Uniform Procedures for State Highway Safety Programs

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

Federal Highway Administration

23 CFR Parts 1200 and 1205

[NHTSA Docket No. 93-55, Notice 5]

RIN 2127-AG69

Uniform Procedures for State Highway Safety Programs

AGENCY: National Highway Traffic Safety Administration and Federal

Highway Administration, DOT.

ACTION: Interim final rule; request for comments.

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SUMMARY: This document establishes new uniform procedures governing the

implementation of State highway safety programs. It amends existing

requirements by providing a more flexible system under which States are

responsible for setting highway safety goals and implementing programs

to achieve those goals.

This document is being issued as an interim final rule to provide

guidance to the States before the start of fiscal year 1998. The

agencies request comments on the rule. The agencies will publish a

notice responding to the comments received and, if appropriate, will

amend provisions of the regulation.

DATES: This interim final rule becomes effective June 26, 1997.

Comments on this interim rule are due no later than August 11, 1997.

ADDRESSES: Comments should refer to the docket number set forth above

and be submitted (preferably in 10 copies) to the Docket Section, Room

5109, National Highway Traffic Safety Administration, 400 Seventh

Street, SW., Washington, DC 20590. Docket hours are from 9:30 a.m. to 4

p.m. Monday through Friday.

FOR FURTHER INFORMATION CONTACT: In NHTSA, Marlene Markison, Office of

State and Community Services, 202-366-2121; John Donaldson, Office of

the Chief Counsel. In FHWA, Mila Plosky, Office of Highway Safety, 202-

366-6902; Michael Falk, 202-366-0834.

SUPPLEMENTARY INFORMATION:

A. Statutory Requirements

The Highway Safety Act of 1966 (23 U.S.C. 401 et seq.) established

a formula grant program 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 National Highway Traffic Safety Administration

(NHTSA) and the Federal Highway Administration (FHWA) (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, until 1976, 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. The Act, as amended, provides that only

those programs established under the rule as most effective in reducing

crashes, injuries and deaths would be eligible for Federal financial

assistance under the Section 402 program. In accordance with this

provision, the agencies have identified, over time, nine such programs,

the ``National Priority Program areas.'' These programs appear in a

rule at 23 CFR part 1205, discussed further below, under the heading

``Current Regulations.''

B. Current Regulations

1. Part 1200

In recent years, the agencies have administered the Section 402

program in accordance with an implementing regulation, Uniform

Procedures for State Highway Safety Programs (23 CFR part 1200). That

regulation, portions of which are amended by today's action, contains

detailed procedures governing the content and Federal approval of a

``Highway Safety Plan,'' to be submitted each fiscal year by the

States. In particular, under the regulation each

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State's highway safety plan is required 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 must describe and justify program areas

to be funded, discuss planning and administration and training needs,

and provide certain certifications and financial documentation.

The regulation requires 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 is also required, on a year-by-year

basis, if a State wishes to continue a NHTSA project beyond three

years. Such approval is conditioned on a showing that the project has

demonstrated great merit or the potential for significant long-range

benefits, and is subject to increased cost assumption by the State. The

regulation provides the agencies with broad discretion to approve,

conditionally approve, or disapprove a highway safety plan or any

portion of the document. Agency approving officials are centrally

involved in an evaluation of whether the highway safety plan

establishes the existence of bona fide highway safety problems,

identifies countermeasures and projects reasonably calculated to

address the problems, and proposes an efficient use of Federal funds.

Under the regulation, States are required to submit a comprehensive

and detailed annual evaluation report. The annual report is required to

contain a three-to-five page statewide overview of highway safety

accomplishments, a description of projects conducted and costs incurred

by program area, a discussion of legislative and administrative

accomplishments, and a report on the status of remedial actions.

The submission and approval requirements under the current Part

1200 place a greater emphasis on Federal oversight of State highway

safety programs than the agencies believe is necessary or desirable at

this time. State highway safety programs have matured substantially

since the inception of the Section 402 program. Accordingly, under the

heading ``Changes to Regulation,'' the agencies discuss amendments to

these portions of the regulation, made by today's notice, that provide

the States more flexibility.

Part 1200 contains other provisions, such as those concerning the

apportionment and obligation of Federal funds, financial accounting

(including submission of vouchers, program income, and the like), and

closeout of each year's program. These provisions remain essentially

unchanged by today's action.

