Open Container Laws

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

Federal Highway Administration

23 CFR Part 1270

[Docket No. NHTSA-98-4493]

RIN 2127-AH41

Open Container Laws

AGENCY: National Highway Traffic Safety Administration (NHTSA) and

Federal Highway Administration (FHWA), Department of Transportation.

ACTION: Interim final rule; request for comments.

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SUMMARY: This interim final rule implements a new program established

by the Transportation Equity Act for the 21st Century (TEA-21)

Restoration Act, which provides for the transfer of Federal-aid highway

construction funds to 23 U.S.C. 402 State and Community Highway Safety

Program grant funds for any State that fails to enact and enforce a

conforming ``open container'' law.

This regulation is being published as an interim final rule, which

will go into effect prior to providing notice and the opportunity for

comment. Following the close of the comment period, NHTSA will publish

a separate document responding to comments and, if appropriate, will

amend provisions of the regulation.

DATES: This interim final rule becomes effective on November 5, 1998.

Comments on this interim rule are due no later than December 7, 1998.

ADDRESSES: Written comments should refer to the docket number of this

notice

[[Page 53581]]

and be submitted (preferably in two copies) to: Docket Management, Room

PL-401 Section, National Highway Traffic Safety Administration, Nassif

Building, 400 Seventh Street, SW, Washington, DC 20590. (Docket hours

are Monday-Friday, 10 a.m. to 5 p.m., excluding Federal holidays.)

FOR FURTHER INFORMATION CONTACT: In NHTSA: Ms. Jennifer Higley, Office

of State and Community Services, NSC-01, National Highway Traffic

Safety Administration, 400 Seventh Street SW, Washington, DC 20590,

telephone (202) 366-2121; or Ms. Heidi L. Coleman, Office of Chief

Counsel, NCC-30, telephone (202) 366-1834.

In FHWA: Mr. Bing Wong, Office of Highway Safety, HHS-20, telephone

(202) 366-2169; or Mr. Raymond W. Cuprill, HCC-20, telephone (202) 366-

0834.

SUPPLEMENTARY INFORMATION: The Transportation Equity Act for the 21st

Century (TEA-21), H.R. 2400, Pub. L. 105-178, was signed into law on

June 9, 1998. On July 22, 1998, a technical corrections bill, entitled

the TEA-21 Restoration Act, Pub. L. 105-206, was enacted to restore

provisions that were agreed to by the conferees to H.R. 2400, but were

not included in the TEA-21 conference report. Section 1405 of the 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 will be

transferred to the State's apportionment under Section 402 of Title 23

of the United States Code, if the State fails to enact and enforce a

conforming ``open container'' law.

In accordance with Section 154, these funds are to be used for

alcohol-impaired driving countermeasures or the enforcement of driving

while intoxicated (DWI) laws, or States may elect to use all or a

portion of the funds for hazard elimination activities, under 23 U.S.C.

Section 152.

As provided in Section 154, to avoid the transfer of funds, State

``open container'' laws must prohibit the possession of any open

alcoholic beverage container, and the consumption of any alcoholic

beverage, in the passenger area of any motor vehicle located on a

public highway, or the right-of-way of a public highway, in the State.

This new program was established to address the issue of impaired

driving, which is a serious national problem.

Background

The Problem of Impaired Driving

Injuries caused by motor vehicle traffic crashes are a major health

care problem in America and are the leading cause of death for people

aged 6 to 27. Each year, the injuries caused by traffic crashes in the

United States claim approximately 42,000 lives and cost Americans an

estimated $150 billion, including $19 billion in medical and emergency

expenses, $42 billion in lost productivity, $52 billion in property

damage, and $37 billion in other crash related costs. In 1997, alcohol

was involved in approximately 39 percent of fatal traffic crashes and 7

percent of all crashes. Every 32 minutes, someone in this country dies

in an alcohol-related crash. In 1994, alcohol-involved crashes resulted

in $45 billion in economic costs, accounting for 30 percent of all

crash costs. Impaired driving is the most frequently committed violent

crime in America.

Open Container Law Incentives

State open container laws can serve as an important tool in the

fight against impaired driving. In order to encourage States to enact

and enforce effective impaired driving measures (including open

container laws), Congress enacted 23 U.S.C. Section 410 (the Section

410 program). Under this program, States could qualify for supplemental

grant funds if they were eligible for a basic Section 410 grant, and

they had an open container law that met certain requirements.

