a) Alcoholic beverage means:
                                                  site at http://www.regulations.gov.                     docket are indicated above in the same                   (1) Beer, ale, porter, stout, and other
                                                  Follow the online instructions for                      location. You may also see the                        similar fermented beverages (including
                                                  submitting comments.                                    comments on the Internet. To read the                 sake or similar products) of any name or
                                                     Please note that pursuant to the Data                comments on the Internet, go to http://               description containing one-half of 1
                                                  Quality Act, in order for substantive                   www.regulations.gov. Follow the online                percent or more of alcohol by volume,
                                                  data to be relied upon and used by the                  instructions for accessing the dockets.               brewed or produced from malt, wholly
                                                  agencies, it must meet the information                    Please note that even after the                     or in part, or from any substitute
                                                  quality standards set forth in the OMB                  comment closing date, we will continue                therefor;
                                                  and DOT Data Quality Act guidelines.                    to file relevant information in the docket               (2) Wine of not less than one-half of
                                                  Accordingly, we encourage you to                        as it becomes available. Further, some                1 per centum of alcohol by volume; or
                                                  consult the guidelines in preparing your                people may submit late comments.                         (3) Distilled spirits which is that
                                                  comments. OMB’s guidelines may be                       Accordingly, we recommend that you                    substance known as ethyl alcohol,
                                                  accessed at http://www.whitehouse.gov/                  periodically check the Docket for new                 ethanol, or spirits of wine in any form
                                                                                                          material. You can arrange with the                    (including all dilutions and mixtures
                                                  omb/fedreg/reproducible.html.
                                                                                                          docket to be notified when others file                thereof from whatever source or by
                                                  How can I be sure that my comments                      comments in the docket. See http://                   whatever process produced).
                                                  were received?                                          www.regulations.gov for more                             (b) FHWA means the Federal Highway
                                                                                                          information.                                          Administration.
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                                                    If you wish Docket Management to                                                                               (c) Motor vehicle means a vehicle
                                                                                                            Authority: 23 U.S.C. 154 and 164;
                                                  notify you upon its receipt of your                     delegation of authority at 49 CFR 1.85 and            driven or drawn by mechanical power
                                                  comments, enclose a self-addressed,                     1.95.                                                 and manufactured primarily for use on
                                                  stamped postcard in the envelope                                                                              public highways, but does not include
                                                  containing your comments. Upon                          List of Subjects in 23 CFR Parts 1270                 a vehicle operated solely on a rail or
                                                  receiving your comments, Docket                         and 1275                                              rails.
                                                  Management will return the postcard by                    Reservation and transfer programs—                     (d) NHTSA means the National
                                                  mail.                                                   Transportation, Highway safety,                       Highway Traffic Safety Administration.


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                                                                   Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations                                        67167

                                                     (e) Open alcoholic beverage container                compartment), or, in a motor vehicle                  notification described in paragraph (a)
                                                  means any bottle, can, or other                         that is not equipped with a trunk, either             of this section, the Secretary will:
                                                  receptacle that:                                        behind the last upright seat or in an area               (1) Transfer the reserved funds
                                                     (1) Contains any amount of alcoholic                 not normally occupied by the driver or                identified by the State for alcohol-
                                                  beverage; and                                           a passenger, the State will be deemed to              impaired driving programs under
                                                     (2) Is open or has a broken seal or the              have in effect a law that applies to the              paragraph (c) of this section to the
                                                  contents of which are partially removed                 passenger area of any vehicle, as                     apportionment of the State under 23
                                                  (regardless of whether it has been closed               provided in paragraph (b)(2) of this                  U.S.C. 402; and
                                                  or resealed).                                           section.                                                 (2) Release the reserved funds
                                                     (f) Open container law means a State                    (2) If a State has in effect a law that            identified by the State for highway
                                                  law or combination of laws that meets                   makes unlawful the possession of any                  safety improvement program activities
                                                  the minimum requirements specified in                   open alcoholic beverage container and                 under paragraph (d) of this section to
                                                  § 1270.4.                                               the consumption of any alcoholic                      the State Department of Transportation.