2. Part 1205

Today's action also amends portions of another regulation, 23 CFR

part 1205, Highway Safety Programs; Determinations of Effectiveness.

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, as discussed above, identified

these program areas as ``National Priority Program Areas.'' There are

currently nine 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.

Part 1205 currently provides for expedited funding approval of

programs developed in any of the National Priority Program Areas. Part

1205 provides that programs developed under other program areas may

also be funded, but they must be approved under a more detailed

approval process. As further described under the heading ``Changes to

Regulation,'' today's notice provides States with more flexibility also

with regard to their ability to fund these programs.

C. The Pilot Program

In the years since the original enactment of Section 402, States

have developed the infrastructure, tools, and resources necessary to

conduct effective highway safety programs. Increasingly, States have

expressed interest in assuming more responsibility for the planning and

direction of their programs, with a decreased emphasis on the detailed

Federal oversight that exists under the current regulation. Just as

Congress earlier recognized the desirability of changing the mandatory

standards to more flexible guidelines, the agencies believe it is

appropriate at this time 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 years1996 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 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

benchmarking 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 was previously required 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 part

1200. Instead, the process

[[Page 34399]]

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 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

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.

The Federal Register notices announcing the pilot program explained

that, if the pilot program was successful, the agencies expected to

revise the regulations governing State highway safety programs to adopt

the pilot procedures permanently.

2. Experience Under the Pilot Program

Over the two-year period during which the pilot program has been in

place, it has met with 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 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 had already 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 evaluation

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 are making steady progress toward achieving

established goals. Experience to date confirms that the pilot program

has resulted in the implement 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 agreed that, if progress toward meeting goals does not occur in

a State, both State and Federal officials should cooperate to develop

an improvement plan for the State.

D. Changes to the Regulation

1. In General

Based on the success of the pilot program during its nearly two

years of operation, today's interim final rule revises the regulations

governing State highway safety programs to implement the pilot

procedures. It also addresses issues raised during the January 1997

meeting. It extends the due date for submission of application

documents from August 1 to September 1, which is a change in both the

pilot procedures and the procedures under part 1200. The interim final

rule accommodates the States' desire for flexibility to plan and set

goals covering time periods that best meet State needs. It also

provides for a joint effort by Federal and State officials to develop

an improvement plan, where a State fails to progress to meet goals.

States are free at any time to request assistance or advice from the

agencies' field offices, which remain ready to devote available

resources as needed.

This interim final rule replaces the existing procedures governing

the preparation, submission, review, and approval of State Highway

Safety Plans, contained in the Uniform Procedures for State Highway

Safety Programs (23 CFR part 1200) and discussed generally under the

heading ``Part 1200,'' above, with new procedures that are modeled

after those used in the pilot program. The interim final rule requires

the States to submit information detailing their highway safety

programs in the same format as required under the pilot program.

However, the rule makes some adjustments to the pilot program

procedures, as discussed above.

In addition, the interim final rule makes some changes in

terminology from that used in the pilot program. The more descriptive

terms ``performance plan'' and ``highway safety plan'' replace 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 remain

essentially unchanged from those existing under the pilot program, as

described under the heading ``The Pilot Program.'' (Retention of the

familiar term ``highway safety plan'' is for convenience, and does not

convey that procedures predating the pilot program continue to apply to

that document.) States may choose (and are encouraged) to prepare their

Performance Plan and Highway Safety Plan as comprehensive documents

which also include goals and activities for highway safety programs

other than the Section 402 program (such as Federal incentive grants).

If this is done, 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.

Under the interim final rule, the nature of the Federal approval

process has been changed. Instead of approving a highway safety plan

based on a project-by-project justification, the agencies instead will

review the State's highway safety program as a whole, to verify that

the State has developed a goal-oriented highway safety program that has

been approved by the Governor's Representative for Highway Safety, and

that identifies the State's highway safety problems, establishes

[[Page 34400]]

goals and performance measures to effect improvements in highway

safety, and describes activities designed to achieve those goals. When

establishing performance measures, States may wish to consult the

``Examples of Performance Measures'' section of the Pilot State Highway

Safety Program Notice of Waiver published in the Federal Register on

September 5, 1996 (61 FR 46895).

