Section 154 Regulation


    Final Rule For Section 154


    23 CFC Part 1270


    SUB-CHAPTER 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 non-compliance.

    AUTHORITY: 23 U.S.C. 154; delegation of authority at 49 CFR 1.48 and 1.50.

    Source: 63 FR 53585, Oct. 6, 1998, as amended at 65 FR 51532, Aug. 24, 2000.

    Effective Date: AUGUST 24, 2000

    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.

    1270.2 Purpose.

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

    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 1per centrum of alcohol by volume; or (3) Distilled spirits which is that sub-stance 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 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.

      (g) State means any of the 50 States, the District of Columbia, or the Commonwealth of Puerto Rico.

    1270.4 Compliance criteria.

      (a) To avoid the transfer of funds as specified in 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 pos-session 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 pro-vided 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.

    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.

        (1) If the State's open container law is currently in effect and is being enforced, 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 a open container law that conforms to the requirements of 23 U.S.C. 154 and 23 CFR 1270.4, (citations to pertinent State statutes, regulations, case law or other binding legal requirements, including definitions, as needed).

        (2) If the State's open container law is not currently in effect, but will become effective and be enforced by October 1 of the following fiscal year, 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 an open container law that conforms to the requirements of 23 U.S.C. 154 and 23 CFR 1270.4, (citations to pertinent State statutes, regulations, case law or other binding legal requirements, including definitions, as needed), and will become effective and be enforced as of (effective date of the law).

      (c) An original and four copies of the certification shall be submitted to the appropriate NHTSA Regional Administrator.
      Each Regional 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.

    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 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 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.

      (c) On October 1, the transfers to Section 402 apportionments will be made based on proportionate amounts from each of the apportionments under Sections 104(b)(1), (b)(3) and (b)(4). Then the State's Department of Transportation will be given until October 30 to notify FHWA, through the appropriate Division Administrator, if they would like to change the distribution among Section 104(b)(1), (b)(3) and (b)(4).

    1270.7 Use of transferred funds.

      (a) Any funds transferred under 1270.6 may:

        (1) Be used for approved projects for alcohol-impaired driving counter-measures; 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 counter-measures, 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) No later than 60 days after the funds are transferred under Sec. 1270.6, the Governor's Representative for Highway Safety and the Secretary of the State's Department of Transportation for each State shall jointly identify, in writing to the appropriate NHTSA Administrator and FHWA Division Administrator, how the funds will be programmed among alcohol-impaired driving programs, hazard elimination programs and planning and administration costs.

      (d) The Federal share of the cost of any project carried out with the funds transferred under 1270.6 of this part shall be 100 percent.

      (e) The amount to be transferred under 1270.6 of this part may be derived from one or more of the following:

        (1) The apportionment of the State under 104(b)(1);
        (2) The apportionment of the State under 104(b)(3); or
        (3) The apportionment of the State under 104(b)(4).

      (f)(1) If any funds are transferred under 1270.6 of this part to the apportionment of a State under Section 402 for a fiscal year, an amount, determined under paragraph
      (f)(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 (f)(1) of this section shall be determined by multiplying:

        (i) The amount of funds transferred under 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.

      (g) 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 1270.6 to the apportionment of a State under such section.

    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 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 deter-mined 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 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.