[Federal Register Volume 64, Number 144 (Wednesday, July 28, 1999)]
[Rules and Regulations]
[Pages 40757-40764]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19321]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
Federal Highway Administration
23 CFR Parts 1200 and 1205
[Docket No. NHTSA-99-6011]
RIN 2127-AH53
Uniform Procedures for State Highway Safety Programs
AGENCY: National Highway Traffic Safety Administration and Federal
Highway Administration, DOT.
ACTION: Final rule.
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SUMMARY: This final rule announces that amendments to the regulation
establishing uniform procedures for
[[Page 40758]]
State highway safety programs, published in an interim final rule, will
remain in effect, with minor changes for clarification in response to
comments. The amendments implemented the provisions of a two-year pilot
highway safety program, providing a more flexible performance-based
system for States to follow in conducting their highway safety
programs.
EFFECTIVE DATE: August 27, 1999.
FOR FURTHER INFORMATION CONTACT: In NHTSA, Marlene Markison, Office of
State and Community Services, 202-366-2121; John Donaldson, Office of
the Chief Counsel, 202-366-1834. In FHWA, Daniel Hartman, Office of
Highway Safety, 202-366-2131; Raymond Cuprill, Office of the Chief
Counsel, 202-366-0834.
SUPPLEMENTARY INFORMATION:
A. Background
On June 26, 1997, the National Highway Traffic Safety
Administration (``NHTSA'') and the Federal Highway Administration
(``FHWA'') (``the agencies'') published an interim final rule (62 FR
34397) establishing new procedures governing the implementation of
State highway safety programs conducted under the authority of the
Highway Safety Act of 1966 (23 U.S.C. 401 et seq.). The new procedures
changed the submission and approval requirements for State highway
safety plans in the regulation at 23 CFR part 1200, Uniform Procedures
for State Highway Safety Programs, and simplified certain funding
requirements in the regulation at 23 CFR part 1205, Highway Safety
Programs; Determinations of Effectiveness.
Under the provisions of the interim final rule, States assumed a
new role in the planning and direction of their highway safety
programs. In lieu of the earlier regulatory requirement that States
submit comprehensive documents for Federal review and approval, States
were now charged with setting their own highway safety goals,
accompanied by performance measures to chart progress. These new
procedures were based on almost two years of successful experience with
a pilot highway safety program conducted by the agencies during fiscal
years 1996 and 1997. The interim final rule incorporated most of the
pilot program's provisions into its requirements.
The agencies requested comments on the interim final rule from all
interested parties, and provided a 45-day comment period. Thereafter,
because Congress was considering various changes to the Section 402
program in the course of reauthorizing NHTSA and FHWA programs, the
agencies decided to delay responding to comments until after Congress
had completed the reauthorization process. In today's notice, we
respond to the comments received, and issue a final rule.
B. Statutory Requirements
The Section 402 program is authorized under the Highway Safety Act
of 1966 (23 U.S.C. 401 et seq.). It is a formula grant program that was
established to improve highway safety in the States. As a condition of
the grant, the Act provides that the States must meet certain
requirements contained in 23 U.S.C. 402.
Section 402(a) requires each State to have a highway safety
program, approved by the Secretary of Transportation, which is designed
to reduce traffic crashes and the deaths, injuries, and property damage
resulting from those crashes. Section 402(b) sets forth the minimum
requirements with which each State's highway safety program must
comply. For example, the Secretary may not approve a program unless it
provides that the Governor of the State is responsible for its
administration through a State highway safety agency which has adequate
powers and is suitably equipped and organized to carry out the program
to the satisfaction of the Secretary. Additionally, the program must
authorize political subdivisions of the State to carry out local
highway safety programs and provide a certain minimum level of funding
for these local programs each fiscal year. The enforcement of these and
other continuing requirements is entrusted to the Secretary and, by
delegation, to the agencies.
When it was originally enacted in 1966, the Highway Safety Act
required the agencies to establish uniform standards for State highway
safety programs to assist States and local communities in implementing
their highway safety programs. Eighteen such standards were established
and, during the early years, the Section 402 program was directed
principally toward achieving State and local compliance with these
standards. Over time, State highway safety programs matured and, in
1976, the Highway Safety Act was amended to provide for more flexible
implementation of the program. States were no longer required to comply
with every uniform standard or with each element of every uniform
standard. As a result, the standards became more like guidelines for
use by the States, and management of the program shifted from enforcing
standards to using the standards as a framework for problem
identification, countermeasure development, and program evaluation. In
1987, Section 402 of the Highway Safety Act was amended, formally
changing the standards to guidelines.
Another amendment to the Highway Safety Act required the Secretary
to determine, through a rulemaking process, those programs ``most
effective'' in reducing crashes, injuries, and deaths, taking into
account ``consideration of the States having a major role in
establishing (such) programs.'' The Secretary was authorized to revise
the rule from time to time. In accordance with this provision, the
agencies have identified, over time, nine such programs, the ``National
Priority Program areas'' (see discussion under Section C.2, below).