The agencies have retained the requirement, contained in both part

1200 and the pilot procedures, that States must submit an annual

report. However, the interim final rule changes the contents of the

annual report from those required by part 1200 (described under the

heading ``Part 1200''). Under the interim final rule, the States are

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

must also include in these reports an explanation of how these projects

and activities contributed to meeting the State's highway safety goals.

The agencies believe that the performance-based process, which

places the States in charge of determining the best means of improving

traffic safety within their borders, is an effective means of ensuring

the proper identification of highway safety problems and the efficient

deployment of resources to address those problems. Experience under the

pilot program confirms that States are uniquely qualified to assess

their highway safety deficiencies, and that they are able to

effectively address these deficiencies by establishing goals and using

performance measures, without the need for detailed Federal review at

the project level.

No substantive changes have been made to provisions relating to the

apportionment and obligation of Federal funds, financial accounting,

and the like. These sections of the regulation are being republished in

this notice simply for ease of reference.

2. Highlighted Provisions

In order to complete the change to procedures modeled after those

of the pilot program, and to improve clarity and organization, the

agencies have made certain other changes to part 1200. For example, the

requirement that States must seek Federal approval before implementing

program changes (including changes exceeding ten percent of the funding

in a program area), has been replaced with a simple notification

requirement in the interim final rule, consistent with the pilot

program procedures. This change reduces administrative burdens and

increases the States' ability to make efficient adjustments to their

programs. The section on equipment has been simplified in the interim

final rule, making it easier to follow. There are no longer separate

definitions for major and non-major equipment since, for most purposes,

all equipment used in the Section 402 program is treated alike.

Instead, within the section on equipment, a paragraph concerning major

purchases and dispositions identifies the threshold at which Federal

approval is necessary.

The agencies have made some structural refinements throughout the

regulation to improve clarity or to include useful information or

cross-references. For example, the interim final rule changes, deletes,

or streamlines some definitions, where they are no longer needed or

where the text of the proposed rule is sufficiently clear without the

definition. The interim final rule also sets forth the minimum

statutory requirements for approval of a state highway safety program

(responsibility of the Governor for program administration,

participation by political subdivisions, access for handicapped

persons, and programs for use of safety belts). These elements have

been longstanding requirements of the Section 402 program under the

Highway Safety Act, and are restated in the interim final rule for

convenience. Additionally, the interim final rule includes a cross-

reference to sanctions required by the Highway Safety Act to be imposed

for failure to have or to implement a highway safety program, also for

convenience.

The agencies have changed the definition of ``approving official,''

due to a change in the appropriation process for the Section 402

program. In fiscal year 1997, Congress placed all Section 402 funding

under NHTSA's appropriation, while retaining separate authorizing

legislation for the Section 402 program for both NHTSA and the FHWA.

(Previously, NHTSA and the FHWA had separate appropriations as well as

authorizations for the Section 402 program.) As a result, NHTSA has

assumed the lead responsibility for administration of the Section 402

program, though the agencies will continue to coordinate many

decisions. The proposed definition reflects this new relationship.

The agencies have deleted the requirement that States must seek

Federal approval and assume a greater share of project costs prior to

continuing a NHTSA-funded project or activity beyond three years. Over

the years, this requirement has been used to ensure that NHTSA funds

are predominantly used as ``seed money,'' to assist states with the

start-up of innovative new projects whose implementation would later be

taken over by the State. With the change to a performance-based

program, the agencies no longer are involved in project-by-project

review, and this project-level approval provision is no longer

appropriate. However, States are encouraged to develop their own ``seed

money'' and cost sharing requirements for local highway safety projects

and activities, to stimulate the continued introduction of innovative

new solutions to highway safety problems at the local level. The

agencies are pleased to note that several States (e.g., Florida,

Georgia, and Mississippi) have developed and are implementing such

requirements.

Finally, this interim final rule makes conforming changes to the

funding procedures for National Priority Program Areas and other

program areas, appearing in 23 CFR part 1205, Highway Safety Programs;

Determinations of Effectiveness, consistent with the agencies'

objectives of placing more decisionmaking responsibilities in the hands

of the States. With these changes, States can now 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 will be required to

identify programs that address problems of State concern and for which

effective countermeasures have been identified. The current regulation

specifies a formal process for approval of activities under program

areas identified by the States and requires detailed Federal review.