TEA-21 changed the Section 410 program and removed the open

container incentive grant criterion. The conferees to that legislation

had intended to create a new open container transfer program to

encourage States to enact open container laws, but this new program was

inadvertently omitted from the TEA-21 conference report. The program

was included instead in the TEA-21 Restoration Act, which was signed

into law on July 22, 1998.

Section 154 Open Container Law Program

Section 154 provides that the Secretary must transfer a portion of

a State's Federal-aid highway funds apportioned under Sections

104(b)(1), (3), and (4) of title 23 of the United States Code, for the

National Highway System, Surface Transportation Program and Interstate

System, to the State's apportionment under Section 402 of that title,

if the State does not meet certain statutory requirements. All 50

States, the District of Columbia and Puerto Rico are considered to be

States, for the purpose of this program.

To avoid the transfer, a State must enact and enforce a law that

prohibits the possession of any open alcoholic beverage container, and

the consumption of any alcoholic beverage, in the passenger area of any

motor vehicle (including possession or consumption by the driver of the

vehicle) located on a public highway, or the right-of-way of a public

highway, in the State.

Consistent with other programs that are administered by the

agencies, a State's law must have been both passed and come into effect

to permit a State to rely on the law to avoid the transfer of funds. In

addition, the State must be actively enforcing the law.

Any State that does not enact and enforce a conforming open

container law will be subject to a transfer of funds. In accordance

with Section 154, if a State does not meet the statutory requirements

on October 1, 2000 or October 1, 2001, an amount equal to one and on-

half percent of the funds apportioned to the State on those dates under

each of Sections 104(b)(1), (3) and (4) of title 23 of the United

States Code will be transferred to the State's apportionment under

Section 402 of that title. If a State does not meet the statutory

requirements on October 1, 2002, an amount equal to three percent of

the funds apportioned to the State on that date under Sections

104(b)(1), (3) and (4) will be transferred. An amount equal to three

percent will continue to be transferred on October 1 of each subsequent

fiscal year, if the State does not meet the requirements on those

dates.

Section 154 and this implementing regulation, provides also that

the amount of the apportionment to be transferred may be derived from

one or more of the apportionments under Sections 104(b)(1), (3) and

(4).

In other words, the total amount to be transferred from a non-

conforming State will be calculated based on a percentage of the funds

apportioned to the State under each of Sections 104(b)(1), (3) and (4).

However, the actual transfers need not be evenly distributed among

these three sources. The transferred funds may come from any one or a

combination of the apportionments under Sections 104(b)(1), (3) or (4),

as long as the appropriate total amount is transferred from one or more

of these three sections.

The funds transferred to Section 402 under this program are to be

used for alcohol-impaired driving countermeasures or directed to State

and local law enforcement agencies for

[[Page 53582]]

the enforcement of laws prohibiting driving while intoxicated, driving

under the influence or other related laws or regulations. The Act

provides that States may elect to use all or a portion of the

transferred funds for hazard elimination activities under 23 U.S.C.

152.

Compliance Criteria

To avoid the transfer of funds under this program, Section 154

provides that a State must enact and enforce:

A law that prohibits the possession of any open alcoholic

beverage container, or the consumption of any alcoholic beverage, 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.

The interim final rule specifies a number of elements that State

open container laws must meet to be considered to be conforming and to

enable a State to avoid the transfer of Federal-aid highway

construction funds. The elements are described below.

1. Prohibits Possession of Any Open Alcoholic Beverage Container and

the Consumption of Any Alcoholic Beverage

To avoid the transfer of funds, the State's open container law must

prohibit the possession of any open alcoholic beverage container in the

passenger area of any motor vehicle that is located on a public highway

or right-of-way. The State's law must also prohibit the consumption of

any alcoholic beverage in the passenger area of any motor vehicle that

is located on a public highway or right-of-way.

The agencies are aware of 16 States that prohibit the consumption

of alcoholic beverages, but not the possession of an open container in

the absence of consumption. These laws do not conform to the

requirements of the regulation.

2. In the Passenger Area of Any Motor Vehicle

To avoid the transfer of funds, the State's open container law

prohibiting the possession of open alcoholic beverage containers and

the consumption of alcoholic beverages must apply whenever such

activity is taking place in the passenger area of any motor vehicle,

consistent with the definitions of ``motor vehicle'' and ``passenger

area'' that are included in Sec. 1270.3 of the regulation.