                                                     (g) Passenger area means the area                    beverage by the driver (but not by a                     (c) Any funds transferred under
                                                  designed to seat the driver and                         passenger) in the passenger area of a                 paragraph (b)(1) of this section shall
                                                  passengers while the motor vehicle is in                motor vehicle designed, maintained, or                be—
                                                  operation and any area that is readily                  used primarily for the transportation of                 (1) Used for approved projects for
                                                  accessible to the driver or a passenger                 persons for compensation, or in the                   alcohol-impaired driving
                                                  while in their seating positions,                       living quarters of a house coach or                   countermeasures; or
                                                  including the glove compartment.                        house trailer, the State shall be deemed                 (2) Directed to State and local law
                                                     (h) Public highway or right-of-way of                to have in effect a law that applies to all           enforcement agencies for enforcement of
                                                  a public highway means the width                        occupants of a motor vehicle with                     laws prohibiting driving while
                                                  between and immediately adjacent to                     respect to such motor vehicles, as                    intoxicated or driving under the
                                                  the boundary lines of every way                         provided in paragraph (b)(4) of this                  influence and other related laws
                                                  publicly maintained when any part                       section.                                              (including regulations), including the
                                                  thereof is open to the use of the public                                                                      purchase of equipment, the training of
                                                                                                          § 1270.5    [Reserved].
                                                  for purposes of vehicular travel;                                                                             officers, and the use of additional
                                                  inclusion of the roadway and shoulders                  § 1270.6    Reservation of funds.                     personnel for specific alcohol-impaired
                                                  is sufficient.                                             (a) On October 1 of each fiscal year,              driving countermeasures, dedicated to
                                                     (i) State means any of the 50 States,                if a State has not enacted or is not                  enforcement of the laws (including
                                                  the District of Columbia, or the                        enforcing a law that complies with                    regulations).
                                                  Commonwealth of Puerto Rico.                            § 1270.4, FHWA will reserve an amount                    (d) Any funds released under
                                                  § 1270.4   Compliance criteria.
                                                                                                          equal to 2.5 percent of the funds                     paragraph (b)(2) of this section shall be
                                                                                                          apportioned to the State for that fiscal              used for highway safety improvement
                                                    (a) To avoid the reservation of funds                 year under each of 23 U.S.C. 104(b)(1)
                                                  specified in § 1270.6, a State must enact                                                                     program activities eligible under 23
                                                                                                          and (b)(2).                                           U.S.C. 148.
                                                  and enforce an open container law that                     (b) The reservation of funds will be
                                                  prohibits the possession of any open                                                                             (e) Once the funds have been
                                                                                                          made based on proportionate amounts                   transferred or released under paragraph
                                                  alcoholic beverage container, and the                   from each of the apportionments under
                                                  consumption of any alcoholic beverage,                                                                        (b) of this section, the State may not
                                                                                                          23 U.S.C. 104(b)(1) and (b)(2). The                   revise the notification described in
                                                  in the passenger area of any motor                      State’s Department of Transportation
                                                  vehicle (including possession or                                                                              paragraph (a) of this section identifying
                                                                                                          will have 30 days from the date the                   how the funds will be programmed
                                                  consumption by the driver of the                        funds are reserved under this section to
                                                  vehicle) located on a public highway, or                                                                      between alcohol-impaired driving
                                                                                                          notify FHWA, through the appropriate                  programs and highway safety
                                                  the right-of-way of a public highway, in                Division Administrator, if it would like
                                                  the State.                                                                                                    improvement program activities.
                                                                                                          to change the distribution of the                        (f) The Federal share of the cost of any
                                                    (b) The law must apply to:                            amounts reserved between 23 U.S.C.
                                                    (1) The possession of any open                                                                              project carried out with the funds
                                                                                                          104(b)(1) and (b)(2).                                 transferred or released under paragraph
                                                  alcoholic beverage container and the
                                                  consumption of any alcoholic beverage;                  § 1270.7    Use of reserved funds.                    (b) of this section is 100 percent.