Under this interim final rule, States are given more flexibility in the

processes they may use to identify program areas that are State

priorities, and the level of Federal oversight has been reduced.

A number of other requirements apply to the Section 402 program,

including those appearing in other parts of Chapter II of Title 23 CFR,

and such government-wide provisions as the Uniform Administrative

Requirements for Grants and Cooperative Agreements to State and Local

Governments (49 CFR part 18) and the Office of Management and Budget

(OMB) Circulars containing cost principles and audit requirements

(e.g., OMB Circulars A-21, A-87, A-122, A-128, and A-133). These

provisions are unaffected by today's notice, and continue to apply in

accordance with their terms.

[[Page 34401]]

E. Regulatory Analyses and Notices

Executive Order 12612 (Federalism)

This action has been analyzed in accordance with the principles and

criteria contained in Executive Order 12612, and it has been 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 are responsible for setting highway safety

goals, in accordance with their individual needs. In other respects,

this action is consistent with the procedures of a common rule for the

administration of grants to State and local governments (49 CFR part

18) which has as its basis the principles of Federalism, and which

recognizes that States possess unique constitutional authority,

resources, and competence to administer national grant programs, and

provides for the application of State laws and procedures to many

aspects of grant administration.

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

The agencies 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.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et

seq.), the agencies 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. The preparation of a Regulatory Flexibility Analysis is

unnecessary.

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, 1998; OMB Control

No. 2127-0003.

Environmental Impacts

The agencies 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.

F. Interim Final Rule

This notice is published as an interim final rule, without prior

notice and opportunity to comment. Because this regulation relates to a

grant program, the requirements of the Administrative Procedure Act

(APA), 5 U.S.C. 553, are not applicable. Moreover, even if the notice

and comment provisions of the APA did apply, the agencies believe that

there is good cause for finding that providing notice and comment in

connection with this rulemaking action is impracticable, unnecessary,

and contrary to the public interest, since it would delay the

availability of guidance to States concerning new procedures applicable

to fiscal year 1998 highway safety programs under 23 U.S.C. 402. States

require this information well in advance of the start of the fiscal

year to which the highway safety program applies in order to comply

with application procedures and to allow sufficient time for program

planning activities. This finding is further supported because the

amendments made in this interim final rule are consistent with the

provisions of a pilot program whose procedures are already known to the

States. The pilot program is in its second year of operation, with most

States participating, and its procedures were closely coordinated with

the States prior to the start of the pilot program. For these reasons,

the agencies also believe that there is good cause to make the rule

effective immediately upon publication.

As an interim final rule, this regulation is fully in effect and

binding upon its effective date. No further regulatory action by the

agencies is necessary to make the rule effective. However, in order to

benefit from comments which interested parties and the public may have,

the agencies are requesting that comments be submitted to the docket

for this notice. All comments submitted in response to this notice, in

accordance with the procedures outlined below, will be considered by

the agency. Following the close of the comment period, the agencies

will publish a notice responding to the comments and, if appropriate,

the agencies will amend the provisions of this rule.

G. Comments to the Docket

The agencies are providing a 45-day comment period for interested

parties to present data, views, and arguments concerning this notice.

The agencies invite comments on the issues raised in this notice and

any other issues commenters believe are relevant to this action.

Comments must not exceed 15 pages in length (49 CFR 553.21). This

limitation is intended to encourage commenters to detail their primary

arguments in a concise fashion. Necessary attachments may be appended

to these submissions without regard to the 15-page limit.

All comments received by the close of business on the comment

closing date indicated above will be considered and will be available

for examination in the docket at the above address both before and

after that date. To the extent possible, comments filed after the

closing date will also be considered. However, the rulemaking action

may proceed at any time after that date. Following the close of the

comment period, the agencies will publish a notice responding to the

comments and, if appropriate, the agencies will amend the provisions of

this rule. The agencies will continue to file relevant material in the

docket as it becomes available after the closing date, and it is

recommended that interested persons continue to examine the docket for

new material.

Those persons desiring to be notified of receipt of their comments

by the docket should enclose a self-addressed, stamped postcard in the

envelope with their comments. Upon receipt of the comments, the docket

supervisor will return the postcard by mail.