The agencies have defined ``motor vehicle'' in the regulation to

mean a vehicle driven or drawn by mechanical power and manufactured

primarily for use on public highways. The term does not include a

vehicle operated exclusively on a rail or rails.

Passenger area is defined in the regulation to mean the area

designed to seat the driver and passengers while the motor vehicle is

in operation and any area that is readily accessible to the driver or a

passenger while in their seating positions, including the glove

compartment.

The agencies have reviewed existing State open container laws and

identified certain exceptions to this element contained in those laws.

The agencies' review revealed that two States prohibit occupants from

possessing open alcoholic beverage containers in the passenger area,

but do not consider it to be an offense if the container is located in

a locked glove compartment of the vehicle.

The agencies' review revealed also that a number of States prohibit

occupants from possessing open alcoholic beverage containers in motor

vehicles, but provide an exception when the vehicle is not equipped

with a trunk. These States do not consider it to be an offense to keep

an open alcoholic beverage container behind the last upright seat of

such vehicles or in an area of such vehicles not normally occupied by

the driver or passengers.

These exceptions will not disqualify an otherwise qualified State

from complying with the requirements of the regulation. A law that

permits the possession of open alcoholic beverage containers in an

unlocked glove compartment, however, will not conform to the

requirements of the regulation. The agencies note, for example, that

one State permits occupants to keep an open alcoholic beverage

container in a closed glove compartment of a motor vehicle. Such an

exception is not acceptable under the regulation.

3. All Alcoholic Beverages

To avoid the transfer of funds, the State's open container law must

apply to all ``alcoholic beverages.'' In accordance with section 154,

``alcoholic beverage'' is defined in the regulation to include all

types of alcoholic beverages, including beer, wine and distilled

spirits. Beer and wine are covered by the definition if they contain

one-half of 1 percent or more of alcohol by volume. Distilled spirits

containing any amount of alcohol are covered. Accordingly, a State law

that does not define 3.2 percent beer, for instance, as an alcoholic

beverage would not conform to the requirements of the regulation.

An ``open alcoholic beverage container'' is any bottle, can, or

other receptacle that contains any amount of alcoholic beverage, and

that is open or has a broken seal, or the contents of which are

partially removed.

4. Applies to All Occupants

To avoid the transfer of funds, the State's open container law must

apply to all occupants of the motor vehicle, including the driver and

all passengers.

The agencies are aware of one State that prohibits drivers from

possessing an open alcoholic beverage container, but passengers are not

covered by the prohibition. Since this law does not apply to all

occupants in the passenger area, it does not conform to the

requirements of the regulation.

The statute provides for two exceptions, however, to the all-

occupant requirement. A State's law will be deemed to apply to all

occupants if the law prohibits the possession of any open alcoholic

beverage container by the driver, but permits possession of alcohol by

passengers in ``the passenger area of a motor vehicle designed,

maintained or used primarily for the transportation of persons for

compensation'' (such as buses, taxis and limousines) and those ``in the

living quarters of a house coach or house trailer.''

The regulation clarifies that the exceptions may apply to the

consumption of alcoholic beverages by a passenger as well as to the

passenger's possession of open alcoholic beverage containers. The

driver of a motor vehicle, however, may not be covered by the

exception.

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

To avoid the transfer of funds, the State's open container law must

apply to a motor vehicle while it is located anywhere on a public

highway or the right-of-way of a public highway. The agencies have

defined ``public highway or the right-of-way of a public highway'' to

mean the entire width between and immediately adjacent to the boundary

lines of every way publicly maintained when any part thereof is open to

the use of the public for purposes of vehicular travel.

The agencies are aware of 11 States with open container laws that

apply only when the motor vehicle is being operated on a highway, but

do not prohibit possession or consumption by persons in a vehicle that

is stopped or parked on the highway or on the right-of-way, along the

side of the highway. These laws do not conform to the requirements of

the regulation.

The agencies are also aware of one State with an open container law

that applies only to motor vehicles in

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parking areas in certain counties of the State. Since this law does not

apply when the vehicle is located on the highway or right-of-way and

since it does not apply Statewide, it does not conform to the

requirements of the regulation.

6. Primary Enforcement

To avoid the transfer of funds, the State must provide for primary

enforcement of its open container law. Under a primary enforcement law,

law enforcement officials have the authority to enforce the law

without, for example, the need to show that they had probable cause to

believe that another violation had been committed. A State open

container law that provides for secondary enforcement will not conform

to the requirements of the regulation.