                                                    (2) The passenger area of any motor                     (a) Not later than 60 days after the                   (g)(1) If any funds are transferred
                                                  vehicle;                                                funds are reserved under § 1270.6, the                under paragraph (b)(1) of this section to
                                                    (3) All alcoholic beverages;                          Governor’s Representative for Highway                 the apportionment of a State under
                                                    (4) All occupants of a motor vehicle;                 Safety and the Chief Executive Officer of             Section 402 for a fiscal year, the amount
                                                  and                                                     the State’s Department of Transportation              of obligation authority determined
                                                    (5) All motor vehicles located on a                   for each State must jointly identify, in              under paragraph (g)(2) of this section
                                                  public highway or the right-of-way of a                 writing to the appropriate NHTSA                      shall be transferred for carrying out
                                                  public highway.                                         Regional Administrator and FHWA                       projects described in paragraph (c) of
                                                    (c) The law must provide for primary                  Division Administrator, how the funds                 this section.
                                                  enforcement.                                            will be programmed between alcohol-                      (2) The obligation authority referred
                                                    (d) Exceptions. (1) If a State has in                 impaired driving programs under                       to in paragraph (g)(1) of this section
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                                                  effect a law that makes unlawful the                    paragraph (c) of this section and                     shall be transferred from the obligation
                                                  possession of any open alcoholic                        highway safety improvement program                    authority distributed for the fiscal year
                                                  beverage container and the consumption                  activities under paragraph (d) of this                to the State for Federal-aid highways
                                                  of any alcoholic beverage in the                        section. Funds will remain reserved                   and highway safety construction
                                                  passenger area of any motor vehicle, but                until this notification is provided by the            programs, and the amount shall be
                                                  permits the possession of an open                       State.                                                determined by multiplying:
                                                  alcoholic beverage container in a locked                  (b) As soon as practicable after                       (i) The amount of funds transferred
                                                  container (such as a locked glove                       NHTSA and FHWA receive the                            under paragraph (b)(1) of this section to


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                                                  67168            Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations

                                                  the apportionment of the State under                    PART 1275—REPEAT INTOXICATED                            (i) Motor vehicle means a vehicle
                                                  Section 402 for the fiscal year; by                     DRIVER LAWS                                           driven or drawn by mechanical power
                                                    (ii) The ratio that:                                                                                        and manufactured primarily for use on
                                                                                                          Sec.                                                  public highways, but does not include
                                                    (A) The amount of obligation                          1275.1 Scope.
                                                  authority distributed for the fiscal year                                                                     a vehicle operated solely on a rail line
                                                                                                          1275.2 Purpose.
                                                  to the State for Federal-aid highways                   1275.3 Definitions.                                   or a commercial vehicle.
                                                  and highway safety construction                         1275.4 Compliance criteria.                             (j) NHTSA means the National
                                                  programs; bears to                                      1275.5 ‘‘General practice’’ certification             Highway Traffic Safety Administration.
                                                    (B) The total of the sums apportioned                      option.                                            (k) Repeat intoxicated driver means a
                                                  to the State for Federal-aid highways                   1275.6 Reservation of funds.                          person who has been convicted of
                                                  and highway safety construction                         1275.7 Use of reserved funds.                         driving while intoxicated or driving
                                                                                                          1275.8 Procedures affecting States in                 under the influence of alcohol more
                                                  programs (excluding sums not subject to
                                                                                                               noncompliance.                                   than once in any five-year period.
                                                  any obligation limitation) for the fiscal               1275.9 States’ responsibilities regarding
                                                  year.                                                                                                           (l) Repeat intoxicated driver law
                                                                                                               compliance.                                      means a State law or combination of
                                                    (h) Notwithstanding any other
                                                                                                            Authority: 23 U.S.C. 164; delegation of             laws or programs that impose the
                                                  provision of law, no limitation on the                  authority at 49 CFR 1.85 and 1.95.
                                                  total obligations for highway safety                                                                          minimum penalties specified in
                                                  programs under Section 402 shall apply                  § 1275.1    Scope.
                                                                                                                                                                § 1275.4 for all repeat intoxicated
                                                  to funds transferred under paragraph                                                                          drivers.
                                                                                                            This part prescribes the requirements                 (m) State means any of the 50 States,
                                                  (b)(1) of this section.                                 necessary to implement Section 164 of                 the District of Columbia or the
                                                                                                          Title 23, United States Code, which                   Commonwealth of Puerto Rico.
                                                  § 1270.8 Procedures affecting States in
                                                  noncompliance.                                          encourages States to enact and enforce
                                                                                                          repeat intoxicated driver laws.                       § 1275.4   Compliance criteria.