[[Page 34402]]

Copies of all comments will be placed in Docket 93-55, Notice 5 of

the NHTSA Docket Section in Room 5109, Nassif Building, 400 Seventh

Street, SW., Washington, DC 20590.

List of Subjects in 23 CFR Parts 1200 and 1205

Grant programs--transportation, Highway safety.

For the reasons set out in the preamble, title 23, chapter II of

the Code of Federal Regulations is amended as set forth below.

1. Subchapter A, part 1200, is revised to read as follows:

SUBCHAPTER A--PROCEDURES FOR STATE HIGHWAY SAFETY PROGRAMS

PART 1200--UNIFORM PROCEDURES FOR STATE HIGHWAY SAFETY PROGRAMS

Subpart A--General

Sec.

1200.1 Purpose.

1200.2 Applicability.

1200.3 Definitions.

Subpart B--Application, Approval, and Funding of the Highway Safety

Program

1200.10 Application.

1200.11 Special funding conditions.

1200.12 Due date.

1200.13 Approval.

1200.14 Apportionment and obligation of Federal funds.

Subpart C--Implementation and Management of the Highway Safety Program

1200.20 General.

1200.21 Equipment.

1200.22 Changes.

1200.23 Vouchers and project agreements.

1200.24 Program income.

1200.25 Improvement plan.

1200.26 Non-compliance.

1200.27 Appeals.

Subpart D--Closeout

1200.30 Expiration of the right to incur costs.

1200.31 Extension of the right to incur costs.

1200.32 Final voucher.

1200.33 Annual report.

1200.34 Disposition of unexpended balances.

1200.35 Post-grant adjustments.

1200.36 Continuing requirements.

Authority: 23 U.S.C. 402; delegations of authority at 49 CFR

1.48 and 1.50.

Subpart A--General

Sec. 1200.1 Purpose.

This part establishes uniform application, approval,

implementation, and closeout procedures for State highway safety

programs authorized under 23 U.S.C. 402.

Sec. 1200.2 Applicability.

The provisions of this part apply to highway safety programs

conducted by States under 23 U.S.C. 402.

Sec. 1200.3 Definitions.

As used in this subchapter--

Approving Official means a Regional Administrator of the National

Highway Traffic Safety Administration, with the concurrence of a

Division Administrator of the Federal Highway Administration as

necessary.

Carry-forward funds means those funds that a State has obligated

but not expended in the fiscal year in which they were apportioned,

that are being reprogrammed to fund activities in a subsequent fiscal

year.

Contract authority means the statutory language that authorizes the

agencies to incur an obligation without the need for a prior

appropriation or further action from Congress and which, when

exercised, creates a binding obligation on the United States for which

Congress must make subsequent liquidating appropriations.

Equipment means any tangible personal property acquired for use

under the State's approved highway safety program.

FHWA means the Federal Highway Administration.

Fiscal year means the Federal fiscal year, consisting of twelve

months beginning each October 1 and ending the following September 30.

Governor means the Governor of any of the fifty States, Puerto

Rico, the Virgin Islands, Guam, American Samoa, or the Commonwealth of

the Northern Mariana Islands, the Mayor of the District of Columbia,

or, for the application of this part to Indians as provided in 23

U.S.C. 402(i), the Secretary of the Interior.

Governor's Representative for Highway Safety means the official

appointed by the Governor to implement the State's highway safety

program or, for the application of this part to Indians as provided in

23 U.S.C. 402(i), an official of the Bureau of Indian Affairs who is

duly designated by the Secretary of the Interior to implement the

Indian highway safety program.

NHTSA means the National Highway Traffic Safety Administration.

Program area means a National Priority Program Area identified in

Sec. 1205.3 of this chapter or a program area identified by the State

in the highway safety plan as encompassing a major highway safety

problem in the State and for which effective countermeasures have been

identified.

Program income means gross income received by the State or any of

its subgrantees or contractors that is directly or indirectly generated

by a Federally-supported project during the project performance period.

Section 402 means section 402 of title 23 of the United States

Code.

State means any of the fifty States of the United States, the

District of Columbia, Puerto Rico, the Virgin Islands, Guam, American

Samoa, the Commonwealth of the Northern Mariana Islands, or, for the

application of this part to Indians as provided in 23 U.S.C. 402(i),

the Secretary of the Interior.

