Title 23 guidance

TITLE 23--HIGHWAYS

CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION

PART 192--DRUG OFFENDER'S DRIVER'S LICENSE SUSPENSION--Table of Contents

Sec.

192.1 Scope.

192.2 Purpose.

192.3 Definitions.

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

192.5 Certification requirements.

192.6 Period of availability of withheld funds.

192.7 Apportionment of withheld funds after compliance.

192.8 Period of availability of subsequently apportioned funds.

192.9 Effect of noncompliance.

192.10 Procedures affecting States in noncompliance.

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

Source: 57 FR 35999, Aug. 12, 1992, unless otherwise noted.

Re-designated at 60 FR 50100, Sept. 28, 1995.

Sec. 192.1 Scope.

This part prescribes the requirements necessary to implement 23

U.S.C. Sec. 159, which encourages States to enact and enforce drug

offender's driver's license suspensions.

Sec. 192.2 Purpose.

The purpose of this part is to specify the steps that States must

take in order to avoid the withholding of Federal-aid highway funds for

noncompliance with 23 U.S.C. 159.

Sec. 192.3 Definitions.

As used in this part:

(a) Convicted includes adjudicated under juvenile proceedings.

(b) Driver's license means a license issued by a State to any

individual that authorizes the individual to operate a motor vehicle on

highways.

(c) Drug offense means:

(1) The possession, distribution, manufacture, cultivation, sale,

transfer, or the attempt or conspiracy to possess, distribute,

manufacture, cultivate, sell, or transfer any substance the possession

of which is prohibited under the Controlled Substances Act, or

(2) The operation of a motor vehicle under the influence of such a

substance.

(d) Substance the possession of which is prohibited under the

Controlled Substances Act or substance means a controlled or counterfeit

chemical, as those terms are defined in subsections 102 (6) and (7) of

the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21

U.S.C. 802 (6) and (7) and listed in 21 CFR 1308.11-.15.

[57 FR 35999, Aug. 12, 1992; 58 FR 62415, Nov. 26, 1993; 59 FR 39256,

Aug. 2, 1994]

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

(a) The Secretary shall withhold five percent of the amount required

to be apportioned to any State under each of sections 104(b)(1),

104(b)(3), and 104(b)(5) of title 23 of the United States Code on the

first day of fiscal years 1994 and 1995 if the States does not meet the

requirements of this section on that date.

(b) The Secretary shall withhold ten percent of the amount required

to be apportioned to any State under each of sections 104(b)(1), 104(b)(3),

and 104(b)(5) of title 23 of the United States Code on the first day of

fiscal year 1996 and any subsequent fiscal year if the State does not

meet the requirements of this section on that date.

(c) A State meets the requirements of this section if:

(1) The State has enacted and is enforcing a law that requires in

all circumstances, or requires in the absence of compelling

circumstances warranting an exception:

(i) The revocation, or suspension for at least 6 months, of the

driver's license of any individual who is convicted, after the enactment

of such law, of

(A) Any violation of the Controlled Substances Act, or

(B) Any drug offense, and

(ii) A delay in the issuance or reinstatement of a driver's license

to such an individual for at least 6 months after the individual

otherwise would have been eligible to have a driver's license issued or

reinstated if the individual does not have a driver's license, or the

driver's license of the individual is suspended, at the time the

individual is so convicted, or

(2) The Governor of the State:

(i) Submits to the Secretary no earlier than the adjournment sine

die of the first regularly scheduled session of the State's legislature

which begins after November 5, 1990, a written certification stating

that he or she is opposed to the enactment or enforcement in the State

of a law described in paragraph (c)(1) of this section relating to the

revocation, suspension, issuance, or reinstatement of driver's licenses

to convicted drug offenders; and

(ii) Submits to the Secretary a written certification that the

legislature (including both Houses where applicable) has adopted a

resolution expressing its opposition to a law described in paragraph

(c)(1) of this section.

(d) A State that makes exceptions for compelling circumstances must

do so in accordance with a State law, regulation, binding policy

directive or Statewide published guidelines establishing the conditions

for making such exceptions and in exceptional circumstances specific to

the offender.

Sec. 192.5 Certification requirements.

(a) Each State shall certify to the Secretary of Transportation by

April 1, 1993 and by January 1 of each subsequent year that it meets the

requirements of 23 U.S.C. 159 and this regulation.

(b) If the State believes it meets the requirements of 23 U.S.C. 159

and this regulation on the basis that it has enacted and is enforcing a

law that suspends or revokes the driver's license of drug offenders, the

certification shall contain:

(1) A statement by the Governor of the State that the State has

enacted and is enforcing a Drug Offender's Driver's License Suspension

law that conforms to 23 U.S.C. 159(a)(3)(A). The certifying statement

may be worded as follows: I, (Name of Governor), Governor of the (State

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

Commonwealth) of ------------, has enacted is enforcing a Drug

Offender's Driver's License Suspension law that conforms to section 23

U.S. C. 159(a)(3)(A).

(2) Until a State has been determined to be in compliance with the

requirements of 23 U.S.C. 159 and this regulation, the certification

shall include also:

(i) A copy of the State law, regulation, or binding policy directive

implementing or interpreting such law or regulation relating to the

suspension, revocation, issuance or reinstatement or driver's licenses

of drug offenders, and

(ii) A statement describing the steps the State is taking to enforce

its law with regard to within State convictions, out-of-State

convictions, Federal convictions and juvenile adjudications. The

statement shall demonstrate that, upon receiving notification that a

State driver has been convicted of a within State, out-of-State or

Federal conviction or juvenile adjudication, the State is revoking,

suspending or delaying the issuance of that drug offender's driver's

license; and that, when the State convicts an individual of a drug

offense, it is notifying the appropriate State office or, if the

offender is a non-resident driver, the appropriate office in the

driver's home State. If the State is not yet making these notifications,

the State may satisfy this element by submitting a

plan describing the steps it is taking to establish notification

procedures.