Until recently, the Act provided that only those programs
established under the rule as ``most effective'' in reducing crashes,
injuries and deaths (i.e., the National Priority Program areas) would
be eligible for Federal financial assistance under the Section 402
program. However, the Transportation Equity Act for the 21st Century
(Pub. L. 105-178) (TEA-21), enacted June 9, 1998, amended those
provisions. The new requirement allows for periodic discretionary
rulemaking to identify programs that are ``highly effective'' in
reducing crashes, injuries, and deaths, and requires only that States
``consider'' these highly effective programs when developing their
highway safety programs.
C. Regulations Prior to the Interim Final Rule
In recent years, the agencies have administered the Section 402
program in accordance with implementing regulations, the Uniform
Procedures for State Highway Safety Programs (23 CFR part 1200) (``Part
1200'') and Highway Safety Programs; Determinations of Effectiveness
(23 CFR part 1205) (``Part 1205''). Part 1200 sets forth requirements
concerning submission and approval of State highway safety plans,
apportionment and obligation of Federal funds, and financial accounting
and program administration. Part 1205 identifies the National Priority
Program areas and provides for the funding of program areas.
1. Part 1200
Part 1200, portions of which were amended by the interim final
rule, contained detailed procedures governing the content and Federal
approval of a ``Highway Safety Plan,'' to be submitted each fiscal year
by the States. In particular, prior to its amendment, the regulation
required
[[Page 40759]]
each State's highway safety plan to contain a ``problem identification
summary,'' highlighting highway safety problems in the State,
describing countermeasures planned to address those problems, and
providing supporting statistical crash data. Additionally, in the
highway safety plan, the State was required to describe and justify
program areas to be funded, discuss planning and administration and
training needs, and provide certain certifications and financial
documentation.
Part 1200 required Federal approval for proposed expenditures
within program areas, both under the State's initially submitted
Highway Safety Plan and subsequently for any proposed changes in
expenditures exceeding ten percent of the total amount in a given
program area. Federal approval was also required, on a year-by-year
basis, if a State sought to continue a NHTSA project beyond three
years. Such approval was conditioned on a showing that the project had
demonstrated great merit or the potential for significant long-range
benefits, and was subject to increased cost assumption by the State.
The regulation provided the agencies with broad discretion to approve,
conditionally approve, or disapprove a highway safety plan or any
portion of the document, and required the States to submit a
comprehensive and detailed annual evaluation report.
2. Part 1205
Part 1205 lists each highway safety program area that the agencies
have determined, in accordance with the Highway Safety Act, to be most
effective in reducing crashes, injuries, and deaths. The agencies have,
through a series of rulemaking actions over the years, identified these
program areas as ``National Priority Program Areas.'' There are
currently nine National Priority Program Areas: Alcohol and Other Drug
Countermeasures; Police Traffic Services; Occupant Protection; Traffic
Records; Emergency Medical Services; Motorcycle Safety; Roadway Safety;
Pedestrian and Bicycle Safety; and Speed Control.
Prior to its amendment by the interim final rule, part 1205
provided for expedited funding approval of programs developed in any of
the National Priority Program Areas. Part 1205 provided that programs
developed under other program areas could also be funded, but they were
subject to a more detailed approval process. As further described under
Section E, below, the amendments that the interim final rule made to
part 1205 provided States with more flexibility with regard to their
ability to fund these latter programs.
D. The Pilot Program
In the years since the original enactment of Section 402, States
have developed the expertise necessary to conduct effective highway
safety programs. Just as Congress earlier recognized the desirability
of changing the mandatory standards to more flexible guidelines, the
agencies recognized that the time was right to provide the States with
added flexibility to set their own goals, define their own performance
measures, and determine the best means of accomplishing their goals,
subject to the existing statutory parameters requiring overall program
approval.
Consistent with efforts to relieve burdens on the States under the
President's regulatory reform initiative, the agencies took the first
step in providing more flexibility for the States by establishing a
pilot program in fiscal years 1996 and 1997 for highway safety programs
conducted under section 402. The pilot program was announced in the
Federal Register on September 12, 1995 (60 FR 47418) for fiscal year
1996 and on September 6, 1996 (61 FR 46895) for fiscal year 1997.
1. Procedures
The pilot program waived the requirement for State submission and
Federal approval of the Highway Safety Plan required under then-
existing part 1200 for those States that chose to participate, and
instead provided for a benchmarking process by which the States set
their own highway safety goals and performance measures. Under the
benchmarking process, participating States were required to submit a
planning document and a benchmark report, rather than the previously
required highway safety plan. The planning document, which described
how Federal funds would be used, consistent with the guidelines,
priority areas, and other requirements of Section 402, was required to
be approved by the Governor's Representative for Highway Safety.