Subpart B--Application, Approval, and Funding of the Highway Safety

Program

Sec. 1200.10 Application.

Each fiscal year, a State's application for funds for its highway

safety program shall consist of the following components:

(a) A Performance Plan, containing the following elements:

(1) A list of objective and measurable highway safety goals, within

the National Priority Program Areas and other program areas, based on

highway safety problems identified by the State during the processes

under paragraph (a)(2) of this section. Each goal must be accompanied

by at least one performance measure that enables the State to track

progress, from a specific baseline, toward meeting the goal (e.g., a

goal to ``increase safety belt use from XX percent in 19__ to YY

percent in 20__,'' using a performance measure of ``percent of

restrained occupants in front outboard seating positions in passenger

motor vehicles'').

(2) A brief description of the processes used by the State to

identify its highway safety problems, define its highway safety goals

and performance measures, and develop projects and activities to

address its problems and achieve its goals. In describing these

processes, the State shall identify the participants in the processes

(e.g., highway safety committees, community and constituent groups),

discuss the strategies for project or activity selection (e.g.,

constituent outreach, public meetings, solicitation of proposals), and

list the information and data sources consulted.

(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 activities.

(c) A Certification Statement, signed by the Governor's

Representative for

[[Page 34403]]

Highway Safety, providing assurances that the State will comply with

applicable laws and regulations, financial and programmatic

requirements, and in accordance with Sec. 1200.11 of this part, the

special funding conditions of the Section 402 program.

(d) A Program Cost Summary (HS Form 217), 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.

Sec. 1200.11 Special funding conditions.

The State's highway safety program under Section 402 shall be

subject to the following conditions, and approval under Sec. 1200.13 of

this part shall in no event be deemed to waive these conditions:

(a) Responsibility of the Governor--The Governor of the State shall

be responsible for the administration of the Section 402 program

through a State highway safety agency that shall have adequate powers

and be suitably equipped and organized to carry out the program.

(b) Participation by Political Subdivisions--Political subdivisions

shall be authorized to carry out local highway safety programs,

approved by the Governor, as a part of the State highway safety

program, and at least 40 percent of all Federal funds provided under

this part shall be used by or for the benefit of political

subdivisions, in accordance with the provisions of part 1250 of this

chapter.

(c) Access for Persons with Disabilities--Adequate and reasonable

access shall be provided for the safe and convenient movement of

persons with physical disabilities, including those in wheelchairs,

across curbs constructed or replaced on or after July 1, 1976, at all

pedestrian crosswalks throughout the State.

(d) Use of Safety Belts--Programs shall be provided (which may

include financial incentives and disincentives) to encourage the use of

safety belts by drivers and passengers in motor vehicles.

(e) Planning and Administration Costs--Funding and matching

requirements for planning and administration costs shall be in

accordance with the provisions of part 1252 of this chapter.

(f) Purchase and Disposition of Equipment--Major purchases and

dispositions of equipment shall require prior approval by the approving

official, in accordance with the provisions of Sec. 1200.21(d) of this

part.

Sec. 1200.12 Due date.

Three copies of the application documents identified in

Sec. 1200.10 of this part must be received by the NHTSA regional office

no later than September 1 preceding the fiscal year to which the

documents apply. The NHTSA regional office will forward copies to NHTSA

headquarters and the FHWA division office. Failure to meet this

deadline may result in delayed approval and funding.

Sec. 1200.13 Approval.

(a) Upon receipt of application documents complying with the

provisions of Sec. 1200.10 and Sec. 1200.11 of this part, the Approving

Official will issue a letter of approval to the Governor and the

Governor's Representative for Highway Safety.

(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, 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.

(c) If approval is withheld, for reasons of non-compliance with

Sec. 1200.10 or Sec. 1200.11 of this part or other applicable law, the

Approving Official shall identify in writing the specific area(s) of

non-compliance which formed the basis for withholding approval.

Sec. 1200.14 Apportionment and obligation of Federal funds.

(a) Except as provided in paragraph (b) of this section, on October

1 of each fiscal year the NHTSA Administrator shall, in writing,

distribute funds available for obligation under Section 402 to the

States and specify any conditions or limitations imposed by law on the

use of the funds.