(c) If the State believes it meets the requirements of 23 U.S.C.

159(a)(3)(B) on the basis that it opposes a law that requires the

suspension, revocation or delay in issuance or reinstatement of the

driver's license of drug offenders that conforms to 23 U.S.C.

159(a)(3)(A), the certification shall contain:

(1) A statement by the Governor of the State that he or she is

opposed to the enactment or enforcement of a law that conforms to 23

U.S.C. 159(a)(3)(A) and that the State legislature has adopted a

resolution expressing its opposition to such a law. The certifying

statement may be worded as follows: I, (Name of Governor), Governor of

the (State or Commonwealth of ------------, do hereby certify that I am

opposed to the enactment or enforcement of a law that conforms to 23

U.S.C. 159(a)(3)(A) and that the legislature of the (State or

Commonwealth) of ------------, has adopted a resolution expressing its

opposition to such a law.

(2) Until a State has been determined to be in compliance with the

requirements of 23 U.S.C. 159(a)(3)(B) and this regulation, the

certification shall include a copy of the resolution.

(d) The Governor each year shall submit the original and three

copies of the certification to the local FHWA Division Administrator.

The FHWA Division Administrator shall retain the original and forward

one copy each to the FHWA Regional Administrator, FHWA Chief Counsel,

and the Director of the Office of Highway Safety.

(e) Any changes to the original certification or supplemental

information necessitated by the review of the certifications as they are

forwarded, State legislative changes or changes in State enforcement

activity (including failure to make progress in a plan previously

submitted) shall be submitted in the same manner as the original.

[57 FR 35999, Aug. 12, 1992. Re-designated and amended at 60 FR 50100,

Sept. 28, 1995]

Sec. 192.6 Period of availability of withheld funds.

(a) Funds withheld under Sec. 1212.4 from apportionment to any State

on or before September 30, 1995, will remain available for apportionment

as follows:

(1) If the funds would have been apportioned under 23 U.S.C.

104(b)(5)(A) but for this section, the funds will remain available until

the end of the fiscal year for which the funds are authorized to be

appropriated.

(2) If the funds would have been apportioned under 23 U.S.C.

104(b)(5)(B) but for this section, the funds will remain available until

the end of the second fiscal year following the fiscal year for which

the funds are authorized to be appropriated.

(3) If the funds would have been apportioned under 23 U.S.C.

104(b)(1) or 104(b)(3) but for this section, the funds will remain

available until the end of the third fiscal year following the fiscal

year for which the funds are authorized to be appropriated.

(b) Funds withheld under Sec. 1212.4 from apportionment to any State

after September 30, 1995 will not be available for apportionment to the

State.

Sec. 192.7 Apportionment of withheld funds after compliance.

Funds withheld under Sec. 1212.4 from apportionment, which remain

available for apportionment under Sec. 1212.6(a), will be made available

to any State that conforms to the requirements of Sec. 1212.4 before the

last day of the period of availability as defined in Sec. 1212.6(a).

[57 FR 35999, Aug. 12, 1992, as amended at 59 FR 39256, Aug. 2, 1994]

Sec. 192.8 Period of availability of subsequently apportioned funds.

(a) Funds apportioned pursuant to Sec. 1212.7 will remain available

for expenditure as follows:

(1) Funds originally apportioned under 23 U.S.C. 104(b)(5)(A) will

remain available until the end of the fiscal year succeeding the fiscal

year in which the funds are apportioned.

(2) Funds originally apportioned under 23 U.S.C. 104(b)(1),

104(b)(2), 104(b)(5)(B), or 104(b)(6) will remain available until the

end of the third fiscal year succeeding the fiscal year in which the

funds are apportioned.

(b) Sums apportioned to a State pursuant to Sec. 1212.7 and not

obligated at the end of the periods defined in Sec. 1212.8(a), shall

lapse or, in the case of funds apportioned under 23 U.S.C. 104(b)(5),

shall lapse and be made available by the Secretary for projects in

accordance with 23 U.S.C. 118(b).

Sec. 192.9 Effect of noncompliance.

If a State has not met the requirements of 23 U.S.C. 159(a)(3) at

the end of the period for which funds withheld under Sec. 1212.4 are

available for apportionment to a State under Sec. 1212.6, then such

funds shall lapse or, in the case of funds withheld from apportionment

under 23 U.S.C. 104(b)(5), shall lapse and be made available by the

Secretary for projects in accordance with 23 U.S.C.118(b).

Sec. 192.10 Procedures affecting States in noncompliance.

(a) Each fiscal year, each State determined to be in noncompliance

with 23 U.S.C. 159, based on FHWA's preliminary review of its statutes,

will be advised of the funds expected to be withheld under Sec. 1212.4

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 FHWA determines that the State is not in compliance with 23

U.S.C. 159 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 Federal Highway Administration, 400 Seventh

Street, SW., Washington, DC 20590.

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

with 23 U.S.C. 159(a)(3), based on FHWA's final determination, will

receive notice of the funds being withheld under Sec. 1212.4 from

apportionment, as part of the certification of apportionments required

under 23 U.S.C. 104(e), which normally occurs on October 1 of each

fiscal year.

[57 FR 35999, Aug. 12, 1992. Re-designated and amended at 60 FR 50100,

Sept. 28, 1995].