Use of Safety Belts and Motorcycle Helmets; Compliance and Transfer-of-Funds Procedures

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

Federal Highway Administration

23 CFR Part 1215

[Docket No. 92-40; Notice 3]

RIN 2127-AG23

Use of Safety Belts and Motorcycle Helmets; Compliance and

Transfer-of-Funds Procedures

AGENCIES: National Highway Traffic Safety Administration (NHTSA) and

Federal Highway Administration (FHWA).

ACTION: Final rule.

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SUMMARY: This rule implements portions of the National Highway System

Designation Act of 1995 that changed the transfer-of-funds provisions

contained in section 153 of title 23, United States Code. As amended,

section 153 subjects a State to a transfer of funds apportioned under

its Federal-aid highway programs to its apportionment under the section

402

[[Page 28748]]

highway safety program if the State fails to enact safety belt use

legislation. There is no longer a requirement that a State also enact

motorcycle helmet use legislation in order to avoid the transfer of

funds. Maine and New Hampshire are provided alternative compliance

criteria to avoid the transfer of funds. This rule amends the existing

regulation concerning determinations of compliance and transfers of

funds to reflect these statutory changes.

EFFECTIVE DATE: June 6, 1996.

FOR FURTHER INFORMATION CONTACT: In NHTSA, Gary Butler, Office of State

and Community Services, Room 5238, NHTSA, 400 Seventh Street, SW,

Washington, D.C., 20590 (202-366-2674) or John Donaldson, Office of the

Chief Counsel, Room 5219, NHTSA, 400 Seventh Street, SW, Washington,

D.C., 20590 (202-366-1834). In FHWA, Mila Plosky, Office of Highway

Safety, Room 3407, FHWA, 400 Seventh Street, SW, Washington, D.C.,

20590 (202-366-6902) or Raymond Cuprill, Office of the Chief Counsel,

Room 4217, FHWA, 400 Seventh Street, SW, Washington, D.C., 20590 (202-

366-0834).

SUPPLEMENTARY INFORMATION:

Background

On November 28, 1995, Congress enacted the National Highway System

Designation Act of 1995 (NHS), Pub. Law 104-59. Section 205(e) of the

NHS amended Section 153(h) of title 23, United States Code, changing

the circumstances giving rise to a transfer of funds. Prior to the

amendment, Section 153(h) provided that a State that failed to put into

effect both motorcycle helmet use and safety belt use legislation would

be subject to a transfer of certain funds apportioned under the State's

Federal-aid highway programs to its apportionment under the Section 402

program. Section 205(e) of the NHS removed the requirement that a State

must enact motorcycle helmet use legislation in order to avoid the

transfer of funds. As amended, Section 153 continues to require State

enactment of safety belt use legislation, and provides for a transfer

of funds if a State does not maintain in effect ``a law which makes

unlawful throughout the State the operation of a passenger vehicle

whenever an individual in a front seat of the vehicle (other than a

child who is secured in a child restraint system) does not have a

safety belt properly fastened about the individual's body.''

Section 205(e) of the NHS has an effective date of September 30,

1995. Under 23 U.S.C. 153(h)(2), as amended by section 205(e), the

transfer provision remains the same as before, but applies only in the

absence of safety belt use legislation. (A parallel amendment to 23

U.S.C. 153(h)(1) is not treated in this notice as it has no

applicability beyond FY 1995.) A State failing to have in effect a

safety belt use law throughout a fiscal year will experience a

transfer, in the succeeding fiscal year, of three percent of the funds

apportioned to the State's Federal-aid highway programs under each of

subsections 104(b)(1), (b)(2), and (b)(3) of title 23, United States

Code, to the State's highway safety program apportionment under section

402 of that title.

In accordance with the provisions of Section 205(e) of the NHS,

today's notice removes all references and requirements concerning

motorcycle helmet use legislation from the regulation implementing

Section 153. In addition, outdated provisions concerning previous

fiscal years are deleted, consistent with the President's direction

that the nation's regulatory system be overhauled and streamlined.

Other portions of the regulation, including those describing compliance

criteria and exemptions (insofar as they apply to safety belt use

legislation) and the purposes for which transferred funds may be used

remain unchanged.

Section 355 of the NHS created alternative compliance criteria

available only to the States of New Hampshire and Maine, by which these

States might avoid a transfer of funds due to non-compliance with the

provisions of 23 U.S.C. 153. Section 355 provides that New Hampshire

and Maine are each to be deemed in compliance with Section 153 upon

certification by the Secretary of Transportation that the State has

achieved a safety belt use rate ``in each of fiscal years 1995 and

1996, of not less than 50 percent'' and ``in each fiscal year

thereafter of not less than the national average safety belt use rate,

as determined by the Secretary.'' Section 355 additionally provides

that if New Hampshire or Maine ``continues in effect'' a safety belt

use law within 60 days after the section's enactment, the State is to

be treated as if the law were in effect as of September 30, 1995.

