Penalty Transfer Provisions Questions & Answers
Question 1: What percentage of funds are subject to transfer?
Answer 1: States that fail to enact or enforce compliant Open Container and/or Repeat Offender laws by October 1 of each fiscal year will have an amount equal to 2.5 percent (previously 3 percent) of Federal-aid funds apportioned for the National Highway Performance Program (NHPP) and the Surface Transportation Program (STP) (apportioned under 23 U.S.C. § 104(b) (1) and 23 U.S.C. § 104(b)(2)) reserved until the State certifies how it will use the reserved funds. The penalties are cumulative; that is a 2.5 percent penalty applies separately for each program (i.e., Section 154 or 164) where non-compliance occurs.
Question 2: What is the new process for penalty transfer funds for States that do not comply with 23 U.SC. 154 and 23 U.S.C. 164?
Answer 2: Some significant changes to the penalty transfer funds under MAP-21 include:
- FHWA will reserve the penalty funds on October 1 of each fiscal year until the States certify how they intend to use those funds.
- The penalty funds will be reserved from the State's Federal-aid funds apportioned for the National Highway Performance Program (NHPP) and the Surface Transportation Program (STP).
- States must certify how they intend to use the funds by notifying the NHTSA Regional Administrator and FHWA Division Administrator how the funds will be "split" between the permitted uses.
- If a State elects to use the funds for alcohol-impaired driving programs, the funds will be transferred to NHTSA's Section 402 apportionment.
- If the State elects to use the funds to conduct HSIP eligible activities, the funds will be released to the State DOT.
Question 3: Does MAP-21 change the compliance criteria for the Repeat Offender law (23 USC 164)?
Answer 3: Yes. MAP-21 makes a change to the mandatory license suspension criteria to the Repeat Offender law. States now have to require the use of an interlock for not less than one year or require a one-year hard license suspension to be compliant. Also, MAP-21 no longer requires location restrictions on operation of a motor vehicle equipped with an ignition interlock during the one-year license suspension period. The other compliance criteria are unchanged by MAP-21 and remain applicable.
Question 4: When will the changes to the penalty transfer provisions take effect?
Answer 4: The effective date of MAP-21 is October 1, 2012. The changes will impact the penalty transfer funds for States starting in FY 2013 and each fiscal year thereafter.
Question 5: When will the penalties for 154 and 164 be posted for the states?
Answer 5: The Final Apportionment Notice issued by FHWA, which normally occurs on October 1st each fiscal year, details the apportionments by State and program, the States subject to penalty provisions, and the amount of funds affected by those penalty provisions. The Section 154 and 164 penalty amounts are reserved from the apportionments.
Question 6: Will the penalty transfer funds released back to the State DOT be transferred into the Highway Safety Improvement Program (HSIP)?
Answer 6: No. Penalty transfer funds are released to the State DOT to conduct HSIP eligible activities, but they are not transferred into the HSIP. Separate accounting codes will be established for the penalty funds.