The States were required to submit the benchmark report to the
agencies for approval by August 1 prior to the fiscal year for which
the highway safety program was to be conducted. The benchmark report
was required to contain three components: a Process Description;
Performance Goals; and a Highway Safety Program Cost Summary. Under the
Process Description component, States were required to describe the
processes used to identify highway safety problems, establish
performance goals, and develop the programs and projects in their
plans. Under the Performance Goals component, States were required to
identify highway safety performance goals (developed through a problem
identification process) and to identify performance measures to be used
to track progress toward each goal. Under the Highway Safety Program
Cost Summary component, States submitted HS Form 217, a financial
accounting form that has been a longstanding requirement under part
1200.
The focus of the Federal review and approval process under the
pilot program shifted away from a review of the substantive details of
the program, on a project-by-project basis, as required under then-
existing part 1200. Instead, the process focused on verification that
the State had committed itself, through a performance-based planning
document approved by the Governor's Representative for Highway Safety
and a benchmark report, to a highway safety program that targeted
identified State highway safety concerns. The agencies waived the
requirement under then-existing part 1200 that States seek approval for
changes in expenditures exceeding ten percent in a given program area.
Under the pilot program, the requirements governing the annual
evaluation report were changed to accommodate the shift to a
performance-based process. States were required to report on their
progress toward meeting goals, using performance measures identified in
the benchmark report, and the steps they took toward meeting goals.
States were also required to describe State and community projects
funded during the year.
In other respects, the pilot program followed the requirements of
then-existing part 1200 without change. Provisions concerning the
submission of certifications and assurances, the apportionment and
obligation of Federal funds, financial accounting (including submission
of vouchers, program income, and the like), and the closeout of each
year's program continued to apply to the pilot program.
2. Experience Under the Pilot Program
Over the two-year period during which the pilot program was in
place prior to issuance of the interim final rule, it received
increasing support from States. Sixteen States participated in the
pilot program during fiscal year 1996, and 41 States, the District of
Columbia, Puerto Rico, the Virgin Islands, and the Commonwealth of the
Northern Mariana Islands participated during fiscal year
[[Page 40760]]
1997. Most participating States expressed enthusiasm about the goal-
setting process used in the pilot program, and felt a greater sense of
``ownership'' of their highway safety programs under the pilot
procedures. Prior to their participation in the pilot program, many of
these States already had adopted performance measures in their State
budgeting and management processes, which eased the transition for
these States to a performance-based process under the pilot program.
The majority of participating States reported that the pilot program
procedures resulted in reduced Federally-imposed burdens and increased
State flexibility in administering their highway safety programs.
In December 1996, the 16 States that participated in the pilot
program during its initial year submitted their annual reports
regarding their highway safety accomplishments under the pilot program.
Overall, the reports revealed improvements in data systems, goal-
setting, and project selection. They also reported reductions in costs
and time expended for the administration of the program, and a
broadening of highway safety partnerships. In addition, the reports
revealed that pilot States were making steady progress toward achieving
established goals. Experience during that initial year confirmed that
the pilot procedures resulted in the implementation of successful
highway safety programs, consistent with national highway safety goals
and Federal goals for regulatory reform, streamlining procedures, and
improvements in performance.
In January 1997, during the second year of the pilot program, the
agencies held a meeting that was attended by representatives of all
States and territories. State representatives identified concerns and
offered suggestions in an effort to make further improvements in the
pilot program procedures. States generally expressed a desire for more
flexibility, such as by extending the due date for submission of
application documents, permitting a multi-year planning process, and
accommodating short and long range goals in the goal-setting process.
States generally agreed that, if progress toward meeting goals did not
occur in a State, both State and Federal officials should cooperate to
develop an improvement plan for the State.
E. Interim Final Rule
Based on the success of the pilot program during its first two
years of operation, the agencies published an interim final rule on
June 26, 1997, revising the regulations governing State highway safety
programs to implement the pilot procedures. The interim final rule also
addressed issues raised during the January 1997 meeting. It extended
the due date for submission of application documents from August 1 to
September 1 and accommodated the States' desire for flexibility to plan
and set goals covering time periods that best meet State needs. It also
provided for a joint effort by Federal and State officials to develop
an improvement plan, where a State fails to progress to meet goals.
The interim final rule replaced the previously-existing procedures
under part 1200 governing the preparation, submission, review, and
approval of State Highway Safety Plans (discussed generally under
Section C.1, above), with new procedures modeled after those used in
the pilot program. The interim final rule required the States to submit
information detailing their highway safety programs in the same format
as required under the pilot program, but made some adjustments to the
pilot program procedures, as noted above.