(Maine has enacted legislation satisfying this timeliness requirement,

and will not be subject to the safety belt use rate requirements

provided the legislation is continued in effect.) Finally, Section 355

provides for a reservation of funds prior to the transfer. These

alternative compliance criteria and procedures are also addressed in

today's notice.

Rulemaking Analyses and Notices

(a) Executive Order 12866 (Regulatory Planning and Review) and DOT

Regulatory Policies and Procedures

The agencies have not reviewed this rulemaking document under

Executive Order 12866. This action has been determined to be not

``significant'' under the Department of Transportation's regulatory

policies and procedures.

(b) Regulatory Flexibility Act (Pub. L. 96-354)

In compliance with the Regulatory Flexibility Act, the agencies

have evaluated the effects of this action on small entities, and

certify that this action will not have a significant economic impact on

a substantial number of small entities. Accordingly, the preparation of

a Regulatory Flexibility Analysis is unnecessary.

(c) Executive Order 12612 (Federalism Assessment)

The agencies have analyzed this action in accordance with Executive

Order 12612, and have determined that it does not have federalism

implications warranting the preparation of a federalism assessment. The

action implements new legislation which reduces Federal requirements

imposed on the States.

(d) Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.)

This action does not affect a collection of information

requirement, for purposes of the Paperwork Reduction Act.

(e) National Environmental Policy Act (42 U.S.C. 4321 et seq.)

The agencies have reviewed this action for purposes of the National

Environmental Policy Act, and determined that it will not have a

significant effect on the quality of the human environment.

(f) Executive Order 12778 (Civil Justice Reform)

This action does not have any preemptive effect, and the only

retroactive effect is one that removes a Federal requirement. It

imposes no requirements on the States, but rather deletes provisions

that are obsolete and removes restrictions on the States that have been

rescinded by new legislation. The enabling legislation does not

establish a procedure for judicial review of final rules promulgated

under its provisions. There is no requirement that individuals pursue

administrative remedies prior to filing suit in court.

[[Page 28749]]

(g) Notice and Comment

The agencies find that prior notice and opportunity for comment are

unnecessary under 5 U.S.C. 553(b)(3)(B) because the agencies are not

exercising discretion in a way that could be meaningfully affected by

public comment. The amendments made by this action merely remove

restrictions on the States, as mandated by new legislation, and delete

provisions that are obsolete. Therefore, notice and opportunity for

comment are not required under the regulatory policies and procedures

of the Department of Transportation. In addition, good cause exists to

dispense with the 30-day delayed effective date requirement of 5 U.S.C.

553(d) because this final rule ``grants or recognizes an exemption or

relieves a restriction'' in accordance with 5 U.S.C. 553(d)(1).

List of Subjects in 23 CFR Part 1215

Grant programs--Transportation, Highway safety.

For the reasons set forth in the preamble, Part 1215 of Title 23 of

the Code of Federal Regulations is amended to read as follows:

PART 1215--USE OF SAFETY BELTS AND MOTORCYCLE HELMETS--COMPLIANCE

AND TRANSFER-OF-FUNDS PROCEDURES

1. The authority citation for part 1215 is revised to read as

follows:

Authority: 23 U.S.C. 153; Secs. 205(e) and 355, Pub. L. 104-59;

delegations of authority at 49 CFR 1.48 and 1.50.

2. The heading to part 1215 is revised to read as follows:

PART 1215--USE OF SAFETY BELTS--COMPLIANCE AND TRANSFER-OF-FUNDS

PROCEDURES

3. Section 1215.1 is revised to read as follows:

Sec. 1215.1 Scope.

This part establishes criteria, in accordance with 23 U.S.C. 153,

as amended, and Section 355 of the National Highway System Designation

Act of 1995, for determining compliance with the requirement that

States not having safety belt use laws be subject to a transfer of

Federal-aid highway apportionments under 23 U.S.C. 104 (b)(1), (b)(2),

and (b)(3) to the highway safety program apportionment under 23 U.S.C.

402.

4. Section 1215.2 is revised to read as follows:

Sec. 1215.2 Purpose.

This part clarifies the provisions which a State must incorporate

into its safety belt law to prevent the transfer of a portion of its

Federal-aid highway funds to the section 402 highway safety program

apportionment, describes notification and transfer procedures,

establishes parameters for the use of transferred funds, and provides

alternate compliance criteria for New Hampshire and Maine.

5. In Sec. 1215.3, the definition of ``motorcycle'' is removed and

a new definition is added after the definition of ``safety belt,'' to

read as follows:

Sec. 1215.3 Definitions.

* * * * *

Secretary means the Secretary of Transportation.

6. Section 1215.4 is revised to read as follows:

Sec. 1215.4 Compliance criteria.