The agencies are aware of one State open container law that can be

enforced only as a secondary action when the driver has been determined

to have a blood alcohol concentration above a specified minimum blood

alcohol level. Since this open container law cannot be enforced in the

absence of this condition, it does not conform to the requirements of

the regulation.

Demonstrating Compliance

Section 154 provides that nonconforming States will be subject to

the transfer of funds beginning in fiscal year 2001. To avoid the

transfer, this interim final rule provides that each State must submit

a certification demonstrating compliance.

The certifications submitted by the States under this Part will

provide the agencies with the basis for finding States in compliance

with the Open Container requirements. Accordingly, until a State has

been determined to be in compliance with these requirements, a State

must submit a certification by an appropriate State official that the

State has enacted and is enforcing an open container law that conforms

to 23 U.S.C. 154 and Sec. 1270 of this Part.

Certifications must include citations to the State's conforming

open container law. These citations must include all applicable

provisions of the State's code including, for example, citations to the

State's definition of alcoholic beverage.

Once a State has been determined to be in compliance with the

requirements, the State would not be required to submit certifications

in subsequent fiscal years, unless the State's law had changed or the

State had ceased to enforce the open container law. It is the

responsibility of each State to inform the agencies of any such change

in a subsequent fiscal year, by submitting an amendment or supplement

to its certification.

States are required to submit their certifications on or before

September 30, 2000, to avoid the transfer of FY 2001 funds on October

1, 2000.

States that are found in noncompliance with these requirements in

any fiscal year, once they have enacted complying legislation and are

enforcing the law, must submit a certification to that effect before

the following fiscal year to avoid the transfer of funds in that

following fiscal year. Such certifications demonstrating compliance

must be submitted on or before the first day (October 1) of the

following fiscal year.

The agencies strongly encourage States to submit their

certifications in advance. The early submission of these documents will

enable the agencies to inform States as quickly as possible whether or

not their laws satisfy the requirements of Section 154 and the

implementing regulation, and will provide States with noncomplying laws

an opportunity to take the necessary steps to meet these requirements

before the date for the transfer of funds.

The agencies also strongly encourage States that are considering

the enactment of open container legislation to request preliminary

reviews of such legislation from the agencies while the legislation is

still pending. The agencies would determine in these preliminary

reviews whether the legislation, if enacted, will conform to the new

regulation, thereby avoiding a situation in which a State

unintentionally enacts a non-conforming open container law and the

State remains subject to the transfer of funds. Requests should be

submitted through NHTSA's Regional Administrators, who will refer the

requests to appropriate NHTSA and FHWA offices for review.

Enforcement

Section 154 provides that, to qualify for grant funding, a State

must not only enact a conforming law, but must also enforce the law. To

ensure the effective implementation of an open container law, the

agencies encourage the States to enforce their open container laws

rigorously. In particular, the agencies recommend that States

incorporate into their enforcement efforts activities designed to

inform law enforcement officers, prosecutors, members of the judiciary

and the public about their open container laws. States should also take

steps to integrate their open container enforcement efforts into their

enforcement of other impaired driving laws.

To demonstrate that they are enforcing their laws under the

regulation, however, States are required only to submit a certification

that they are enforcing their laws.

Notification of Compliance

For each fiscal year, beginning with FY 2001, NHTSA and the FHWA

will notify States of their compliance or noncompliance with Section

154, based on a review of certifications received. If, by June 30 of

any year, beginning with the year 2000, a State has not submitted a

certification or if the State has submitted a certification and it does

not conform to Section 154 and the implementing regulation, the

agencies will make an initial determination that the State does not

comply with Section 154 and with this regulation, and the transfer of

funds will be noted in the FHWA's advance notice of apportionment for

the following fiscal year, which generally is issued in July.

Each State determined to be in noncompliance will have an

opportunity to rebut the initial determination. The State will be

notified of the agencies' final determination of compliance or

noncompliance and the amount of funds to be transferred as part of the

certification of apportionments, which normally occurs on October 1 of

each fiscal year.

As stated earlier, NHTSA and the FHWA expect that States will want

to know as soon as possible whether their laws satisfy the requirements

of Section 154, or they may want assistance in drafting conforming

legislation.

States are strongly encouraged to submit certifications in advance,

and to request preliminary reviews and assistance from the agencies.