In addition, the interim final rule changed some of the terminology
used in the pilot program. The more descriptive terms ``performance
plan'' and ``highway safety plan'' replaced the terms ``benchmark
report'' and ``planning document,'' which were used in the pilot
program to describe State highway safety goals and planned activities.
However, the functions of these documents remained essentially
unchanged from those existing under the pilot program, as described
under Section D, above. In the preamble to the interim final rule, the
agencies explained that States were free to prepare their Performance
Plan and Highway Safety Plan as comprehensive documents which also
included goals and activities for highway safety programs other than
the Section 402 program. The agencies explained that, in such cases,
the Highway Safety Plan should identify those programs or activities
funded from other sources in a separate section or should identify them
clearly in some other manner.
The interim final rule changed the nature of the Federal approval
process, consistent with the procedures used during the pilot program.
Instead of approving a highway safety plan based on a project-by-
project justification, the interim final rule provided for review of
the State's highway safety program as a whole, to verify that the State
had developed a goal-oriented highway safety program that was approved
by the Governor's Representative for Highway Safety, and that
identified the State's highway safety problems, established goals and
performance measures to effect improvements in highway safety, and
described activities designed to achieve those goals.
The interim final rule left unchanged the requirement that States
must submit an annual report. However, the contents of the annual
report changed from those required under the previously-existing part
1200. Under the interim final rule, the States were required to
describe their progress in meeting State highway safety goals, using
performance measures identified in the Performance Plan, and the
projects and activities funded during the fiscal year. They also were
required to include in these reports an explanation of how these
projects and activities contributed to meeting the State's highway
safety goals. No substantive changes were made to provisions relating
to the apportionment and obligation of Federal funds, financial
accounting, and the like.
Finally, the interim final rule made conforming changes to the
funding procedures for National Priority Program Areas and other
program areas contained in Part 1205. These changes allowed States to
pursue activities in program areas identified either by the agencies as
National Priority Program areas or by the States as State priorities.
In pursuing activities under the latter category, States were given
more flexibility in the processes they could follow to identify program
areas that were State priorities, and the level of Federal oversight
was reduced.
A more detailed discussion of the changes appears in the preamble
to the interim final rule (62 FR 34397).
F. Comments
The interim final rule solicited comments from all interested
parties, and noted that the agencies would respond to all comments and,
if appropriate, amend the provisions of the rule. The agencies received
comments from State agencies in Florida, Maryland, Michigan, and
Washington and from two organizations, the National Association of
Governors' Highway Safety Representatives and Advocates for Highway and
Auto Safety.
1. In General
Many commenters expressed general approval of the interim final
rule. In the State of Washington, the Traffic Safety Commission and the
Department of Transportation both supported the interim final rule
without change. The Traffic Safety Commission lauded the ``change in
attitude and method,'' adding that it was certain to improve the
already good working relationship
[[Page 40761]]
between NHTSA and the States. The Michigan Office of Highway Safety
Planning (Michigan) identified the flexibility for quick response to
changing issues, the outcome-based evaluation (which it noted was
already being performed at the State level), the opportunity to offer
programming flexibility to local communities, and the reduction in
paperwork as welcome results of the interim final rule. The National
Association of Governors' Highway Safety Representatives (NAGHSR)
expressed strong support for the rule, commending the agencies for
reflecting State concerns and codifying the flexibility desired by
States in the interim final rule. NAGHSR was especially supportive of
the change in submission date for the State's application documents
from August 1 to September 1 of the fiscal year, stating that this
would provide the States with time to obtain additional input from
their safety constituencies and to refine their performance plans.
2. Specific Issues
Commenters raised a number of specific issues, all related to the
interim final rule's changes to part 1200. The agencies received no
comments concerning the interim final rule's changes to part 1205.
a. Federal Approval Procedures
The Florida Department of Transportation (Florida) sought
clarification of Federal approval procedures. Noting the discussion
that Federal approval of the annual Highway Safety Plan was no longer
required, Florida asked why the interim final rule contained references
to an ``Approving Official'' (Sec. 1200.3), ``delayed approval''
(Sec. 1200.12) if due dates are not met, and a ``letter of Approval''
(Sec. 1200.13).
The statute under which the Section 402 program operates requires
each State to have a highway safety program ``approved by the Secretary
(of Transportation),'' and further specifies certain conditions under
which the Secretary may not approve a program. Consequently, some
approvals continue to be required but, as the agencies explained in the
preamble to the interim final rule, the nature of the Federal approval
process changed. The interim final rule provided that the contents of
the Highway Safety Plan no longer need to be approved on a project-by-
project basis. Rather, the State's highway safety program is to be
reviewed as a whole, to verify that the State has developed a goal-
oriented highway safety program that is approved by the Governor's
Representative for Highway Safety, and that identifies the State's
highway safety problems, establishes goals and performance measures to
effect improvements in highway safety, and describes activities
designed to achieve those goals. The agencies believe that this new
program level approval process was reflected in the interim final rule
without ambiguity. Consequently, the agencies have made no change to
the rule in response to this comment.
b. Financial Reporting
To effect a further reduction in paperwork burdens on State highway
safety offices, Michigan recommended that changes in the allocation of
funds, under Sec. 1200.22, be reported on a quarterly basis rather than
within 30 days of the change.