(a) Except as provided in paragraphs (c) or (d) of this section, in

order to avoid the transfer or reservation (as applicable) specified in

Sec. 1215.7, a State must have and continue in effect at all times

during the fiscal year a law which makes unlawful throughout the State

the operation of a passenger vehicle whenever an individual in a front

seat of the vehicle (other than a child who is secured in a child

restraint system) does not have a safety belt properly fastened about

the individual's body.

(b) A State that enacts the law specified in paragraph (a) of this

section will be determined to comply with 23 U.S.C. 153, provided that

any exemptions are consistent with Sec. 1215.5.

(c) If New Hampshire or Maine enacts a law described in paragraph

(a) of this section by January 27, 1996, the State shall be deemed as

having that law in effect on September 30, 1995.

(d)(1) If the Secretary certifies in a fiscal year that New

Hampshire or Maine has achieved the safety belt use rate specified in

paragraph (d)(2) of this section, the State shall be considered as

complying with the provisions of paragraph (a) of this section.

(2) The safety belt use rate must be not less than 50 percent in

each of fiscal years 1995 and 1996, and not less than the national

average as determined by the Secretary in each fiscal year thereafter.

7. Section 1215.5 is revised to read as follows:

Sec. 1215.5 Exemptions.

(a) Safety belt use laws exempting persons with medical excuses,

persons in emergency vehicles, persons in the custody of police,

persons in public and livery conveyances, persons in parade vehicles,

persons in positions not equipped with safety belts, and postal,

utility and other commercial drivers who make frequent stops in the

course of their business shall be deemed to comply with 23 U.S.C. 153.

(b) Safety belt use laws exempting vehicles equipped with air bags

shall be deemed not to comply with 23 U.S.C. 153.

(c) An exemption not identified in paragraph (a) of this section

shall be deemed to comply with 23 U.S.C. 153 only if NHTSA and FHWA

determine that it is consistent with the intent of Sec. 1215.4(a), and

applies to situations in which the risk to occupants is very low or in

which there are exigent justifications.

8. Section 1215.6 is revised to read as follows:

Sec. 1215.6 Review and notification of compliance status.

Review of each State's laws and notification of compliance status

shall occur each fiscal year, in accordance with the following

procedures:

(a) NHTSA and FHWA will review appropriate State laws for

compliance with 23 U.S.C. 153. States initially found to be in non-

compliance will be notified of such finding and of funds expected to be

transferred or reserved (as applicable) under Sec. 1215.7, through the

advance notice of apportionments required under 23 U.S.C. 104(e),

normally not later than ninety days prior to final apportionment.

(b) A State notified of non-compliance under paragraph (a) of this

section may, within 30 days after its receipt of the advance notice of

apportionments, submit documentation showing why it is in compliance to

the Associate Administrator for State and Community Services, NHTSA,

400 Seventh Street, SW, Washington, D.C., 20950.

(c) Each fiscal year, States determined to be in non-compliance

with 23 U.S.C. 153 will receive notice of the funds being transferred

or reserved (as applicable) under Sec. 1215.7, through the

certification of apportionments required under 23 U.S.C. 104(e),

normally on October 1.

9. Section 1215.7 is revised to read as follows:

Sec. 1215.7 Transfer of funds

(a) Except as provided in paragraph (b) of this section, if at any

time in a fiscal year beginning after September 30, 1994, a State does

not have in effect a law described in Sec. 1215.4(a), the Secretary

shall transfer 3 percent of the funds apportioned to the State for the

succeeding fiscal year under 23 U.S.C. 104 (b)(1), (b)(2) and (b)(3) to

the apportionment of the State under 23 U.S.C. 402.

[[Page 28750]]

(b) For New Hampshire or Maine, except as provided in

Sec. 1215.4(c), if at any time in a fiscal year beginning after

September 30, 1994, the State does not have in effect a law described

in Sec. 1215.4(a), the Secretary shall reserve 3 percent of the funds

to be apportioned to the State for the succeeding fiscal year under 23

U.S.C. 104 (b)(1), (b)(2) and (b)(3) if the Secretary has not

certified, in accordance with Sec. 1215.4(d), that the State has

achieved the applicable safety belt use rate.

(c) If, at the end of a fiscal year in which the funds are reserved

for New Hampshire or Maine under paragraph (b) of this section, the

Secretary has not certified that the State achieved the applicable

safety belt use rate, the Secretary shall transfer the funds reserved

from the State to the apportionment of the State under 23 U.S.C. 402.

(d) Any obligation limitation existing on transferred funds prior

to the transfer will apply, proportionately, to those funds after

transfer.

Issued on: May 31, 1996.

Rodney E. Slater,

Administrator, Federal Highway Administration.

Ricardo Martinez,

Adminstrator, National Highway Traffic Safety Administration

[FR Doc. 96-14258 Filed 6-5-96; 8:45 am]

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