Requests should be submitted through NHTSA's Regional Administrators,

who will refer these requests to appropriate NHTSA and FHWA offices for

review.

Interim Final Rule

This document is being published as an interim final rule.

Accordingly, the new regulations in part 1270 are fully in effect 30

days after the date of the document's publication. No further

regulatory action by the agencies is necessary to make these

regulations effective.

These regulations have been published as an interim final rule

because insufficient time was available to provide for prior notice and

opportunity for comment. Some State legislatures do not meet every

year. Other State legislatures do meet every year, but limit their

business every other year to certain limited matters, such as

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budget and spending issues. The agencies are aware of six State

legislatures that are not scheduled to meet at all in the Year 2000,

and additional State legislatures may have limited agendas in that

year. These States will have just one opportunity (during the 1999

session of their State legislatures) to enact conforming legislation,

and they are preparing agendas and proposed legislation now for their

1999 legislative sessions. These States have an urgent need to know

what the criteria will be as soon as possible so they can develop and

enact conforming legislation and avoid the transfer of funds on October

1, 2000.

In the agencies' view, the States will not be impeded by the use of

an interim final rule. The procedures that States must follow to avoid

the transfer of funds under this new program are similar to procedures

that States have followed in other programs administered by NHTSA and/

or the FHWA. These procedures were established by rulemaking and were

subject to prior notice and the opportunity for comment.

Moreover, the criteria that States must meet to demonstrate that

they have a conforming open container law are derived from the Federal

statute and are similar to the criteria that the agencies followed when

an open container criterion was included as an incentive under the

Section 410 program. NHTSA's Section 410 program regulations were

subject to prior notice and the opportunity for comment.

For these reasons, the agencies believe that there is good cause

for finding that providing notice and comment in connection with this

rulemaking action is impracticable, unnecessary, and contrary to the

public interest.

The agencies request written comments on these new regulations. All

comments submitted in response to this document will be considered by

the agencies. Following the close of the comment period, the agencies

will publish a document in the Federal Register responding to the

comments and, if appropriate, will make revisions to the provisions of

Part 1270.

Written Comments

Interested persons are invited to comment on this interim final

rule. It is requested, but not required, that two copies be submitted.

All comments must be limited to 15 pages in length. Necessary

attachments may be appended to those submissions without regard to the

15 page limit. (49 CFR 553.21) This limitation is intended to encourage

commenters to detail their primary arguments in a concise fashion.

Written comments to the public docket must be received by December

7, 1998. To expedite the submission of comments, simultaneous with the

issuance of this notice, NHTSA and the FHWA will mail copies to all

Governors' Representatives for Highway Safety and State Departments of

Transportation.

All comments received before the close of business on the comment

closing date will be considered and will be available for examination

in the docket at the above address before and after that date. To the

extent possible, comments filed after the closing date will also be

considered. However, the rulemaking action may proceed at any time

after that date. The agencies will continue to file relevant material

in the docket as it becomes available after the closing date, and it is

recommended that interested persons continue to examine the docket for

new material.

Those persons who wish to be notified upon receipt of their

comments in the docket should enclose, in the envelope with their

comments, a self-addressed stamped postcard. Upon receiving the

comments, the docket supervisor will return the postcard by mail.

Copies of all comments will be placed in the Docket 98-4493 in

Docket Management, Room PL-401, Nassif Building, 400 Seventh Street,

SW, Washington, DC 20590.

Regulatory Analyses and Notices

Executive Order 12778 (Civil Justice Reform)

This interim final rule will not have any preemptive or retroactive

effect. The enabling legislation does not establish a procedure for

judicial review of final rules promulgated under its provisions. There

is no requirement that individuals submit a petition for

reconsideration or other administrative proceedings before they may

file suit in court.

Executive Order 12866 (Regulatory Planning and Review) and DOT

Regulatory Policies and Procedures

The agencies have determined that this action is not a significant

action within the meaning of Executive Order 12866 or significant

within the meaning of Department of Transportation Regulatory Policies

and Procedures. States can choose to enact and enforce an open

container law, in conformance with Pub. L. 105-206, and thereby avoid

the transfer of Federal-aid highway funds. Alternatively, if States

choose not to enact and enforce a conforming law, their funds will be

transferred, but not withheld. Accordingly, the amount of funds

provided to each State will not change.

