Federal Register / Vol. 87, No. 34 / Friday, February 18, 2022 / Proposed Rules 9297 

1The Controlled Substances Act, Public Law 91– 

513, tit. II, 84 Stat. 1242 (1970), as amended, is 

codified at 21 U.S.C. 801 et seq. 

the award factors specified in 

§ 240.21F–6, and determining the award 

dollar and percentage amounts set forth 

in the Preliminary Determination, the 

award factors may be considered by the 

SEC staff and the Commission in dollar 

terms, percentage terms or some 

combination thereof, subject to the 

limitations imposed by § 240.21F–6(d). 

Should you choose to contest a 

Preliminary Determination, you may set 

forth the reasons for your objection to 

the proposed amount of an award, 

including the grounds therefore, in 

dollar terms, percentage terms or some 

combination thereof. 

(1) Before determining whether to 

contest a Preliminary Determination, 

you may: 

(i) Within 30 calendar days of the date 

of the Preliminary Determination, 

request that the Office of the 

Whistleblower make available for your 

review the materials from among those 

set forth in § 240.21F–12(a) that formed 

the basis of the Claims Review Staff’s 

Preliminary Determination. 

(ii) Within 30 calendar days of the 

date of the Preliminary Determination, 

request a meeting with the Office of the 

Whistleblower; however, such meetings 

are not required, and the office may in 

its sole discretion decline the request. 

(2) If you decide to contest the 

Preliminary Determination, you must 

submit your written response and 

supporting materials within 60 calendar 

days of the date of the Preliminary 

Determination, or if a request to review 

materials is made pursuant to paragraph 

(e)(1) of this section, then within 60 

calendar days of the Office of the 

Whistleblower making those materials 

available for your review. 

* * * * * 

By the Commission. 

Dated: February 10, 2022. 

Vanessa A. Countryman, 

Secretary. 

[FR Doc. 2022–03223 Filed 2–17–22; 8:45 am] 

BILLING CODE 8011–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Highway Administration 

23 CFR Part 192 

[Docket No. FHWA–2020–0015] 

RIN 2125–AF93 

Drug Offender’s Driver’s License 

Suspension 

AGENCY: Federal Highway 

Administration (FHWA), U.S. 

Department of Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM); request for comments. 

SUMMARY: FHWA proposes to amend its 

regulations governing each State’s 

certification of whether they choose to 

enact and enforce drug offender’s 

driver’s license requirements or choose 

to oppose enacting or enforcing the drug 

offender’s driver’s license requirement. 

The regulations apply to each State and 

specify the steps that States must take 

to avoid the withholding of Federal-aid 

highway funds for noncompliance with 

the certification requirements. Highway 

Safety is the top priority of both DOT 

and FHWA. The changes that FHWA 

has proposed to the regulations will not 

negatively impact safety, efforts to 

combat substance abuse, or the 

substantive protections provided by the 

State certification requirements. Rather, 

they simply update the regulations to 

align with the wording of relevant 

statutes, increase clarity, and reduce 

administrative burden on States. 

Reducing fatalities and serious injuries 

resulting from impairment will continue 

to be a top priority of the Department 

and FHWA. 

DATES: Comments must be received on 

or before March 21, 2022. 

ADDRESSES: To ensure that you do not 

duplicate your docket submissions, 

please submit them by only one of the 

following means: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov and follow 

the online instructions for submitting 

comments. 

• Mail: Docket Management Facility, 

U.S. Department of Transportation, 1200 

New Jersey Avenue SE, Washington, DC 

20590–0001. 

• Hand Delivery: U.S. Department of 

Transportation, Docket Operations, 

West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue SE, 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. The telephone 

number is (202) 366–9329. 

All submissions should include the 

agency name and the docket number 

that appears in the heading of this 

document or the Regulatory 

Identification Number (RIN) for the 

rulemaking. All comments received will 

be posted without change to http://

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Sarah Pascual, Office of Safety, (HSA), 

(202) 366–0087, or via email at 

sarah.pascual@dot.gov, or Ms. Dawn 

Horan, Office of the Chief Counsel 

(HCC–30), (202) 366–9615, or via email 

at dawn.m.horan@dot.gov. Office hours 

are from 8:00 a.m. to 4:30 p.m., E.T., 

Monday through Friday, except Federal 

holidays. 

SUPPLEMENTARY INFORMATION: 

Electronic Access and Filing 

This document and all comments 

received may be viewed online at http:// 

www.regulations.gov using the docket 

number listed above. Electronic retrieval 

help and guidelines are available on the 

website. It is available 24 hours each 

day, 365 days each year. An electronic 

copy of this document may also be 

downloaded from the Office of the 

Federal Register’s website at: 

www.FederalRegister.gov and the 

Government Publishing Office’s website 

at: www.GovInfo.gov. 

All comments received before the 

close of business on the comment 

closing date indicated above will be 

considered and will be available for 

examination in the docket at the above 

address. Comments received after the 

comment closing date will be filed in 

the docket and will be considered to the 

extent practicable. In addition to late 

comments, FHWA will also continue to 

file relevant information in the docket 

as it becomes available after the 

comment period closing date, and 

interested persons should continue to 

examine the docket for new material. A 

final rule may be published at any time 

after close of the comment period and 

after DOT has had the opportunity to 

review the comments submitted. 

