[Federal Register Volume 59, Number 114 (Wednesday, June 15, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14463]
[[Page Unknown]]
[Federal Register: June 15, 1994]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
National Highway Traffic Safety Administration
23 CFR Part 1260
[Docket No. 93-8; Notice 4]
RIN 2127-AE52
Certification of Speed Limit Enforcement; Revision of Procedures
AGENCY: Federal Highway Administration (FHWA) and National Highway
Traffic Safety Administration (NHTSA), Department of Transportation.
ACTION: Final rule.
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SUMMARY: This notice amends 23 CFR 1260 by establishing additional
sanctions against a State having a compliance score exceeding the
national maximum speed limit (NMSL) compliance score for any
consecutive year after a year of non-compliance. The purpose of this
revision is to encourage non-complying States to make efforts to reduce
their scores in years succeeding any year in which they exceed the NMSL
compliance score.
EFFECTIVE DATE: July 15, 1994.
FOR FURTHER INFORMATION CONTACT: In FHWA, Julie Anna Cirillo, Chief,
Information Management and Analysis Branch, 202-366-2170. In NHTSA, J.
Michael Sheehan, Chief, Police Traffic Services Division, 202-366-4295.
SUPPLEMENTARY INFORMATION:
Background
The 55 mph NMSL was first instituted in 1974. FHWA and NHTSA have
shared responsibility for the enforcement of the NMSL. The Intermodal
Surface Transportation Efficiency Act of 1991 (ISTEA) required the
Secretary of Transportation to change the regulation governing the
NMSL. Because of this statutory mandate, FHWA and NHTSA published a
notice of proposed rulemaking (NPRM) to amend this regulation in the
Federal Register on January 4, 1993 (58 FR 186).
ISTEA required that the new rule establish speed limit compliance
requirements on 65 mph roads, in addition to 55 mph roads, and include
a formula for determining compliance by the States with such
requirements.
On October 22, 1993, NHTSA and FHWA published a final rule in the
Federal Register (58 FR 54812), which revised the NMSL procedures in 23
CFR 1260 to provide that the penalty transfer of highway construction
funds to 23 U.S.C. Sec. 402 programs would not exceed the greater of
(i) one and one-half percent of the construction funds, or (ii) the
total section 402 apportionment for the applicable fiscal year. A
subsequent year penalty was not proposed in the NPRM and, therefore,
was not incorporated into the final rule.
Some commenters, in response to the NPRM, objected to the absence
of incentives in the NPRM for States to seek improvement in their NMSL
compliance scores. One commenter suggested that a subsequent year
penalty for non-compliance could provide such incentives.
As adopted, the regulation provided that a non-complying State
would transfer the same amount of funds year after year, which would
have a minimal impact, especially in view of the graduated penalty
categories that were utilized. The agencies therefore published a
Supplemental Notice of Proposed Rulemaking which was published in the
Federal Register on October 22, 1993 (58 FR 54832) (the SNPRM) on the
same day as the final rule (58 FR 54812), to propose to add subsection
(d) to 23 CFR Sec. 1260.19, which would impose an additional one
percent penalty on States that failed to comply in successive years.
This change to the regulation would have the effect of transferring a
maximum of two and one-half percent of the funds apportioned to the
State for Federal-aid highways and highway safety construction programs
under section 104(b) of Title 23, United States Code (other than
paragraph (5)) to the State's apportionment under 23 U.S.C. 402 for the
fiscal year.
Under the SNPRM, the maximum amount would be transferred if such
State (1) was in the highest penalty category pursuant to
Sec. 1260.19(c) (i)-(iv) in the immediately previous fiscal year and
(2) did not improve its score in the current fiscal year so as to be
within the range of scores for the applicable second highest penalty
category established in Sec. 1260.19(c) (i)-(iv). A non-complying State
could avoid the additional one percent penalty transfer if it improved
its score into a lower penalty category. Such a State would then be
subject only to the amount of penalty for that category under
Sec. 1260.19(c). If a non-complying State remained in its former
penalty category, or had a worse score which moved it into a higher
category, the State's penalty transfer would be the transfer amount for
that category plus the additional one percent penalty.
The agencies also proposed to make a minor revision to
Sec. 1260.21(c) to clarify that the 23 U.S.C. Sec. 402 apportionment
amount could be exceeded for successive year penalty transfers.
Discussion of Comments
The agencies received responses from eleven commenters. Some of the
comments concerned matters that were not specifically related to the
subsequent year penalty issue and had been resolved in the final rule
published on October 22, 1993. For example, comments from the Michigan
State Police, the Department of California Highway Patrol and the
Illinois Department of Transportation opposed altogether the imposition
of economic sanctions. These commenters expressed the belief that these
sanctions are counterproductive and misdirect excessive attention to
speed compliance issues. As the agencies explained in their October 22,
1993 final rule, the requirement that sanctions be imposed to encourage
speed limit control on NMSL roadways is statutorily mandated.