In the interim final rule, the agencies took the significant step
of removing the requirement for prior approval of changes during
program implementation. The agencies believe that removing the prior
approval requirement, coupled with retention of the monthly reporting
requirement, strikes the appropriate balance between alleviating
burdens to the States and retaining the agencies' ability to monitor,
on an ongoing basis, the expenditure of Federal funds. Consequently,
the agencies have not adopted the suggestion for quarterly reporting of
changes.
Florida noted that the interim final rule prescribes the use of HS
Form 217 for financial reporting, despite the transition by some States
(including Florida) to paperless electronic reporting through NHTSA's
Grant Tracking System. Florida asked which format (i.e., hard copy or
electronic) was intended by the interim final rule.
For many States, use of the electronic Grant Tracking System has
replaced the use of paper forms to report grant finances. However, even
with the electronic system, there is an ``HS 217'' screen for recording
the information concerning allocations of federal and State funds to
specific program areas, which is then transmitted electronically to
NHTSA. This form, either in its electronic or hard copy format, would
meet the requirements of the interim final rule. To clarify this point,
the agencies have included language in appropriate places in the rule
explaining that either HS Form 217 or its electronic equivalent is
acceptable.
c. Goal-Setting and Program Evaluation
Advocates for Highway and Auto Safety (Advocates) submitted lengthy
comments, expressing the view that the interim final rule ``devolves
all essential aspects of the 402 program to state authorities.''
According to Advocates, this more flexible approach will result in the
selection of highly subjective safety program goals, the inability to
assess cost-effectiveness properly, and the submission of State reports
based on ``anecdotal experience and generalized, amorphous
information.'' Advocates questioned whether this approach satisfies the
statutory requirement that State highway safety programs be based on
``uniform guidelines [which] shall be expressed in terms of performance
criteria.''
In support of this concern, Advocates cited the report,
``Evaluation of the section 402 Pilot Process, NHTSA (May, 1997)'' and
the separate reports submitted by the 16 original pilot States.
According to Advocates, the NHTSA report elaborates only on positive
information drawn from the State reports, ignoring the deficiencies.
Among the deficiencies Advocates identified in the State reports are
the lack of substantive information about goals and accomplishments;
and the lack of data, or reliance on old or subjective data, or
brushing aside of contradictory data in efforts to demonstrate progress
toward meeting State goals. Advocates asserted that some State reports
are ``in essence, public relations documents,'' and concluded that if
this continues, most State reports will be of no use in assessing the
status of the individual State programs as well as the national 402
program as a whole. Advocates also asserted that, with a unique goal-
selection process for each State, States might select easily achieved
goals at the expense of safety issues that need to be addressed.
Advocates questioned whether the new approach met the statutory goal of
improving highway safety or provided a credible means for evaluating
the effectiveness of the Section 402 program.
The agencies have described, above, the evolution of the Highway
Safety Act of 1966, from a framework of enforcing standards to using
standards for problem identification, countermeasure development, and
program evaluation, and ultimately to using guidelines as an aid in
fashioning highway safety programs. We have also noted, above, that
since publication of the interim final rule, Congress further amended
the Highway Safety Act, allowing the States to consider highly
effective programs that may from time to time be identified in a rule
by the agency, in lieu of requiring adherence to only those programs
specifically designated as most effective in a rule by the agency. In
short, the statutory framework has moved away from requiring a
centralized, uniform program, with each
[[Page 40762]]
State pursuing a set of common goals. Consequently, we do not agree
with Advocates' criticism that a goal selection process that is unique
to each State overlooks important safety issues. Rather, we believe
that this new process provides States with the additional flexibility
and ability to tailor their programs that was intended by the Congress.
The agencies agree with Advocates that there was variability in the
quality and usefulness of data among the 16 initial annual reports
submitted by the States under the pilot process. This is to be expected
under any new process. However, for the first time, reports began to
address performance goals in highway safety and measures of progress in
reaching those goals. Under the previous procedures, this important
goal-setting and tracking information was largely unavailable. The
agencies fully expect that the process, the data, and the reports will
improve over time (although there will always be a time-lag in the
data). We believe that the annual reports under the new process will
provide an effective means of evaluating progress under the Section 402
program, as more experience is developed. Should this not materialize,
the agencies will consider necessary changes to the reporting process
in a future action. The agencies do not believe that any change to the
rule is necessary at this time to address this comment.