Background 

FHWA is required to withhold an 

amount equal to 8 percent of the amount 

of Federal-aid highway funds required 

to be apportioned to any State under 23 

U.S.C. 104(b)(1) and (2), the National 

Highway Performance Program and the 

Surface Transportation Block Grant 

Program, respectively, on the first day of 

each fiscal year if the State fails to meet 

the requirements in 23 U.S.C. 159 

associated with the revocation or 

suspension of driver’s licenses of 

individuals convicted of drug offenses. 

The statute (23 U.S.C. 159) provides for 

two ways the States can satisfy this 

requirement: (1) The State has enacted 

and is enforcing a law that requires in 

all circumstances, or requires in the 

absence of compelling circumstances 

warranting an exception, the revocation, 

or suspension for at least 6 months, of 

the driver’s license of any individual 

who is convicted of any violation of the 

Controlled Substances Act 1 or any drug 


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2A ‘‘drug offense’’ is defined as ‘‘any criminal 

offense which proscribes the possession, 

distribution, manufacture, cultivation, sale, transfer, 

or the attempt or conspiracy to possess, distribute, 

manufacture, cultivate, sell, or transfer any 

substance the possession of which is prohibited 

under the Controlled Substances Act; or the 

operation of a motor vehicle under the influence of 

such a substance.’’ 23 U.S.C. 159(c)(2). 

offense; 2 or (2) the State submits a 

written certification stating that the 

Governor is opposed to the enactment or 

enforcement of a law involving the 

revocation, suspension, issuance, or 

reinstatement of driver’s licenses to 

convicted drug offenders and submits 

written certification that the legislature 

(including both Houses where 

applicable) has adopted a resolution 

expressing its opposition to a law. 

The regulations that implement this 

law first took effect in 1992. The current 

regulatory language references several 

administrative and fiscal provisions that 

were only applicable the first year the 

regulation was promulgated. This 

proposed rulemaking updates the 

administrative and fiscal language to 

what is currently required of the State. 

The current regulatory language also 

requires each State to annually certify 

their compliance with 23 U.S.C. 159, 

which has proved burdensome for the 

States. This proposed rulemaking 

eliminates the annual certification and 

only requires re-certification when there 

is a change to a State law affecting the 

State’s method of compliance. 

Legal Authority and Statement of the 

Issue 

FHWA is required to withhold an 

amount equal to 8 percent of the amount 

required to be apportioned to any State 

under 23 U.S.C. 104(b)(1) and (2) on the 

first day of each fiscal year if the State 

fails to meet the requirements in 23 

U.S.C. 159 associated with the 

revocation or suspension of driver’s 

licenses of individuals convicted of 

drug offenses. The regulations 

implementing this law in 23 CFR part 

192 reference administrative and fiscal 

provisions that were only applicable the 

first year the regulation was 

promulgated and require annual 

certifications from States. FHWA 

proposes to revise its regulations 

governing the certification requirements 

in 23 CFR part 192 that implement the 

23 U.S.C. 159 requirements to update 

the regulatory language and reduce 

burden on States. 

Discussion of General Requirements 

and Limitations 

Consistent with 23 U.S.C. 159, FHWA 

is proposing to revise § 192.4 to update 

the amount of penalty withholding from 

10 to 8 percent and update what 

apportioned funds the withholding 

applies to by changing sections 

104(b)(1), 104(b)(3), and 104(b)(5) to 

sections 104(b)(1) and (b)(2) of title 23 

of the U.S.C. Proposed § 192.4 also 

allows for the Governor of the State or 

their designee to submit a written 

certification through its respective 

FHWA Division Administrator. This 

provision would result in reduced 

administrative burdens for Governors of 

the State, including time to obtain 

written signatures on certifications. 

In proposed § 192.5, FHWA sets out 

new requirements when certifications 

compliant with 23 U.S.C. 159 are 

required. FHWA proposes to require all 

States to certify to the Secretary of 

Transportation, through their respective 

FHWA Division Administrator, by a 

date to be determined that it meets the 

requirements of 23 U.S.C. 159. This 

certification is needed to obtain a 

baseline from which compliance can be 

determined for all States. Information is 

requested from States regarding how 

much time is needed to provide a 

certification compliance with 23 U.S.C. 

159. Because the timing of the effective 

date of this final rulemaking is 

unknown relative to existing annual 

certification requirements, FHWA will 

either provide a timeframe calculated 

from the publication date of the final 

rule in the Federal Register, or pick a 

date certain depending on the time of 

publication, but in either case, the 

deadline to certify would not be less 

than 120 days from the publication date 

of the final rule in the Federal Register. 

The FHWA is further proposing in 

§ 192.5 to require a State to certify to the 

Secretary of Transportation, through its 

FHWA Division Administrator, that it 

meets the requirements of 23 U.S.C. 159 

when there is a change to the State law, 

regulation, or binding policy relating to 

the suspension, revocation, issuance, or 

reinstatement of driver’s licenses of 

drug offenders within 90 days of the 

effective date of a such a change 

affecting State compliance with 23 

U.S.C. 159. FHWA believes that States 

do not often have changes in State laws, 

regulations, and binding policies 

affecting compliance with 23 U.S.C. 