                                                     (a) Each fiscal year, each State
                                                  determined to be in noncompliance                       § 1275.2    Purpose.
                                                                                                                                                                  (a) To avoid the reservation of funds
                                                  with 23 U.S.C. 154 and this part will be                                                                      specified in § 1275.6, a State must enact
                                                                                                            The purpose of this part is to specify
                                                  advised of the funds reserved from                                                                            and enforce a repeat intoxicated driver
                                                                                                          the steps that States must take to avoid
                                                  apportionment under § 1270.6 in the                                                                           law that establishes, as a minimum
                                                                                                          the reservation and transfer of Federal-
                                                  notice of apportionments required                                                                             penalty, that all repeat intoxicated
                                                                                                          aid highway funds for noncompliance
                                                  under 23 U.S.C. 104(e), which normally                                                                        drivers:
                                                                                                          with 23 U.S.C. 164.                                     (1) Receive, for a period of not less
                                                  occurs on October 1.
                                                                                                          § 1275.3    Definitions.                              than one year, one or more of the
                                                     (b) Each State whose funds are                                                                             following penalties:
                                                  reserved under § 1270.6 will be afforded                   As used in this part:
                                                                                                             (a) 24–7 sobriety program has the                    (i) A suspension of all driving
                                                  30 days from the date of issuance of the                                                                      privileges;
                                                  notice of apportionments described in                   meaning given the term in § 1300.23(b)
                                                                                                          of this title.                                          (ii) A restriction on driving privileges
                                                  paragraph (a) of this section to submit                                                                       that limits the individual to operating
                                                  documentation showing why it is in                         (b) Alcohol concentration means
                                                                                                          grams of alcohol per 100 milliliters of               only motor vehicles with an ignition
                                                  compliance. Documentation must be                                                                             interlock device installed, unless a
                                                  submitted to the appropriate NHTSA                      blood or grams of alcohol per 210 liters
                                                                                                          of breath.                                            special exception described in
                                                  Regional Administrator. If such                                                                               paragraph (b) of this section applies; or
                                                                                                             (c) Driving while intoxicated means
                                                  documentation is provided, a                                                                                    (iii) A restriction on driving privileges
                                                                                                          driving or being in actual physical
                                                  reservation will remain in place on the                                                                       that limits the individual to operating
                                                                                                          control of a motor vehicle while having
                                                  State’s affected funds while the agencies                                                                     motor vehicles only if participating in,
                                                                                                          an alcohol concentration above the
                                                  consider the information. If the agencies                                                                     and complying with, a 24–7 sobriety
                                                                                                          permitted limit as established by each
                                                  affirm the noncompliance                                                                                      program;
                                                                                                          State, or an equivalent non-BAC
                                                  determination, the State will be notified                                                                       (2) Receive an assessment of their
                                                                                                          intoxicated driving offense.
                                                  of the decision and the affected funds                     (d) Driving under the influence has                degree of alcohol abuse, and treatment
                                                  will be processed in accordance with                    the same meaning as ‘‘driving while                   as appropriate; and
                                                  the requests regarding the derivation                   intoxicated.’’                                          (3) Except as provided in § 1275.5,
                                                  and distribution of funds provided by                      (e) FHWA means the Federal Highway                 receive a mandatory sentence of—
                                                  the State as required by §§ 1270.6(b) and               Administration.                                         (i) Not less than five days (120 hours)
                                                  1270.7(a).                                                 (f) Ignition interlock system means a              of imprisonment or 30 days (240 hours)
                                                  § 1270.9 States’ responsibilities regarding             State-certified system designed to                    of community service for a second
                                                  compliance.                                             prevent drivers from starting their car               offense; and
                                                                                                          when their breath alcohol concentration                 (ii) Not less than ten days (240 hours)
                                                    (a) States are responsible for ensuring                                                                     of imprisonment or 60 days (480 hours)
                                                                                                          is at or above a preset level.
                                                  compliance with 23 U.S.C. 154 and this                     (g) Imprisonment means confinement                 of community service for a third or
                                                  part.                                                   in a jail, minimum security facility,                 subsequent offense.