In addition, the costs associated with this rule are minimal and

are expected to be offset by resulting highway safety benefits. The

enactment and enforcement of open container laws should help to reduce

impaired driving, which is a serious and costly problem in the United

States. Accordingly, further economic assessment is not necessary.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,

5 U.S.C. 601-612), the agencies have evaluated the effects of this

action on small entities. This rulemaking implements a new program

enacted by Congress in the TEA-21 Restoration Act. As the result of

this new Federal program, and the implementing regulation, States will

be subject to a transfer of funds if they do not enact and enforce laws

prohibiting the possession of open alcoholic beverage containers and

the consumption of alcoholic beverages. This interim final rule will

affect only State governments, which are not considered to be small

entities as that term is defined by the Regulatory Flexibility Act.

Thus, we certify that this action will not have a significant impact on

a substantial number of small entities and find that the preparation of

a Regulatory Flexibility Analysis is unnecessary.

Paperwork Reduction Act

This action does not contain a collection of information

requirement for purposes of the Paperwork Reduction Act of 1980, 44

U.S.C. Chapter 35, as implemented by the Office of Management and

Budget (OMB) in 5 CFR Part 1320.

National Environmental Policy Act

The agencies have analyzed this action for the purpose of the

National Environmental Policy Act, and have determined that it will not

have a significant effect on the human environment.

The Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires

agencies to prepare a written assessment of the costs, benefits and

other affects of final rules that include a Federal mandate likely to

result in the expenditure by the State, local or tribal governments, in

the aggregate, or by the private sector, of more than $100 million

annually. This interim final rule does not meet the definition of a

Federal mandate, because the resulting annual

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expenditures are not expected to exceed the $100 million threshold. In

addition, the program is optional to the States. States may choose to

enact and enforce a conforming open container law and avoid the

transfer of funds altogether. Alternatively, if States choose not to

enact and enforce a conforming law, funds will be transferred, but no

funds will be withheld from any State.

Executive Order 12612 (Federalism)

This action has been analyzed in accordance with the principles and

criteria contained in Executive Order 12612, and it has been determined

that this action does not have sufficient federalism implications to

warrant the preparation of a federalism assessment. Accordingly, a

Federalism Assessment has not been prepared.

List of Subjects in 23 CFR Part 1270

Alcohol and alcoholic beverages, Grant programs--transportation,

Highway safety.

In accordance with the foregoing, a new Subchapter D--Transfer and

Sanction Programs is added to Chapter II of Title 23 Code of Federal

Regulations and a new Part 1270 is added to Subchapter D to read as

follows:

SUBCHAPTER D--TRANSFER AND SANCTION PROGRAMS

PART 1270--OPEN CONTAINER LAWS

Sec.

1270.1 Scope.

1270.2 Purpose.

1270.3 Definitions.

1270.4 Compliance criteria.

1270.5 Certification requirements.

1270.6 Transfer of funds.

1270.7 Use of transferred funds.

1270.8 Procedures affecting States in noncompliance.

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

and 1.50.

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 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) Enact and enforce means the State's law is in effect and the

State has begun to implement the law.

(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) Open alcoholic beverage container means any bottle, can, or

other receptacle that:

(1) Contains any amount of alcoholic beverage; and

(2)(i) Is open or has a broken seal; or

(ii) The contents of which are partially removed.

(e) 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.

(f) Public highway or right-of-way of a public highway means the

entire width between and immediately adjacent to the boundary lines of

every way publicly maintained when any part thereof is open to the use

of the public for purposes of vehicular travel.

(g) 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 transfer of funds as specified in Sec. 1270.6 of

this part, a State must enact and enforce a law that prohibits the

possession of any open alcoholic beverage container, and the

consumption of any alcoholic beverage, in the passenger area of any

motor vehicle (including possession or consumption by the driver of the

vehicle) located on a public highway, or the right-of-way of a public

highway, in the State.

(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 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 glove compartment, or behind the last upright

seat or in an area not normally occupied by the driver or a passenger

in a motor vehicle that is not equipped with a trunk, the State shall

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 or 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, as provided in paragraph (b)(4) of this section.

Sec. 1270.5 Certification requirements.

(a) Until a State has been determined to be in compliance, or after

a State has been determined to be in non-compliance, with the

requirements of 23 U.S.C. 154, to avoid the transfer of funds in any

fiscal year, beginning with FY 2001, the State shall certify to the

Secretary of Transportation, on or before September 30 of the previous

fiscal year, that it meets the requirements of 23 U.S.C. 154 and this

part.