159, and that annual certification is 

redundant and unnecessary. FHWA 

expects that States will continue to 

monitor State laws, regulations, and 

policies relating to the suspension, 

revocation, issuance, or reinstatement of 

driver’s licenses of drug offenders and 

continue to notify their respective 

FHWA Division Administrator 

accordingly. FHWA also proposes to 

amend § 192.5 to update the wording of 

the certification to be consistent with 

allowing the Governor of the State or the 

Governor’s designee to provide 

certification signatures. Lastly, FHWA 

also proposes to allow submission of 

electronic copies of signed certifications 

to the FHWA Division Administrator. 

These changes will reduce 

administrative burden by decreasing the 

number of submissions of original 

signed certifications. 

FHWA is proposing in § 192.6 to 

clarify, in accordance with the statute, 

that funds withheld under § 192.4 from 

apportionment to any State will not be 

available for apportionment to the State 

and will lapse immediately. 

FHWA proposes in § 192.7 to revise 

the procedures affecting States that are 

in noncompliance with 23 U.S.C. 159. 

FHWA proposes that States that fail to 

notify FHWA within 90 days of the 

effective date of a change to State law, 

regulation, or policy that affects State 

compliance with 23 U.S.C. 159, or are 

found to be in noncompliance based on 

the status of the State’s certification, 

will be advised of the funds expected to 

be withheld under § 192.4 

approximately 90 days before the 

beginning of the fiscal year for which 

the penalty withholding will be applied. 

The proposed revisions to § 192.7 also 

allow for a State to submit 

documentation demonstrating 

compliance. This provision gives a State 

an opportunity to rectify noncompliance 

prior to funds being withheld. 

As stated, FHWA expects that States 

do not often change State laws, 

regulations, and binding policies 

affecting compliance with 23 U.S.C. 

159, and would notify their respective 

FHWA Division Administrators in the 

event of such changes. Furthermore, the 

proposed regulation continues to allow 

FHWA to withhold Federal-aid funding, 

consistent with 23 U.S.C. 159, from a 

non-compliant State in the event the 

State either (1) does not notify FHWA in 

these circumstances or (2) does not 

provide certification in compliance with 

23 U.S.C. 159. Consequently, the 

proposed changes reduce neither safety 

nor the substantive protections provided 

by 23 U.S.C. 159. 

Finally, FHWA proposes to make 

minor technical and conforming 

changes in part 192 to align the rule’s 

language with the wording of relevant 

statutes and to promote overall clarity of 

the rule. 

FHWA requests comments on the 

proposed rule. FHWA also requests 

comments and information regarding 

the assumptions used in, and other 

aspects of, the economic analysis of the 

proposed rule to inform the economic 

analysis at the final rule stage. FHWA 

presents the economic analysis in a 


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Federal Register / Vol. 87, No. 34 / Friday, February 18, 2022 / Proposed Rules 9299 

3See DOT Order 2100.6A, ‘‘Rulemaking and 

Guidance Procedures’’ (June 7, 2021). 4 50 States as well as Washington, DC and Puerto 

Rico. 5 2020 General Schedule (GS) Locality Pay Tables. 

An average GS–12, Step 1 wage was calculated 

using wages for all localities in which there is a 

FHWA Division Office: https://www.opm.gov/ 

policy-data-oversight/pay-leave/salaries-wages/ 

2020/general-schedule/. 

6BLS May 2019 National Industry-Specific 

Occupational Employment and Wage Estimates 

NAICS 999200—State Government, excluding 

schools and hospitals (OES Designation). The 

employees expected to work on the certification 

under the current regulation are Top Executives 

(11–1000). The employees expected to work on the 

certification under the proposed rule are Business 

Operations Specialists (13–1198): https://

www.bls.gov/oes/current/naics4_999200.htm. Wage 

rates were adjusted to 2020 dollars using a 2.6% 

adjustment for inflation, which is the 2020 Federal 

cost of living adjustment: https://www.opm.gov/ 

policy-data-oversight/pay-leave/salaries-wages/ 

salary-tables/pdf/2020/GS.pdf. 

7BLS Employer Costs for Employee 

Compensation, June 2020, Table 3 (page 5) State 

and Local Government, State and Local Government 

Workers: https://www.bls.gov/news.release/ 

ecec.t03.htm. For this group, 62.2 percent of 

employee compensation is wages and the remainder 

is the cost of benefits, which suggests factoring 

wages by 1.61 (100%/62.2%) to estimate the total 

cost of compensation. 

supporting statement and a spreadsheet 

found in the rulemaking docket 

(FHWA–2020–0015) and summarizes 

the analysis under the ‘‘Executive Order 

12866 (Regulatory Planning and 

Review), Executive Order 13563 

(Improving Regulation and Regulatory 

Review), and DOT Rulemaking Policies 

and Procedures’’ heading of this 

preamble. 

Rulemaking Analyses and Notices 

Executive Order 12866 (Regulatory 

Planning and Review), Executive Order 

13563 (Improving Regulation and 

Regulatory Review), and DOT 

Rulemaking Policies and Procedures 

FHWA has determined that the 

proposed rule will not be a significant 

regulatory action within the meaning of 

Executive Order (E.O.) 12866 or DOT 

rulemaking policies and procedures.3

This action complies with E.O. 12866 

and 13563 to improve regulation. 

FHWA anticipates that the proposed 

rule would not adversely affect, in a 

material way, any sector of the 

economy. In addition, these changes 

would not interfere with any action 

taken or planned by another agency and 

would not materially alter the budgetary 

impact of any entitlements, grants, user 

fees, or loan programs. The proposed 

rule also does not raise any novel legal 

or policy issues. 