Similarly, Advocates for Highway and Auto Safety (Advocates) and
the Michigan State Police recommended that transferred funds should be
designated for a limited number of purposes. The agencies had proposed,
in the January 3, 1993 NPRM that transferred funds would be used
principally for speed limit enforcement, but decided in the October
1993 final rule, for the reasons described therein, not to specify the
use of funds for speed limit enforcement or any other specific highway
safety program.
The Michigan State Police also made a number of suggestions
regarding the speed compliance criteria to be used to determine whether
States would be subject to penalties. For example, Michigan recommended
that the nationwide compliance threshold be revised to reflect the 85th
percentile speed, that no transfer should take place if a State's fatal
accident rate is below the national average, and that the agencies
consider whether a State's noncompliance rate contributed to the
State's fatality rate. Persons interested in reviewing a full
discussion regarding the speed compliance criteria that the agencies
decided to adopt, and the reasons for this decision, should read the
October 22, 1993 final rule.
Among the commenters responding to the issues raised by the SNPRM,
the Alaska Department of Public Safety, the California Highway Patrol,
the Indiana Department of Transportation, the Nevada Department of
Transportation and others opposed additional penalties for successive
year non-compliance. The Virginia State Police questioned the use of
the words ``improvement incentive'' to describe what the agencies had
proposed in the SNPRM. These commenters argued that the final rule had
already gone too far, and that additional sanctions were unnecessary
and inappropriate.
The National Association of Governors' Highway Safety
Representatives (NAGHSR) commented that the SNPRM was necessary to
prevent States from being terminally out of compliance, and Advocates
said the SNPRM didn't go far enough to penalize non-complying States.
The Indiana Department of Transportation, the Alaska Department of
Public Safety and the Virginia State Police commented that additional
funding sanctions would only serve to pit State road construction
departments against the various State safety agencies.
Amount of Transfer and Section 402 Apportionment
The Department of California Highway Patrol, NAGHSR, the New York
State Police and Advocates for Highway and Auto Safety had various
views of the Congressional intent concerning the amount of the transfer
to the section 402 apportionment being used as an additional penalty
for successive year NMSL non-compliance. The Nevada Department of
Transportation and others stated that a transfer of too much money
could overburden and render ineffective a State's highway safety
program.
Advocates proposed that the imposition of additional penalties
should not be limited to successive year non-compliance. They
recommended additional funds transfer penalties for any subsequent year
non-compliance, and suggested that the penalties should accumulate, up
to a maximum of ten percent of a State's Federal highway construction
funds apportioned under 23 U.S.C. Sec. 104(b). The California Highway
Patrol commented that the preamble to the SNPRM seemed to indicate that
the successive year sanctions would not accumulate, but expressed
concerned that the proposed regulatory language could be read to
provide for a penalty that exceeds two and one-half percent and
requested clarification on this issue.
As explained in the SNPRM, section 1029(c)(1)(A) of ISTEA provides
``* * * for the transfer of apportionments under section 104(b) of
Title 23, United States Code (other than paragraph (5)), if a State
fails to enforce speed limits in accordance with this section, [and the
implementing regulation].'' However, the legislation did not specify
the amount of the apportionments to be transferred.
The House bill had provided that the amount to be transferred would
range from one to five percent of the designated apportionments for the
first year of non-compliance and from two to ten percent for two or
more consecutive years of non-compliance. The amounts were to be
transferred to the highway safety grant programs authorized under 23
U.S.C. Sec. 402. The Senate bill did not provide for a transfer of
apportionments. In adopting the House's transfer penalty without the
House language pertaining to amounts, the conferees included the
following statement on page 328 of the report accompanying the
conference bill:
The Conference Substitute applies that same reprogramming
provision and Secretarial discretion with regard to the
percentage transferred as in the House bill.
In reviewing the range of transfers in the House bill for the
purpose of proposing a reasonable amount to be utilized by a non-
complying State, the agencies determined that one and one-half percent
of the designated apportionment for each State approximated the total
amount of its 402 program. The NPRM therefore proposed a one and one-
half percent transfer to the section 402 program, with the funds to be
used principally for speed limit enforcement. In the final rule the
agencies adopted the one and one-half percent transfer, but decided not
to specify the use of funds for speed limit enforcement or any other
specific highway safety program.
Since the final rule provided additional flexibility to States to
use the transferred funds for speed enforcement and other highway
safety activities, the agencies reconsidered their proposal to limit
the amount transferred, and requested comments in the SNPRM about
revising the regulation to provide that the amount transferred may
exceed the total Sec. 402 program fiscal year apportionment in years
successive to a year in which a State's compliance score is greater
than the maximum allowable compliance score. The agencies stated that
this kind of penalty transfer, which would permit an increase to as
high as two and one-half percent of the funds apportioned for highway
construction, would more closely follow the intent of the House bill
for States that fail to comply in successive years.