                                                    (b) A State that has been determined                  community corrections facility, house                   (b) Special exceptions. As used in
                                                  to be in compliance with the                            arrest with electronic monitoring,                    paragraph (a)(1)(ii) of this section,
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                                                  requirements of 23 U.S.C. 154 and this                  inpatient rehabilitation or treatment                 special exception means an exception
                                                  part must promptly notify the                           center, or other facility, provided the               under a State alcohol-ignition interlock
                                                  appropriate NHTSA Regional                              individual under confinement is in fact               law for the following circumstances
                                                  Administrator in writing of any change                  being detained.                                       only:
                                                  or change in enforcement of the State’s                    (h) Mandatory sentence means a                       (1) The individual is required to
                                                  open container law, identifying the                     sentence that cannot be waived,                       operate an employer’s motor vehicle in
                                                  specific change(s).                                     suspended, or otherwise reduced by the                the course and scope of employment
                                                  ■ 2. Revise part 1275 to read as follows:               State.                                                and the business entity that owns the


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                                                                   Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations                                        67169

                                                  vehicle is not owned or controlled by                   enforcing a law that complies with                    enforcement of the laws (including
                                                  the individual; or                                      § 1275.4, FHWA will reserve an amount                 regulations).
                                                    (2) The individual is certified by a                  equal to 2.5 percent of the funds                        (d) Any funds released under
                                                  medical doctor as being unable to                       apportioned to the State for that fiscal              paragraph (b)(2) of this section shall be
                                                  provide a deep lung breath sample for                   year under each of 23 U.S.C. 104(b)(1)                used for highway safety improvement
                                                  analysis by an ignition interlock device.               and (b)(2).                                           program activities eligible under 23
                                                                                                            (b) The reservation of funds will be                U.S.C. 148.
                                                  § 1275.5   ‘‘General practice’’ certification
                                                                                                          made based on proportionate amounts                      (e) Once the funds have been
                                                  option.
                                                                                                          from each of the apportionments under                 transferred or released under paragraph
                                                    (a) Notwithstanding § 1275.4(a)(3), a                 23 U.S.C. 104(b)(1) and (b)(2). The                   (b) of this section, the State may not
                                                  State that otherwise meets the                          State’s Department of Transportation                  revise the notification described in
                                                  requirements of § 1275.4 may comply                     will have 30 days from the date the                   paragraph (a) of this section identifying
                                                  with 23 U.S.C. 164 and this part based                  funds are reserved under this section to              how the funds will be programmed
                                                  on the State’s ‘‘general practice’’ for                 notify FHWA, through the appropriate                  between alcohol-impaired driving
                                                  incarceration. A State electing this                    Division Administrator, if it would like              programs and highway safety
                                                  option shall—                                           to change the distribution of the                     improvement program activities.
                                                    (1) If the State law does not comply                  amounts reserved between 23 U.S.C.                       (f) The Federal share of the cost of any
                                                  with the requirements of                                104(b)(1) and (b)(2).                                 project carried out with the funds
                                                  § 1275.4(a)(3)(i), submit the following                                                                       transferred or released under paragraph
                                                  certification signed by the Governor’s                  § 1275.7    Use of reserved funds.
                                                                                                                                                                (b) of this section is 100 percent.
                                                  Representative for Highway Safety:                         (a) Not later than 60 days after the                  (g)(1) If any funds are transferred
                                                     I, [Name], Governor’s Representative for             funds are reserved under § 1275.6, the                under paragraph (b)(1) of this section to
                                                  Highway Safety, certify that, in [State name],          Governor’s Representative for Highway                 the apportionment of a State under
                                                  at least 75 percent of repeat intoxicated               Safety and the Chief Executive Officer of             Section 402 for a fiscal year, the amount
                                                  drivers receive a mandatory sentence of                 the State’s Department of Transportation
                                                  imprisonment for a second offense, as those
                                                                                                                                                                of obligation authority determined
                                                                                                          for each State must jointly identify, in              under paragraph (g)(2) of this section
                                                  terms are defined in 23 CFR 1275.3. This                writing to the appropriate NHTSA
                                                  certification is based on data from the period                                                                shall be transferred for carrying out
                                                  of twelve consecutive months of the calendar
                                                                                                          Regional Administrator and FHWA                       projects described in paragraph (c) of
                                                  year immediately preceding the date of this             Division Administrator, how the funds                 this section.