FHWA has determined that this 

action could generate cost savings, 

measured in 2020 dollars and 

discounted at 7 percent, expected to 

total $181,812 over 10 years. The 

present value annualized total is 

$25,886 per year. 

The quantified cost savings resulting 

from this action are generated from 

reducing administrative burdens. The 

proposed rule will reduce the burden on 

States and FHWA by significantly 

reducing the number of compliance 

certifications required annually, without 

compromising the intent of the statute. 

Currently, States must certify their 

compliance with 23 U.S.C. 159 

annually. The proposed rule requires 

States only notify FHWA of a change in 

type of compliance, instead of 

recertifying compliance every year. 

Furthermore, the proposed rule will 

result in additional cost savings by 

allowing the State Governors to appoint 

a designee to certify compliance, instead 

of requiring the Governor’s signature on 

the certification. This change will result 

in a lower-level of staff time needed to 

complete the certification. Under the 

proposed rule, the States must certify 

compliance in the first year after the 

rule takes effect. This will be an 

administrative cost to all 52 States.4

However, this certification may be made 

using the new rule, allowing the 

Governor of the State to appoint a 

designee. Therefore, the costs to the 

States in the first year will still be lower 

under the proposed rule. 

The proposed rule is not expected to 

affect the number of States in 

compliance with 23 U.S.C. 159. FHWA 

reports no States out of compliance in 

the last 3 years. Furthermore, in recent 

years, only one State has failed to 

certify, and this failure is not considered 

a typical occurrence. Based on this 

current trend, there is no expectation 

that any States will be out of 

compliance in the future due to the 

proposed rule or otherwise. Therefore, 

FHWA believes there will be no 

negative social consequences or 

disbenefits from the proposed rule. 

The proposed rule does not change 

the current requirement that State 

legislatures must pass a resolution in 

order to enact a change in type of 

compliance. Therefore, there will be no 

change in cost for the State legislature 

due to the proposed rule. 

The method for estimating the cost 

savings from the proposed rule is as 

follows. The analysis uses a base year of 

2020 and a 10-year analysis period. 

Estimated wage rates for FHWA 

employees at division offices, who 

currently process the State 

certifications, are based on 2020 General 

Schedule (GS) Locality Pay Tables.5

Estimated wage rates for FHWA 

Headquarters staff, who compile and 

analyze the certifications nationwide, 

were obtained from the same source 

using the Washington, District of 

Columbia, locality table. Estimated 

wages for State government employees 

were obtained from the Bureau of Labor 

Statistics occupational employment 

statistics for State government 

employees. Lower wages were used in 

the proposed rule scenario, compared to 

the current regulation, in order to 

account for the ability of the Governor 

of the State to appoint a designee.6 To 

account for the cost of employer 

provided benefits, all wage rates were 

multiplied by a factor of 1.61.7 Wage 

rates were adjusted using this factor to 

generate a total cost of labor per hour, 

as seen in Table 1. 

TABLE 1—HOURLY WAGE RATES

Position Base wage 

per hour 

Total wage 

per hour 

FHWA Division Office Staff (GS–12) ....................................................................................................................... $38.09 $61.33 

FHWA Office of Safety Staff (GS–13) ..................................................................................................................... 49.19 79.20 

FHWA Office of the Chief Counsel Staff (GS–14) .................................................................................................. 58.13 93.59 

State Government Top Executives (11–1000) ........................................................................................................ 45.85 75.74 

State Government Business Operations Specialists (13–1198) ............................................................................. 33.89 55.98 

For State department of transportation 

administrative cost savings, under 

current regulation, all 50 States plus the 

District of Columbia and Puerto Rico 

must submit proof of compliance each 

year. Under the proposed rule, after the 

first year, only States which change 

compliance type must submit a 

certification. The estimated time burden 


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on the States per certification is 5 hours 

in both the current and proposed rule 

scenarios. Given that FHWA historically 

receives 1–4 changes per year from 

States, going forward, the analysis 

assumed two compliance changes per 

year to be processed, after the first year 

of analysis. These changes were 

assumed to be medium to high level of 

administrative burden for processing by 

FHWA Division Office employees and 

Headquarters staff. 

Under current regulation, the 

certification of compliance must be 

signed by the Governor of each State, 

while under the proposed rule, the 

Governor may appoint a designee. Based 

on current trends, FHWA assumes two 

States will make a change and submit 

for certification each year, under the 

proposed rule, with 5 hours of burden 

per State. Furthermore, the estimated 

wage rate was reduced to account for 

the appointment of a designee by the 

Governor under the proposed rule. 

Under the proposed rule, all 52 States 

will spend 5 hours certifying 

compliance in the first year, 2021, at a 

lower administrative cost due to the 

proposed rule, as seen in Table 2. For 

all years after the initial certification, 

rather than 52 States spending 5 hours 

per year submitting a certification with 

the Governor’s signature, only 2 States 

will spend 5 hours per year submitting 

a certification with a designee’s 

signature. This resulted in a yearly 

undiscounted cost savings of $19,132 

for the States, beginning in 2022, as 

shown in Table 2. 