As proposed, the agencies have decided to impose an additional one
percent penalty on any State that is out of compliance and does not
make sufficient improvement to reduce its penalty in two or more
consecutive years. The agencies believe that limiting the additional
penalty to consecutive year non-compliance also closely follows
Congressional intent.
The maximum penalty that could be imposed would be two and one-half
percent of the funds apportioned to the State for Federal-aid highways
and highway safety construction programs under section 104(b) of Title
23, United States Code (other than paragraph (5)). The additional one
percent penalty would not accumulate from year to year.
Based on the arguments of some of the commenters regarding the
amount of money that may be meaningfully spent on highway safety in any
given year, the agencies have decided that the transferred funds in any
fiscal year shall not exceed one and one-half times the total section
402 apportionment for that fiscal year. Increasing the penalty beyond
this amount for subsequent year non-compliance could overwhelm any
State's section 402 budget.
For example, if the penalty were not subject to a limitation,
States like Connecticut and Wyoming could be subject to withholdings
that amount to as much as 2.2 and 2.3 times their section 402 budget,
respectively (based on fiscal year 1992 funding levels). By limiting
the amount of the penalty to one and one-half times the State's section
402 apportionment, the maximum subsequent year penalty for these States
would be 1.7 percent of highway construction fund apportionments and
1.6 percent, respectively (based on fiscal year 1992 funding levels).
In order to avoid penalty funding levels that cannot be effectively
spent on safety programs, the agencies have amended Sec. 1260.21(c) to
cap any subsequent year penalty transfer at one and one-half times the
total section 402 apportionment.
The SNPRM contained a typographical error in the last line of
Sec. 1260.19(d), which referred to ``(a)(1)'' instead of ``(c)(1).''
This notice corrects the error.
Proportionate Penalty Reduction
The SNPRM solicited comments on whether States should be provided
some relief from additional penalties if they show a specific amount of
improvement in their compliance score even though their compliance
score might not place them in a lower category. NAGHSR and the Illinois
Department of Transportation generally supported this concept. However,
other commenters did not express opinions about this approach. The
Department of California Highway Patrol proposed Federal-State
negotiations rather than a mathematical formula.
However, the agencies prefer a formula which avoids discretionary
decisions and clearly shows the States what the result of non-
compliance will be.
After considering an even more graduated penalty strategy, as
suggested by NAGHSR and the Illinois Department of Transportation, the
agencies have decided to reject the creation of additional categories,
particularly since the current range between penalty categories
approximates only 10 percent of the total score. The agencies have
neither received nor seen any evidence that additional graduations in
the categories would make the current scheme more fair, and further
mathematical complications are therefore unnecessary.
Regulatory Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures;
NHTSA and FHWA have considered the impact of this rulemaking action
under E.O. 12866 and the Department of Transportation's regulatory
policies and procedures. This rulemaking document was not reviewed by
the Office of Management and Budget under E.O. 12866, ``Regulatory
Planning and Review.'' This final action has been determined to be not
``significant'' under the Department of Transportation's regulatory
policies and procedures. The agencies prepared an addendum to the Final
Regulatory Evaluation (AFRE) in June, 1993, for the SNPRM, and made it
available in the public docket. A copy of the Final Regulatory
Evaluation (FRE) and the AFRE may be obtained by writing to Docket 93-
8, HCC-10, Federal Highway Administration, room 4232, 400 Seventh
Street SW., Washington, DC 20590.
The FRE indicates that at least three States (Connecticut,
Massachusetts and Wyoming) could be subject to the subsequent year
penalty if they are not able to improve their compliance scores during
subsequent years. The SNPRM proposed to establish a maximum penalty
transfer of 2.5 percent for a non-complying State in a subsequent year.
Under this final rule, any subsequent year penalty cannot exceed one
and one-half times the 23 U.S.C. 402 apportionment of a non-complying
State for that fiscal year. Based on fiscal year 1992 funding levels
and the final rule, the maximum subsequent year penalty for that year
would be 1.7 percent of highway construction fund apportionments for
Connecticut, 2.5 percent for Massachusetts, and 1.6 percent for
Wyoming. There would, of course, be no impact on complying States.
Regulatory Flexibility Act: NHTSA and FHWA have also considered the
impacts of this final rule under the Regulatory Flexibility Act. We
hereby certify that this rule will not have a significant economic
impact on a substantial number of small entities. The FRE concludes
that there is no significant impact on small businesses since the
portion of the highway construction funds going to noncomplying States
is not lost, but only transferred to highway safety programs.
Accordingly, the preparation of a Regulatory Flexibility Analysis is
unnecessary.