                                                  certification. I sign this certification based on       will be programmed between alcohol-                      (2) The obligation authority referred
                                                  personal knowledge and other appropriate                impaired driving programs under                       to in paragraph (g)(1) of this section
                                                  inquiry. [Signature of Governor’s                       paragraph (c) of this section and                     shall be transferred from the obligation
                                                  Representative for Highway Safety] [Date of             highway safety improvement program                    authority distributed for the fiscal year
                                                  signature]                                              activities under paragraph (d) of this                to the State for Federal-aid highways
                                                    (2) If the State law does not comply                  section. Funds will remain reserved                   and highway safety construction
                                                  with the requirements of                                until this notification is provided by the            programs, and the amount shall be
                                                  § 1275.4(a)(3)(ii), submit the following                State.                                                determined by multiplying:
                                                  certification signed by the Governor’s                     (b) As soon as practicable after                      (i) The amount of funds transferred
                                                  Representative for Highway Safety:                      NHTSA and FHWA receive the                            under paragraph (b)(1) of this section to
                                                                                                          notification described in paragraph (a)               the apportionment of the State under
                                                     I, [Name], Governor’s Representative for
                                                  Highway Safety, certify that, in [State name],          of this section, the Secretary will:                  Section 402 for the fiscal year; by
                                                  at least 75 percent of repeat intoxicated                  (1) Transfer the reserved funds                       (ii) The ratio that:
                                                  drivers receive a mandatory sentence of not             identified by the State for alcohol-                     (A) The amount of obligation
                                                  less than ten days (240 hours) of                       impaired driving programs under                       authority distributed for the fiscal year
                                                  imprisonment for a third or subsequent                  paragraph (c) of this section to the
                                                  offense, as those terms are defined in 23 CFR
                                                                                                                                                                to the State for Federal-aid highways
                                                                                                          apportionment of the State under 23                   and highway safety construction
                                                  1275.3. This certification is based on data             U.S.C. 402; and
                                                  from the period of twelve consecutive                                                                         programs; bears to
                                                                                                             (2) Release the reserved funds                        (B) The total of the sums apportioned
                                                  months of the calendar year immediately
                                                  preceding the date of this certification. I sign        identified by the State for highway                   to the State for Federal-aid highways
                                                  this certification based on personal                    safety improvement program activities                 and highway safety construction
                                                  knowledge and other appropriate inquiry.                under paragraph (d) of this section to                programs (excluding sums not subject to
                                                  [Signature of Governor’s Representative for             the State Department of Transportation.               any obligation limitation) for the fiscal
                                                  Highway Safety] [Date of signature]                        (c) Any funds transferred under                    year.
                                                    (b) A State electing the option under                 paragraph (b)(1) of this section shall                   (h) Notwithstanding any other
                                                  this section must submit a new                          be—                                                   provision of law, no limitation on the
                                                  certification to the appropriate NHTSA                     (1) Used for approved projects for                 total obligations for highway safety
                                                  Regional Administrator by not later than                alcohol-impaired driving                              programs under Section 402 shall apply
                                                  October 1 of each fiscal year to avoid the              countermeasures; or                                   to funds transferred under paragraph
                                                  reservation of funds specified in                          (2) Directed to State and local law                (b)(1) of this section.
                                                  § 1275.6. The State is encouraged to                    enforcement agencies for enforcement of
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                                                  submit the certification by August 15 to                laws prohibiting driving while                        § 1275.8 Procedures affecting States in
                                                                                                          intoxicated or driving under the                      noncompliance.
                                                  avoid any delay in release of funds on
                                                  October 1 of that calendar year while                   influence and other related laws                        (a) Each fiscal year, each State
                                                  NHTSA evaluates its certification.                      (including regulations), including the                determined to be in noncompliance
                                                                                                          purchase of equipment, the training of                with 23 U.S.C. 164 and this part will be
                                                  § 1275.6   Reservation of funds.                        officers, and the use of additional                   advised of the funds reserved from
                                                     (a) On October 1 of each fiscal year,                personnel for specific alcohol-impaired               apportionment under § 1275.6 in the
                                                  if a State has not enacted or is not                    driving countermeasures, dedicated to                 notice of apportionments required


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                                                  67170            Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations

                                                  under 23 U.S.C. 104(e), which normally                  ACTION:Notice of deviation from                       operating schedule immediately at the
                                                  occurs on October 1.                                    drawbridge regulation.                                end of the effective period of this
                                                     (b) Each State whose funds are                                                                             temporary deviation. This deviation
                                                  reserved under § 1275.6 will be afforded                SUMMARY:    The Coast Guard has issued a              from the operating regulations is
                                                  30 days from the date of issuance of the                temporary deviation from the operating                authorized under 33 CFR 117.35.