TABLE 2—ESTIMATED CHANGE IN ADMINISTRATIVE BURDEN ON THE STATES

Year State administrative 

cost, current 

State administrative 

cost, proposed rule 

Total administrative 

cost savings 

2021 ............................................................................................. $19,692 $14,555 $5,137 

2022 ............................................................................................. 19,692 560 19,132 

2023 ............................................................................................. 19,692 560 19,132 

2024 ............................................................................................. 19,692 560 19,132 

2025 ............................................................................................. 19,692 560 19,132 

2026 ............................................................................................. 19,692 560 19,132 

2027 ............................................................................................. 19,692 560 19,132 

2028 ............................................................................................. 19,692 560 19,132 

2029 ............................................................................................. 19,692 560 19,132 

2030 ............................................................................................. 19,692 560 19,132 

Total ...................................................................................... 196,918 19,594 177,325 

For FHWA administrative cost 

savings, under current regulation, 

FHWA receives 52 certifications 

annually which are processed by both 

the division offices and Headquarters. 

FHWA estimates that approximately 38 

of these certifications are a low 

administrative burden (30 minute 

processing time at the district office), 12 

are a moderate administrative burden 

(2.5 hour processing time at the district 

office), and 2 are high administrative 

burden (20 hour processing time at the 

district office). Calculations assume a 

GS–12 wage for FHWA Division Office 

employees. In addition, under the 

current regulation, each of the 52 

certifications is processed for an 

additional 2 hours at Headquarters at 

the GS–13 and GS–14 levels. 

Under the proposed rule, two 

certifications per year were assumed, at 

a moderate and high administrative 

burden, respectively. Wage rates were 

assumed to be the same across the 

current and proposed rule scenarios for 

FHWA. This resulted in a yearly 

undiscounted administrative cost 

savings of $9,939 for FHWA, beginning 

in 2022, as shown in Table 3. 

TABLE 3—ESTIMATED CHANGE IN ADMINISTRATIVE BURDEN ON FHWA 

Year FHWA administrative 

cost, current 

FHWA administrative 

cost, proposed rule 

Total administrative 

cost savings 

2021 ............................................................................................. $12,168 $12,168 $0 

2022 ............................................................................................. 12,168 2,229 9,939 

2023 ............................................................................................. 12,168 2,229 9,939 

2024 ............................................................................................. 12,168 2,229 9,939 

2025 ............................................................................................. 12,168 2,229 9,939 

2026 ............................................................................................. 12,168 2,229 9,939 

2027 ............................................................................................. 12,168 2,229 9,939 

2028 ............................................................................................. 12,168 2,229 9,939 

2029 ............................................................................................. 12,168 2,229 9,939 

2030 ............................................................................................. 12,168 2,229 9,939 

Total ...................................................................................... 121,680 32,233 89,448 

Total cost savings were calculated by 

adding the State and FHWA 

administrative cost savings and 

discounting at 7 percent and 3 percent, 

as seen in Table 4. Overall, the total 

undiscounted administrative cost 

savings per year are $5,137 in 2021 and 

$29,071 after 2021. The total 

administrative cost savings over 10 

years are $181,812, discounted at 7 

percent and $224,741, discounted at 3 

percent. 


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TABLE 4—ESTIMATED ADMINISTRATIVE COST SAVINGS FROM THE PROPOSED RULE

Year Total administrative 

cost savings 

Total administrative 

cost savings, 

discounted at 7% 

Total administrative 

cost savings, 

discounted at 3% 

2021 ............................................................................................. $5,137 $4,801 $4,987 

2022 ............................................................................................. 29,071 25,391 27,402 

2023 ............................................................................................. 29,071 23,730 26,604 

2024 ............................................................................................. 29,071 22,178 25,829 

2025 ............................................................................................. 29,071 20,727 25,077 

2026 ............................................................................................. 29,071 19,371 24,346 

2027 ............................................................................................. 29,071 18,104 23,637 

2028 ............................................................................................. 29,071 16,919 22,949 

2029 ............................................................................................. 29,071 15,812 22,280 

2030 ............................................................................................. 29,071 14,778 21,631 

Total ...................................................................................... 266,772 181,812 224,741 

Overall, the proposed rule would 

result in a reduced administrative 

burden to both the States and FHWA 

and lead to cost savings of $181,812 

over 10 years, discounted at 7 percent. 

As noted above the rule is nonsignificant and is not expected to 

generate any other costs or benefits 

aside from the administrative cost 

savings. 

Regulatory Flexibility Act 

In compliance with the Regulatory 

Flexibility Act (Pub. L. 96–354, 5 U.S.C. 

601–612), FHWA has evaluated the 

effects of this proposed rule on small 

entities, such as local governments and 

businesses, and anticipates that this 

action would not have a significant 

economic impact on a substantial 

number of small entities. The proposed 

rule affects State governments and State 

governments do not meet the definition 

of a small entity. Therefore, FHWA 

certifies that the action will not have a 

significant economic impact on a 

substantial number of small entities. 

Unfunded Mandates Reform Act of 

1995 

FHWA has determined that this 

proposed rule does not impose 

unfunded mandates as defined by the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, March 22, 1995, 109 

Stat. 48). The actions in this proposed 

rule will not result in the expenditure 

by State, local, and Tribal governments, 

in the aggregate, or by the private sector, 

of $155 million or more in any one year 

(when adjusted for inflation) for either 

State, local, and Tribal governments in 

the aggregate, or by the private sector. In 

addition, the definition of ‘‘Federal 

Mandate’’ in the Unfunded Mandates 

Reform Act excludes financial 

assistance of the type in which State, 

local, or Tribal governments have 

authority to adjust their participation in 

the program in accordance with changes 

made in the program by the Federal 

Government. The Federal-aid highway 

program permits this type of flexibility. 