The agencies also do not believe that the concern that States may
select only goals that are easy to achieve, overlooking other important
areas of highway safety, is warranted. In the course of establishing
goals and performance measures, the interim final rule requires a State
to describe in its Performance Plan the problem identification process
followed and the participants in that process. In addition, the State
must issue a public report (the Annual Report) each year. With this
public process, we do not believe that States will address only easily-
achieved goals. A more likely limitation on the goal-setting process
will be the initial absence of effective performance measures and data
for certain problem areas. This limitation should be mitigated over
time by improvement of the performance-based management process and the
data upon which it depends. Consequently, we have made no change to the
rule in response to this comment.
Florida questioned the value of the Annual Report (Sec. 1200.33).
According to Florida, the requirement for an Annual Report (as well as
the requirement for an Improvement Plan, discussed in the next section)
assumes that projects from a Highway Safety Plan can be evaluated
against the State's goals within three months of their completion,
whereas data to support an evaluation are actually not likely to be
available for a year or more after project completion. Florida also
stated that it is unclear from Sec. 1200.10 (Application) whether the
intent is for the State to have short-term or longer-term safety goals
for the program. Florida noted that short term goals exhibit data
availability problems.
The agencies agree with Florida that many projects will not produce
measurable results within the three-month period between the end of the
fiscal year and the due date for submission of the Annual Report.
However, the performance-based process implemented by the interim final
rule recognizes that the Section 402 program is ongoing, as are the
State highway safety programs that it supports. These State programs do
not begin and end with the fiscal year, even if certain projects do.
Progress toward meeting goals in major highway safety program areas
will occur across fiscal years and be attributable to more than one
project or activity. Therefore, in the Annual Report, States should
report the most recent data available concerning each of their
identified performance measures and describe the projects that have
contributed to that progress. The agencies have made changes to the
``Annual Report'' section of the rule to clarify these points. With
respect to Florida's concern about Sec. 1200.10, that section specifies
neither short-term nor long-term goals as requirements in the goal-
setting process. Either approach or a mix of both approaches is
acceptable, as deemed necessary or appropriate by the State. In all
cases, the State should include the most recent and best available data
in the annual report.
d. Improvement Plans
Two commenters expressed opposing views about the value of
Improvement Plans. Florida recommended elimination of the interim final
rule's requirement for an Improvement Plan where a State's broad goals
are not met, reasoning that Federal highway safety funds provide only
``seed money'' for a few projects, and should not be assumed to have an
``immediate quantifiable effect on a statewide problem.'' In contrast,
NAGHSR supported the requirement for joint development of an
Improvement Plan by Federal and State officials where a State has not
made sufficient progress to meet goals (Sec. 1200.25). NAGHSR believed
this approach to be a ``reasonable and prudent one'' if a State fails
to make progress or does not act in good faith in implementing its
plan.
The agencies agree with NAGHSR about the value of Improvement
Plans. Florida's recommendation to eliminate the requirement stems from
concerns about the lack of contemporaneous data to track progress. The
agencies are mindful of these data limitations, and intend to exercise
appropriate restraint in the use of Improvement Plans. For example, it
is not the agencies' intent to require an Improvement Plan if, in a
single year, some of a State's projects or activities do not appear to
``have an immediate quantifiable effect on a statewide problem,'' based
on available data. Rather, an improvement plan would be employed if a
State demonstrates a pattern that indicates little or no progress
toward meeting goals, taking account of all relevant circumstances. The
agencies believe that this approach strikes an appropriate balance in
ensuring that the expenditure of Section 402 funds ultimately results
in measurable traffic safety benefits, and that no changes to the rule
are necessary.
e. Use of the Term ``Highway Safety Plan'
The Office of Traffic Safety of the Maryland State Highway
Administration (Maryland) objected to the agencies' ``preemption'' of
the title ``Highway Safety Plan'' for the program document required
under the Section 402 program. Maryland explained that States have
comprehensive, multi-year plans that set forth goals and strategies for
addressing highway traffic safety problems, and that these State plans
typically are called Highway Safety Plans or Strategic Highway Safety
Plans. In Maryland's view, the Federally-prescribed Highway Safety Plan
under the interim final rule cannot serve as a State's comprehensive
Highway Safety Plan because it does not include goals, objectives,
strategies, and performance measures and it covers only projects and
activities that are supported by Section 402 funds or other Federal
funds. Maryland recommends that the interim final rule be amended to
redesignate the Highway Safety Plan as the ``Implementation Plan.''
In contrast, NAGHSR supported the name changes for the application
documents (i.e., from ``Benchmark Report'' and ``Planning Document'' to
``Performance Plan'' and ``Highway Safety Plan'') , finding them to be
less confusing.
As noted in the preamble to the interim final rule, the familiar
term ``Highway Safety Plan'' was used for convenience, and many of
those most
[[Page 40763]]
involved in the Section 402 program continued to use it even during the
pilot program. The agencies further explained that States were free to
prepare both their Performance Plan and Highway Safety Plan as
comprehensive documents that include goals and activities for highway
safety programs other than the Section 402 Program. (In fact, since the
enactment of the Transportation Equity Act for the 21st Century, Pub.