(b) The certification shall be made by an appropriate State

official, and it shall provide that the State has enacted and is

enforcing an open container law that conforms to 23 U.S.C. 154 and

Sec. 1270.4 of this part. The certification shall be worded as follows:

(Name of certifying official), (position title), of the (State or

Commonwealth) of ______, do hereby certify that the (State or

Commonwealth) of ______, has enacted and is enforcing an open

container law that conforms to the requirements of 23 U.S.C. 154 and

23 CFR 1270.4, (citations to State law).

(c) An original and four copies of the certification shall be

submitted to the appropriate NHTSA Regional Administrator. Each

Regional

[[Page 53586]]

Administrator will forward the certifications to the appropriate NHTSA

and FHWA offices.

(d) Once a State has been determined to be in compliance with the

requirements of 23 U.S.C. 154, it is not required to submit additional

certifications, except that the State shall promptly submit an

amendment or supplement to its certification provided under paragraphs

(a) and (b) of this section if the State's open container law changes

or the State ceases to enforce such law.

Sec. 1270.6 Transfer of funds.

(a) On October 1, 2000, and October 1, 2001, if a State does not

have in effect or is not enforcing the law described in Sec. 1270.4,

the Secretary shall transfer an amount equal to 1\1/2\ percent of the

funds apportioned to the State for that fiscal year under each of 23

U.S.C. 104(b)(1), (b)(3), and (b)(4) to the apportionment of the State

under 23 U.S.C. 402.

(b) On October 1, 2002, and each October 1 thereafter, if a State

does not have in effect or is not enforcing the law described in

Sec. 1270.4, the Secretary shall transfer an amount equal to 3 percent

of the funds apportioned to the State for that fiscal year under each

of 23 U.S.C. 104(b)(1), (b)(3), and (b)(4) to the apportionment of the

State under 23 U.S.C. 402.

Sec. 1270.7 Use of transferred funds.

(a) Any funds transferred under Sec. 1270.6 may:

(1) Be used for approved projects for alcohol-impaired driving

countermeasures; or

(2) Be 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).

(b) States may elect to use all or a portion of the transferred

funds for hazard elimination activities eligible under 23 U.S.C. 152.

(c) The Federal share of the cost of any project carried out with

the funds transferred under Sec. 1270.6 of this part shall be 100

percent.

(d) The amount to be transferred under Sec. 1270.6 of this part may

be derived from one or more of the following:

(1) The apportionment of the State under Sec. 104(b)(1);

(2) The apportionment of the State under Sec. 104(b)(3); or

(3) The apportionment of the State under Sec. 104(b)(4).

(e)(1) If any funds are transferred under Sec. 1270.6 of this part

to the apportionment of a State under Section 402 for a fiscal year, an

amount, determined under paragraph (e)(2) of this section, of

obligation authority will be distributed for the fiscal year to the

State for Federal-aid highways and highway safety construction programs

for carrying out projects under Section 402.

(2) The amount of obligation authority referred to in paragraph

(e)(1) of this section shall be determined by multiplying:

(i) The amount of funds transferred under Sec. 1270.6 of this part

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.

(f) 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 Sec. 1270.6 to the apportionment

of a State under such 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, based on NHTSA's and FHWA's

preliminary review of its certification, will be advised of the funds

expected to be transferred under Sec. 1270.4 from apportionment, as

part of the advance notice of apportionments required under 23 U.S.C.

104(e), normally not later than ninety days prior to final

apportionment.

(b) If NHTSA and FHWA determine that the State is not in compliance

with 23 U.S.C. 154 and this part, based on the agencies' preliminary

review, the State may, within 30 days of its receipt of the advance

notice of apportionments, submit documentation showing why it is in

compliance. Documentation shall be submitted to the appropriate

National Highway Traffic Safety Administration Regional office.

(c) Each fiscal year, each State determined not to be in compliance

with 23 U.S.C. 154 and this part, based on NHTSA's and FHWA's final

determination, will receive notice of the funds being transferred under

Sec. 1270.6 from apportionment, as part of the certification of

apportionments required under 23 U.S.C. 104(e), which normally occurs

on October 1 of each fiscal year.

Issued on: September 30, 1998.

Kenneth R. Wykle,

Administrator, Federal Highway Administration.

Ricardo Martinez,

Administrator, National Highway Traffic Safety Administration.

[FR Doc. 98-26639 Filed 10-1-98; 9:31 am]

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