Paperwork Reduction Act: The requirement relating to this proposal,
that each State must submit speed data and related certification
information necessary to calculate its compliance score, is considered
to be an information collection requirement, as that term is defined by
the Office of Management and Budget (OMB) in 5 CFR part 1320.
Accordingly, this information collection requirement has been
previously submitted to and approved by OMB, pursuant to the provisions
of the Paperwork Reduction Act (44 U.S.C. 3501, et seq.). The
requirement has been approved through January 31, 1996, with the OMB
control number 2125-0027. This revision to the regulation contains no
additional information collection requirement.
National Environmental Policy Act: The agencies have analyzed this
action for the purpose of compliance with the National Environmental
Policy Act and have determined that it does not have a significant
effect on the human environment.
Executive Order 12612 (Federalism): This action has been analyzed
in accordance with Executive Order 12612, concerning Federalism. The
rule's provisions are likely to affect the allocations of States'
resources, the way they measure their success in traffic law
enforcement, relationships among State agencies, and the distribution
of Federal funds between States' highway construction and safety
programs. All of these effects may fairly be regarded as Federalism
impacts. However, the basic requirements of the rule (i.e., the
potential redistribution of Federal funds) are mandated by statute, so
the agencies do not have discretion to mitigate these impacts. The
agencies have carefully considered the comments of State agencies in
shaping the details of the rule.
Civil Justice Reform: This change to the regulation does not have
any preemptive or retroactive effect. It imposes no requirements on the
States, but rather encourages States to consider enacting and enforcing
legislation requiring speed limits and speed limit enforcement through
the potential redesignation of Federal highway construction funds to
safety programs. Any redesignation of funds would not take place until
FY 1997. If a non-complying State (1) submits data showing that its
highway speeds are below certain national levels, and (2) a
certification from the Governor reporting that the State is enforcing
the speed limits on public highways in accordance with 23 U.S.C. 154,
then it shall not be subject to the proposed subsequent year sanction
which redesignates an additional amount of funds to the State's
apportionment of safety grant programs. The transfer amount for first
year non-compliance could be as high as two and one-half percent of a
State's apportionment for Federal-aid highways and highway safety
construction programs. However, any subsequent year penalty cannot
exceed one and one-half times the 23 U.S.C. 402 apportionment of a non-
complying State for that fiscal year. The authorizing legislation for
the proposed rule 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.
List of Subjects in 23 CFR Part 1260
Grant programs--Transportation, Highways and roads, Motor vehicles,
Reporting and recordkeeping requirements, Speed limit, Traffic
regulations.
(Catalog of Federal Domestic Assistance Program Number 20.205,
Highway Planning and Construction. The regulations implementing
Executive Order 12372 regarding intergovernmental consultation on
Federal programs and activities apply to this program)
PART 1260--CERTIFICATION OF SPEED LIMIT ENFORCEMENT
In consideration of the foregoing, 23 CFR 1260 is amended to read
as follows:
1. The authority citation for part 1260 continues to read as
follows:
Authority: 23 U.S.C. 118, 141, 154, 315 and delegations of
authority at 49 CFR 1.48 and 1.50.
2. Paragraph (d) is added to Sec. 1260.19 as follows:
Sec. 1260.19 Effect of failure to certify or to meet compliance
standards.
* * * * *
(d) An additional one percent of the funds apportioned to the State
under 23 U.S.C. 104(b)(1), 104(b)(2), 104(b)(3), 104(b)(4) and
104(b)(6) shall be transferred pursuant to subsection (b) of this
section to the State's highway safety grant program fund under 23
U.S.C. 402 for the fiscal year subsequent to the fiscal year in which
the State submitted its compliance score if the Secretary determines
that the State's compliance score calculated pursuant to
Sec. 1260.15(d) is in the same or a higher penalty category as the
State's compliance score submitted in the prior fiscal year, as
provided by paragraphs (c) (1) through (4) of this section.
* * * * *
3. Section 1260.21 is amended by revising paragraph (c) as follows:
Sec. 1260.21 Penalty reduction and notification of noncompliance.
* * * * *
(c) The State shall expend any transferred funds pursuant to
Secs. 1260.19(b) and 1260.19(d) for section 402 programs within that
State. In no instance shall the transfer under Sec. 1260.19(b) exceed
the total section 402 apportionment for that fiscal year, prior to any
penalty reduction, and in no instance shall the total transferred funds
under Secs. 1260.19(b) and 1260.19(d) exceed one and one-half times the
total section 402 apportionment for any fiscal year.
* * * * *
Issued on: June 9, 1994.
Rodney E. Slater,
Administrator, Federal Highway Administration.
Christopher A. Hart,
Deputy Administrator, National Highway Traffic Safety Administration.
[FR Doc. 94-14463 Filed 6-14-94; 8:45 am]
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