Executive Order 13132 (Federalism 

Assessment) 

FHWA has analyzed this proposed 

rule in accordance with the principles 

and criteria contained in E.O. 13132. 

FHWA has determined that this action 

would not have sufficient federalism 

implications to warrant the preparation 

of a federalism assessment. FHWA has 

also determined that this action would 

not preempt any State law or State 

regulation or affect the States’ ability to 

discharge traditional State governmental 

functions. 

Executive Order 12372 

(Intergovernmental Review) 

The regulations implementing E.O. 

12372 regarding intergovernmental 

consultation on Federal programs and 

activities do not apply to this program. 

Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995 (PRA) (44 U.S.C. 3501, et seq.), 

Federal agencies must obtain approval 

from the Office of Management and 

Budget (OMB) for each collection of 

information they conduct, sponsor, or 

require through regulations. The OMB 

has renewed their approval for 

information collection entitled ‘‘Drug 

Offender’s Driver’s License Suspension 

Certification’’ (OMB Control No. 2125– 

0579). 

National Environmental Policy Act 

The Agency has analyzed this 

proposed rulemaking action pursuant to 

the National Environmental Policy Act 

of 1969 (42 U.S.C. 4321 et seq.) and has 

determined that it is categorically 

excluded under 23 CFR 771.117(c)(20), 

which applies to the promulgation of 

regulations, and that no unusual 

circumstances are present under 23 CFR 

771.117(b). Categorically excluded 

actions meet the criteria for categorical 

exclusions under the Council on 

Environmental Quality regulations and 

under 23 CFR 771.117(a) and normally 

do not require any further NEPA 

approvals by FHWA. 

Executive Order 13175 (Tribal 

Consultation) 

FHWA has analyzed this proposed 

rule under E.O. 13175 and believes that 

it will not have substantial direct effects 

on one or more Indian Tribes, does not 

impose substantial direct compliance 

costs on Indian Tribal governments, and 

does not preempt Tribal law. This 

proposed rule does not impose any 

direct compliance requirements on 

Indian Tribal governments nor does it 

have any economic or other impacts on 

the viability of Indian Tribes. Therefore, 

a Tribal summary impact statement is 

not required. 

Executive Order 13211 (Energy Effects) 

FHWA has analyzed this proposed 

rule under E.O. 13211, Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use. FHWA has 

determined that this action is not a 

significant energy action under the E.O. 

and is not likely to have a significant 

adverse effect on the supply, 

distribution, or use of energy. Therefore, 

a Statement of Energy Effects is not 

required. 

Executive Order 12898 (Environmental 

Justice) 

E.O. 12898 requires that each Federal 

agency make achieving environmental 

justice part of its mission by identifying 

and addressing, as appropriate, 

disproportionately high and adverse 

human health or environmental effects 

of its programs, policies, and activities 

on minorities and low-income 

populations. FHWA has determined that 


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9302 Federal Register / Vol. 87, No. 34 / Friday, February 18, 2022 / Proposed Rules 

this proposed rule does not raise any 

environmental justice issues. 

Regulation Identification Number 

A RIN is assigned to each regulatory 

action listed in the Unified Agenda of 

Federal Regulations. The Regulatory 

Information Service Center publishes 

the Unified Agenda in April and 

October of each year. The RIN number 

contained in the heading of this 

document can be used to cross-reference 

this action with the Unified Agenda. 

List of Subjects in 23 CFR Part 192 

Administrative practice and 

procedure, Drug abuse, Grant 

programs—transportation, Highway 

safety, Reporting and recordkeeping 

requirements. 

Issued under authority delegated in 49 CFR 

1.81 and 1.85. 

Stephanie Pollack, 

Acting Administrator, Federal Highway 

Administration. 

■ In consideration of the foregoing, 

FHWA proposes to revise 23 CFR part 

192 to read as follows: 

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

PART 192—DRUG OFFENDER’S 

DRIVER’S LICENSE SUSPENSION 

Sec. 

192.1 Scope. 

192.2 Purpose. 

192.3 Definitions. 

192.4 Adoption of drug offender’s driver’s 

license suspension. 

192.5 Certification requirements. 

192.6 Period of availability of withheld 

funds. 

192.7 Procedures affecting States in 

noncompliance. 

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

§ 192.1 Scope. 

This part prescribes the requirements 

necessary to implement 23 U.S.C. 159, 

which encourages States to enact and 

enforce drug offender’s driver’s license 

suspensions. 

§ 192.2 Purpose. 

The purpose of this part is to specify 

the steps that States must take to avoid 

the withholding of Federal-aid highway 

funds for noncompliance with 23 U.S.C. 

159. 

§ 192.3 Definitions. 

As used in this part: 

(a) Convicted includes adjudicated 

under juvenile proceedings. 

(b) Driver’s license means a license 

issued by a State to any individual that 

authorizes the individual to operate a 

motor vehicle on highways. 

(c) Drug offense means: 

(1) The possession, distribution, 

manufacture, cultivation, sale, transfer, 

or the attempt or conspiracy to possess, 

distribute, manufacture, cultivate, sell, 

or transfer any substance the possession 

of which is prohibited under the 

Controlled Substances Act, or 

(2) The operation of a motor vehicle 

under the influence of such a substance. 