L. 105-178, implementing regulations for a number of new highway safety
grant programs have included provisions requiring States to document
activities related to these other grant programs in the Highway Safety
Plan.) Moreover, the interim final rule does not preclude a State from
combining the elements of the Performance Plan and the Highway Safety
Plan into one document called a Highway Safety Plan, as long as the
substantive content requirements of the interim final rule are met. The
interim final rule also does not restrict the amount of information or
detail included in the Highway Safety Plan, and does not preclude the
identification in the plan of projects or activities that do not
receive Federal funds. The only requirement is that the source of
funding for other projects or activities be identified, so that the
agencies are able to distinguish clearly the programs for which Section
402 funds are being sought. The agencies have added language to the
rule clarifying that this is permissible. Finally, a State may, for its
own administrative purposes, choose to call the Highway Safety Plan
required under this rule by another name, so long as the document
satisfies the requirements of the rule. In view of the flexibility
afforded by this process, the agencies have made no other change to the
rule in response to these comments.
f. Effect of Interim Final Rule
Florida requested clarification of the discussion in the preamble
to the interim final rule, which described the material as ``guidance''
for 1998 highway safety plans, but noted that ``this regulation is
fully in effect and binding upon its effective date.'' Florida believed
that these statements led to confusion about the status of the interim
final rule.
The Section 402 program is operated in accordance with published
regulations, so that all States will have a clear understanding of the
procedures and requirements that accompany the grant funds. When
referring to the procedures of the interim final rule as providing
``guidance'' to the States, the agencies did not intend to convey that
these procedures were optional or otherwise not fully in effect. As
noted in the preamble to the interim final rule, that document (and
hence the provisions contained therein) became effective and binding
upon publication.
Advocates objected to the publication of an interim final rule to
implement the new process, arguing that dispensing with prior public
notice and comment is permissible only under the most extreme
circumstances, and that no such circumstances existed here.
The agencies previously explained the need to provide prompt
guidance to the States about impending grant procedures. We explained
that States needed this information well in advance of the start of the
fiscal year to which the highway safety program applied in order to
comply with application procedures and to allow sufficient time for
program planning activities. For these reasons, the agencies concluded
that there was good cause for finding that providing notice and comment
in connection with this action was impracticable, unnecessary, and
contrary to the public interest. The agencies noted that the amendments
made by the interim final rule were consistent with the provisions of a
pilot program whose procedures were already known to the States. During
the two years covered by the pilot programs, these procedures were also
announced to the public, in two Federal Register notices (60 FR 47418
and 61 FR 46895). The agencies believe that the decision to issue an
interim final rule was appropriate and in the public interest.
G. Regulatory Analyses and Notices
Executive Order 12612 (Federalism)
We have analyzed this action in accordance with the principles and
criteria contained in Executive Order 12612, and have determined that
it does not have sufficient Federalism implications to warrant the
preparation of a Federalism assessment. This action increases the
flexibility of the States by implementing a performance-based process
under which the States bear the responsibility for setting highway
safety goals, in accordance with their individual needs.
Executive Order 12778 (Civil Justice Reform)
This rule does not have any preemptive or retroactive effect. It
merely revises existing requirements imposed on States to afford States
more flexibility in implementing a grant program. The enabling
legislation 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 pursue other
administrative proceedings before they may file suit in court.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
We have determined that this action is not a significant regulatory
action within the meaning of Executive Order 12866 or significant
within the meaning of Department of Transportation Regulatory Policies
and Procedures. This rule does not impose any additional burden on the
public, but rather reduces burdens and improves the flexibility
afforded to States in implementing highway safety programs. This action
does not affect the level of funding available in the highway safety
program. Accordingly, neither a Regulatory Impact Analysis nor a full
Regulatory Evaluation is required.
Executive Order 13045 (Protection of Children From Environmental Health
Risks and Safety Risks)
This rule is not subject to Executive Order 13045 because it is not
economically significant as defined in Executive Order 12866 and it
does not concern an environmental, health, or safety risk that may have
a disproportionate effect on children.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), we have evaluated the effects of this action on small entities.
We hereby certify that this action will not have a significant economic
impact on a substantial number of small entities. States are the
recipients of any funds awarded under the Section 402 program.
Accordingly, the preparation of a Regulatory Flexibility Analysis is
unnecessary.
National Technology Transfer and Advancement Act
The National Technology Transfer and Advancement Act of 1995 (15
U.S.C. 272) directs us to use voluntary consensus standards (i.e.,
technical standard concerning materials specifications, test methods,
sampling procedures, and business practices) in regulatory activities
unless doing so would be inconsistent with applicable law or otherwise
impracticable. We have determined that no voluntary consensus standards
apply to this action.