                                                  notice of apportionments described in                   schedule that governs the Pulaski Bridge
                                                                                                          across the Newtown Creek, mile 0.6,                     Dated: September 27, 2016.
                                                  paragraph (a) of this section to submit                                                                       C.J. Bisignano,
                                                  documentation showing why it is in                      between Brooklyn and Queens, New
                                                                                                          York. This deviation is necessary to                  Supervisory Bridge Management Specialist,
                                                  compliance (which may include a                                                                               First Coast Guard District.
                                                  ‘‘general practice’’ certification under                allow the bridge owner to perform span
                                                                                                          locks adjustment at the bridge.                       [FR Doc. 2016–23690 Filed 9–29–16; 8:45 am]
                                                  § 1275.5). Documentation must be
                                                                                                          DATES: This deviation is effective from               BILLING CODE 9110–04–P
                                                  submitted to the appropriate NHTSA
                                                  Regional Administrator. If such                         12:01 a.m. on October 3, 2016 to 5 a.m.
                                                  documentation is provided, a                            on October 14, 2016.
                                                                                                                                                                DEPARTMENT OF HOMELAND
                                                  reservation will remain in place on the                 ADDRESSES: The docket for this
                                                                                                                                                                SECURITY
                                                  State’s affected funds while the agencies               deviation, [USCG–2016–0891] is
                                                  consider the information. If the agencies               available at http://www.regulations.gov.              Coast Guard
                                                  affirm the noncompliance                                Type the docket number in the
                                                  determination, the State will be notified               ‘‘SEARCH’’ box and click ‘‘SEARCH’’.                  33 CFR Part 165
                                                  of the decision and the affected funds                  Click on Open Docket Folder on the line
                                                  will be processed in accordance with                    associated with this deviation.                       [Docket No. USCG–2016–0893]
                                                  the requests regarding the derivation                   FOR FURTHER INFORMATION CONTACT: If                   Eighth Coast Guard District Annual
                                                  and distribution of funds provided by                   you have questions on this temporary                  Safety Zones; Pittsburgh Steelers
                                                  the State as required by §§ 1275.6(b) and               deviation, call or email Judy Leung-Yee,              Fireworks; Allegheny River Mile 0.0–
                                                  1275.7(a).                                              Project Officer, First Coast Guard                    0.25, Ohio River 0.0–0.1, Monongahela
                                                  § 1275.9 State’ responsibilities regarding              District, telephone (212) 514–4330,                   River 0.0–0.1
                                                  compliance.                                             email judy.k.leung-yee@uscg.mil.
                                                                                                          SUPPLEMENTARY INFORMATION: The
                                                                                                                                                                AGENCY:  Coast Guard, DHS.
                                                    (a) States are responsible for ensuring                                                                     ACTION: Notice of enforcement of
                                                  compliance with 23 U.S.C. 164 and this                  Pulaski Bridge, mile 0.6, across the
                                                                                                          Newtown Creek, has a vertical clearance               regulation.
                                                  part.
                                                    (b) A State that has been determined                  in the closed position of 39 feet at mean             SUMMARY:   The Coast Guard will enforce
                                                  to be in compliance with the                            high water and 43 feet at mean low                    a safety zone for the Pittsburgh Steelers
                                                  requirements of 23 U.S.C. 164 and this                  water. The existing bridge operating                  Fireworks on the Allegheny River, from
                                                  part must promptly notify the                           regulations are found at 33 CFR                       mile 0.0 to 0.25, Ohio River mile 0.0–
                                                  appropriate NHTSA Regional                              117.801(g)(1).                                        0.1 and Monongahela River 0.0–0.1, to
                                                  Administrator in writing of any change                     The waterway is transited by                       protect vessels transiting the area and
                                                  or change in enforcement of the State’s                 commercial barge traffic of various                   event spectators from the hazards
                                                  repeat intoxicated driver law,                          sizes.                                                associated with the Pittsburgh Steelers
                                                  identifying the specific change(s).                        The bridge owner, New York City
                                                                                                                                                                barge-based fireworks display. During
                                                                                                          DOT, requested a temporary deviation
                                                    Dated: September 27, 2016, under                                                                            the enforcement period, entry into,
                                                                                                          from the normal operating schedule to
                                                  authority delegated in 49 CFR 1.95.                                                                           transiting, or anchoring in the safety
                                                                                                          perform span locks adjustment at the
                                                  Mark R. Rosekind,                                                                                             zone is prohibited to all vessels not
                                                                                                          bridge.