(d) Substance the possession of which 

is prohibited under the Controlled 

Substances Act or substance means a 

controlled or counterfeit substance, as 

those terms are defined in subsections 

102(6) and (7) of the Comprehensive 

Drug Abuse Prevention and Control Act 

of 1970 (21 U.S.C. 802(6) and (7) and 

listed in 21 CFR 1308.11 through 

1308.15. 

§ 192.4 Adoption of drug offender’s 

driver’s license suspension. 

(a) The Secretary shall withhold 8 

percent of the amount required to be 

apportioned to any State under each of 

sections 104(b)(1) and (b)(2) of title 23 

of the U.S.C. on the first day of the next 

fiscal year if the State does not meet the 

requirements of this section. 

(b) A State meets the requirements of 

this section if: 

(1) The State has enacted and is 

enforcing a law that requires in all 

circumstances, or requires in the 

absence of compelling circumstances 

warranting an exception: 

(i) The revocation, or suspension for 

at least 6 months, of the driver’s license 

of any individual who is convicted, after 

the enactment of such law, of 

(A) Any violation of the Controlled 

Substances Act, or 

(B) Any drug offense, and 

(ii) A delay in the issuance or 

reinstatement of a driver’s license to 

such an individual for at least 6 months 

after the individual otherwise would 

have been eligible to have a driver’s 

license issued or reinstated if the 

individual does not have a driver’s 

license, or the driver’s license of the 

individual is suspended, at the time the 

individual is so convicted, or 

(2) The Governor of the State or their 

designee: 

(i) Submits to the Secretary through 

its respective FHWA Division 

Administrator a written certification 

stating that the Governor is opposed to 

the enactment or enforcement in the 

State of a law described in paragraph 

(b)(1) of this section relating to the 

revocation, suspension, issuance, or 

reinstatement of driver’s licenses to 

convicted drug offenders; and 

(ii) Submits to the Secretary a written 

certification that the legislature 

(including both Houses where 

applicable) has adopted a resolution 

expressing its opposition to a law 

described in paragraph (b)(1) of this 

section. 

(c) A State that makes exceptions for 

compelling circumstances must do so in 

accordance with a State law, regulation, 

binding policy directive or statewide 

published guidelines establishing the 

conditions for making such exceptions 

and in exceptional circumstances 

specific to the offender. 

§ 192.5 Certification requirements. 

(a) Each State shall certify to the 

Secretary by [DATE TO BE 

DETERMINED during development of 

FINAL RULE] that it meets the 

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

regulation. Subsequently, each State 

shall certify to the Secretary through its 

respective FHWA Division 

Administrator that it meets the 

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

regulation when there is a change to the 

State law, regulation, or binding policy 

relating to the suspension, revocation, 

issuance, or reinstatement or driver’s 

licenses of drug offenders within 90 

days of the effective date of a State 

legislative change that affects State 

compliance with this section. 

(b) If the State believes it meets the 

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

regulation on the basis that it has 

enacted and is enforcing a law that 

suspends or revokes the driver’s 

licenses of drug offenders, the 

certification shall contain a statement by 

the Governor of the State, or their 

designee, that the State has enacted and 

is enforcing a Drug Offender’s Driver’s 

License Suspension law that conforms 

to 23 U.S.C. 159(a)(3)(A). The certifying 

statement may be worded as follows: I, 

(Name of Governor or designee), (ADD 

TITLE on behalf of the) Governor of the 

(State or Commonwealth) of ll, do 

hereby certify that the (State or 

Commonwealth) of ll, has enacted 

and is enforcing a Drug Offender’s 

Driver’s License Suspension law that 

conforms to section 23 U.S.C. 

159(a)(3)(A). 

(c) If the State believes it meets the 

requirements of 23 U.S.C. 159(a)(3)(B) 

on the basis that it opposes a law that 

requires the suspension, revocation, or 

delay in issuance or reinstatement of the 

driver’s licenses of drug offenders that 

conforms to 23 U.S.C. 159(a)(3)(A), the 

certification shall contain: 

(1) A statement by the Governor of the 

State or their designee that the Governor 

is opposed to the enactment or 

enforcement of a law that conforms to 

23 U.S.C. 159(a)(3)(A) and that the State 

legislature has adopted a resolution 

expressing its opposition to such a law. 

The certifying statement may be worded 


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Federal Register / Vol. 87, No. 34 / Friday, February 18, 2022 / Proposed Rules 9303 

as follows: I, (Name of Governor or 

designee), (ADD TITLE on behalf of the) 

Governor of the (State or 

Commonwealth) of ll, 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 ll, has adopted a 

resolution expressing its opposition to 

such a law. 

(2) Until a State has been determined 

to be in compliance with the 

requirements of 23 U.S.C. 159(a)(3)(B) 

and this regulation, the certification 

shall include a copy of the resolution. 

(d) The Governor or their designee 

shall submit an electric copy of the 

certification to its respective FHWA 

Division Administrator. The FHWA 

Division Administrator shall retain an 

electronic copy and forward an 

electronic copy to both the FHWA 

Office of Safety and the FHWA Office of 

the Chief Counsel. 

(e) Any changes to the certification or 

supplemental information necessitated 

by the review of the certifications as 

they are forwarded, State legislative 

changes that affects State compliance of 

this section, or changes in State 

enforcement activity shall be submitted 

within 90 days of the change being 

effective. 

§ 192.6 Period of availability of withheld 

funds. 

