99-19321. Uniform Procedures for State Highway Safety Programs  

  • [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
    
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    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
    
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    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
    
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    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
    
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    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
    
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    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
    
    
    

Document Information

Effective Date:
8/27/1999
Published:
07/28/1999
Department:
Federal Highway Administration
Entry Type:
Rule
Action:
Final rule.
Document Number:
99-19321
Dates:
August 27, 1999.
Pages:
40757-40764 (8 pages)
Docket Numbers:
Docket No. NHTSA-99-6011
RINs:
2127-AH53: Uniform Procedures for State Highway Safety Programs
RIN Links:
https://www.federalregister.gov/regulations/2127-AH53/uniform-procedures-for-state-highway-safety-programs
PDF File:
99-19321.pdf
CFR: (3)
23 CFR 1200.10
23 CFR 1200.13
23 CFR 1200.33