                                                  Administrator, National Highway Traffic                                                                       registered with the sponsor as
                                                                                                             Under this temporary deviation, the
                                                  Safety Administration.                                                                                        participants or official patrol vessels,
                                                                                                          Pulaski Bridge shall remain in the
                                                    Dated: September 27, 2016, under                                                                            unless specifically authorized by the
                                                                                                          closed position from October 3, 2016 to
                                                  authority delegated in 49 CFR 1.85.                                                                           Captain of the Port (COTP) Pittsburgh or
                                                                                                          October 14, 2016 between 12:01 a.m.
                                                  Gregory G. Nadeau,                                                                                            a designated representative.
                                                                                                          and 5 a.m.
                                                  Administrator, Federal Highway                             Vessels able to pass under the bridge              DATES: The regulations in 33 CFR
                                                  Administration.                                         in the closed position may do so at                   165.801 Table 1, Sector Ohio Valley, No.
                                                  [FR Doc. 2016–23788 Filed 9–28–16; 4:15 pm]             anytime. The bridge will not be able to               67 is effective from 7 p.m. until 9 p.m.,
                                                  BILLING CODE 4910–59–P                                  open for emergencies and there is no                  on October 2, 2016.
                                                                                                          immediate alternate route for vessels to              FOR FURTHER INFORMATION CONTACT: If
                                                                                                          pass.                                                 you have questions about this notice of
                                                                                                             The Coast Guard will inform the users              enforcement, call or email MST1
                                                  DEPARTMENT OF HOMELAND                                  of the waterways through our Local                    Jennifer Haggins, Marine Safety Unit
                                                  SECURITY                                                Notice and Broadcast to Mariners of the               Pittsburgh, U.S. Coast Guard; telephone
                                                                                                          change in operating schedule for the                  412–221–0807, email
                                                  Coast Guard                                             bridge so that vessel operations can                  Jennifer.L.Haggins@uscg.mil.
                                                                                                          arrange their transits to minimize any                SUPPLEMENTARY INFORMATION: The Coast
                                                  33 CFR Part 117
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                                                                                                          impact caused by the temporary                        Guard will enforce the Safety Zone for
                                                                                                          deviation. The Coast Guard notified                   the annual Pittsburgh Pirates Fireworks
                                                  [Docket No. USCG–2016–0891]                                                                                   listed in 33 CFR 165.801 Table 1, Sector
                                                                                                          known companies of the commercial oil
                                                  Drawbridge Operation Regulation;                        and barge vessels in the area and they                Ohio Valley, No. 67 from 7 p.m. to 9
                                                  Newtown Creek, Brooklyn and Queens,                     have no objections to the temporary                   p.m. on October 2, 2016. Entry into the
                                                  NY                                                      deviation.                                            safety zone is prohibited unless
                                                                                                             In accordance with 33 CFR 117.35(e),               authorized by the COTP or a designated
                                                  AGENCY:    Coast Guard, DHS.                            the drawbridge must return to its regular             representative. Persons or vessels


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Document Created: 2018-02-09 13:34:00
Document Modified: 2018-02-09 13:34:00
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionInterim final rule; request for comments.
DatesThis interim final rule is effective on October 1, 2016. Comments concerning this interim final rule are due on November 30, 2016.
ContactNHTSA: 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 Chief Counsel, Telephone number: (202) 366- 1834, Email: [email protected]; Facsimile: (202) 366-3820.
FR Citation81 FR 67158 
RIN Number2127-AL45
CFR Citation23 CFR 1270
23 CFR 1275
CFR AssociatedReservation and Transfer Programs-Transportation; Highway Safety; Intergovernmental Relations and Alcohol Abuse

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