Unfunded Mandates Reform Act
This action does not impose any unfunded mandates under the
Unfunded Mandates Reform Act of
[[Page 40764]]
1995. It would not result in costs of $100 million or more to either
State, local, or tribal governments, in the aggregate, or to the
private sector. Accordingly, neither a written assessment of its costs,
benefits, and other effects nor a consideration of regulatory
alternatives is required.
Paperwork Reduction Act
The requirement relating to this action, that each State must
submit certain documents to receive Section 402 grant funds, is
considered to be an information collection requirement, as that term is
defined by OMB. 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 September 30, 2001; OMB Control
No. 2127-0003.
National Environmental Policy Act
We have reviewed this action for the purpose of compliance with the
National Environmental Policy Act (42 U.S.C. 4321 et seq.), and have
determined that it will not have a significant effect on the human
environment.
Regulation Identifier Number
The Department of Transportation assigns a regulation identifier
number (RIN) 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. You may
use the RIN contained in the heading at the beginning of this document
to find this action in the Unified Agenda.
List of Subjects in 23 CFR Parts 1200 and 1205
Grant programs--transportation, Highway safety.
Accordingly, the interim final rule amending part 1205 of title 23
of the Code of Federal Regulations, published at 62 FR 34397, June 26,
1997, is adopted as final without change and the interim final rule
amending part 1200 of title 23 of the Code of Federal Regulations,
published at 62 FR 34397, June 26, 1997, is adopted as final with the
following changes:
1. The authority citation for part 1200 continues to read as
follows:
Authority: 23 U.S.C. 402; delegations of authority at 49 CFR
1.48 and 1.50.
2. In Sec. 1200.10, paragraphs (b) and (d) are revised to read as
follows:
Sec. 1200.10 Application.
* * * * *
(b) A Highway Safety Plan, approved by the Governor's
Representative for Highway Safety, describing the projects and
activities the State plans to implement to reach the goals identified
in the Performance Plan. The Highway Safety Plan must, at a minimum,
describe one year of Section 402 program activities (and may include
activities funded from other sources, so long as the source of funding
is clearly distinguished).
* * * * *
(d) A Program Cost Summary (HS Form 217 or its electronic
equivalent), completed to reflect the State's proposed allocations of
funds (including carry-forward funds) by program area, based on the
goals identified in the Performance Plan and the projects and
activities identified in the Highway Safety Plan. The funding level
used shall be an estimate of available funding for the upcoming fiscal
year.
* * * * *
3. In Sec. 1200.13, paragraph (b) is revised to read as follows:
Sec. 1200.13 Approval
* * * * *
(b) The approval letter identified in paragraph (a) of this section
will contain the following statement:
We have reviewed (STATE)'s ____________ fiscal year 19__
Performance Plan, Highway Safety Plan, Certification Statement, and
Cost Summary (HS Form 217), as received on (DATE) ________. Based on
these submissions, we find your State's highway safety program to be
in compliance with the requirements of the Section 402 program. This
determination does not constitute an obligation of Federal funds for
the fiscal year identified above or an authorization to incur costs
against those funds. The obligation of Section 402 program funds
will be effected in writing by the NHTSA Administrator at the
commencement of the fiscal year identified above. However, Federal
funds reprogrammed from the prior-year Highway Safety Program
(carry-forward funds) will be available for immediate use by the
State on October 1. Reimbursement will be contingent upon the
submission of an updated HS Form 217 (or its electronic equivalent),
consistent with the requirements of 23 CFR 1200.14(d), within 30
days after either the beginning of the fiscal year identified above
or the date of this letter, whichever is later.
* * * * *
4. In Sec. 1200.33, paragraphs (a) and (b) are revised to read as
follows:
Sec. 1200.33 Annual Report.
* * * * *
(a) The State's progress in meeting its highway safety goals, using
performance measures identified in the Performance Plan. Both Baseline
and most current level of performance under each measure will be given
for each goal.
(b) How the projects and activities funded during the fiscal year
contributed to meeting the State's highway safety goals. Where data
becomes available, a State should report progress from prior year
projects that have contributed to meeting current State highway safety
goals.
Secs. 1200.14 and 1200.22 [Amended]
In addition to the amendments set forth above, in 23 CFR part 1200,
remove the words ``HS Form 217'' and add, in their place, the words
``HS Form 217 (or its electronic equivalent)'' in the following places:
(a) Section 1200.14(d)(1) and (d)(2); and
(b) Section 1200.22.
Issued on: July 23, 1999.
Kenneth R. Wykle,
Administrator, Federal Highway Administration.
Ricardo Martinez,
Administrator, National Highway Traffic Safety Administration.
[FR Doc. 99-19321 Filed 7-27-99; 8:45 am]
BILLING CODE 4910-59-P