Funds withheld under § 192.4 from 

apportionment to any State will not be 

available for apportionment to the State 

and shall lapse immediately. 

§ 192.7 Procedures affecting States in 

noncompliance. 

(a) If FHWA determines that the State 

is not in compliance with 23 U.S.C. 

159(a)(3), the State will be advised of 

the funds expected to be withheld under 

§ 192.4 from apportionment, as part of 

the advance notice of apportionments 

required under 23 U.S.C. 104(e). This 

notification will normally occur not 

later than 90 days before the beginning 

of the fiscal year for which the sums to 

be apportioned are authorized. The 

State may, within 30 days of its receipt 

of the advance notice of 

apportionments, submit documentation 

demonstrating its compliance. 

Documentation shall be submitted 

electronically to the FHWA Division 

Administrator for that State. The FHWA 

Division Administrator shall retain an 

electronic copy and forward an 

electronic copy to both the FHWA 

Office of Safety and the FHWA Office of 

the Chief Counsel. 

(b) Each fiscal year, each State 

determined not to be in compliance 

with 23 U.S.C. 159(a)(3), based on 

FHWA’s final determination, will 

receive notice of the funds being 

withheld under § 192.4 from 

apportionment, as part of the 

certification of apportionments required 

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

occurs on October 1 of each fiscal year. 

[FR Doc. 2022–03172 Filed 2–17–22; 8:45 am] 

BILLING CODE 4910–22–P 

GENERAL SERVICES 

ADMINISTRATION 

41 CFR Part 102–39 

[FMR Case 2019–102–01; Docket No. GSA– 

FMR–2019–0015; Sequence No. 1] 

RIN 3090–AK11 

Federal Management Regulation; 

Replacement of Personal Property 

Pursuant to the Exchange/Sale 

Authority 

AGENCY: Office of Government-wide 

Policy, General Services Administration 

(GSA). 

ACTION: Proposed rule. 

SUMMARY: GSA is proposing to amend 

the Federal Management Regulation 

(FMR) to clarify the exchange/sale 

provisions to improve the application of 

this important authority across Federal 

agencies. The related FMR part 

Replacement of Personal Property to the 

Exchange/Sale Authority was last 

revised November 1, 2011. 

DATES: Interested parties should submit 

comments in writing on or before April 

19, 2022. 

ADDRESSES: Submit comments in 

response to FMR Case 2019–102–01 to 

Regulations.gov at https://

www.regulations.gov. Enter ‘‘FMR Case 

2019–102–01’’ under the heading ‘‘Enter 

Keyword or ID’’ and select ‘‘Search’’. 

Select the link ‘‘Submit a Comment’’ 

that corresponds with ‘‘FMR Case 2019– 

102–01’’. Follow the instructions 

provided at the ‘‘Comment Now’’ 

screen. Please include your name, 

company name (if any), and ‘‘FMR Case 

2019–102–01’’ on your attached 

document. 

All comments received will be posted 

without change, including any personal 

and/or business confidential 

information provided. To confirm 

receipt of your comment(s), please 

check https://www.regulations.gov 

approximately two to three days after 

submission to verify posting. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact William 

Garrett, Director, Personal Property 

Policy Division, Office of Governmentwide Policy, Office of Asset and 

Transportation Management (MA), at 

202–368–8163 or william.garrett@

gsa.gov. For information pertaining to 

status or publication schedules, contact 

the Regulatory Secretariat (MVCB), 202– 

501–4755. Please cite FMR Case 2019– 

102–01. 

SUPPLEMENTARY INFORMATION: 

A. Authority and Background of This 

Program 

Personal property includes a wide 

variety of Government items such as 

computers, office equipment, furniture, 

and vehicles, as well as more 

specialized items specific to agencies, 

such as medical equipment for the U.S. 

Department of Veterans Affairs (VA) and 

medical helicopters for the U.S. Army. 

The Federal Government owns and 

manages more than a trillion dollars of 

personal property. In Fiscal Year (FY) 

2020, Federal agencies reported 

approximately $1.9 trillion in 

capitalized personal property assets 

under their control. Over time, agencies’ 

personal property may no longer 

adequately perform the task for which it 

was acquired. 40 United States Code 

(U.S.C.) § 503 authorizes agencies to 

exchange (trade-in) or sell such property 

still needed to meet mission needs and 

apply the exchange allowance or sale 

proceeds to acquire similar replacement 

property. 

Such transactions are known as 

personal property ‘‘exchange/sale’’ 

transactions. These transactions 

facilitate the replacement of personal 

property by allowing agencies to offset 

the cost of new, similar property, 

resulting in savings to agency funds. 

Without this authority, agencies would 

have to expend the full purchase price 

of new personal property from 

appropriations, while depositing the 

proceeds from the disposition of worn 

property in the U.S. Treasury. Because 

exchange/sale transactions provide 

agencies with opportunities to save 

costs, it is important that agencies using 

this authority establish policies, 

processes, and procedures with effective 

controls, in order to ensure that they 

meet applicable requirements and are 

good stewards of Government resources. 

GSA’s regulations at 41 Code of 

Federal Regulations (CFR) Part 102–39 

describe the terms, conditions, and 

reporting requirements for exchanges 

and sales of personal property. The 

personal property exchange/sale 

authority in FMR § 102–39.60 allows 

agencies to replace property that is not 

excess or surplus, i.e., the property is 

still needed to meet the agency’s 

continuing mission. In addition, 


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