(b) In the event that authorizations exist but no applicable

appropriation act has been enacted by October 1 of a fiscal year the

NHTSA and FHWA Administrators shall, in writing, distribute a part of

the funds authorized under Section 402 contract authority to ensure

program continuity and shall specify any conditions or limitations

imposed by law on the use of the funds. Upon appropriation of Section

402 funds, the NHTSA Administrator shall, in writing, promptly adjust

the obligation limitation, and specify any conditions or limitations

imposed by law on the use of the funds.

(c) The funds distributed under paragraph (a) or (b) of this

section shall be available for expenditure by the states to satisfy the

Federal share of expenses under the approved highway safety program,

and shall constitute a contractual obligation of the Federal

Government, subject to any conditions or limitations identified in the

distributing document.

(d)(1) Notwithstanding the provisions of paragraph (c) of this

section, reimbursement of State expenses shall be contingent upon the

submission of an updated HS Form 217, within 30 days after either the

beginning of the fiscal year or the date of the written approval

required under Sec. 1200.13 of this part, whichever is later.

(2) The updated HS Form 217 required under paragraph (d)(1) of this

section shall reflect the State's allocation of Section 402 funds made

available for expenditure during the fiscal year, including known

carry-forward funds.

Subpart C--Implementation and Management of the Highway Safety

Program

Sec. 1200.20 General.

Except as otherwise provided in this subpart and subject to the

provisions herein, the requirements of 49 CFR part 18 and applicable

cost principles govern the implementation and management of State

highway safety programs carried out under 23 U.S.C. 402. Cost

principles include those referenced in 49 CFR 18.22 and those set forth

in applicable Department of Transportation, NHTSA, or FHWA Orders.

Sec. 1200.21 Equipment.

(a) Title. Except as provided in paragraphs (e) and (f) of this

section, title to equipment acquired under the Section 402 program will

vest upon acquisition in the State or its subgrantee, as appropriate.

[[Page 34404]]

(b) Use. All equipment shall be used for the originally authorized

grant purposes for as long as needed for those purposes, as determined

by the Approving Official, and neither the State nor any of its

subgrantees or contractors shall encumber the title or interest while

such need exists.

(c) Management and disposition. Subject to the requirement of

paragraphs (b), (d), (e) and (f) of this section, States and their

subgrantees and contractors shall manage and dispose of equipment

acquired under the Section 402 program in accordance with State laws

and procedures.

(d) Major Purchases and dispositions. All purchases and

dispositions of equipment with a useful life of more than one year and

an acquisition cost of $5,000 or more must receive prior written

approval from the Approving Official.

(e) Right to transfer title. The Approving Official may reserve the

right to transfer title to equipment acquired under the Section 402

program to the Federal Government or to a third party when such third

party is otherwise eligible under existing statutes. Any such transfer

shall be subject to the following requirements:

(1) The equipment shall be identified in the grant or otherwise

made known to the State in writing;

(2) The Approving Official shall issue disposition instructions

within 120 calendar days after the equipment is determined to be no

longer needed in the Section 402 program, in the absence of which the

State shall follow the applicable procedures in 49 CFR part 18.

(f) Federally-owned equipment. In the event a State or its

subgrantee is provided Federally-owned equipment:

(1) Title shall remain vested in the Federal Government;

(2) Management shall be in accordance with Federal rules and

procedures, and an annual inventory listing shall be submitted;

(3) The State or its subgrantee shall request disposition

instructions from the Approving Official when the item is no longer

needed in the Section 402 program.

Sec. 1200.22 Changes.

States shall provide documentary evidence of any reallocation of

funds between program areas by submitting to the NHTSA regional office

an amended HS form 217, reflecting the changed allocation of funds,

within 30 days of implementing the change.

Sec. 1200.23 Vouchers and project agreements

Each State shall submit official vouchers for total expenses

incurred to the Approving Official. Copies of the project agreement(s)

and supporting documentation for the vouchers, and any amendments

thereto, shall be made available for review by the Approving Official

upon request.

(a) Content of vouchers. At a minimum, each voucher shall provide

the following information for expenses claimed in each program area:

(1) Program Area;

(2) Federal funds obligated;

(3) Amount of Federal funds allocated to local benefit (provided

mid-year (by March 31) and with the final voucher);

(4) Cumulative Total Cost to Date;

(5) Cumulative Federal Funds Expended;

(6) Previous Amount Claimed;

(7) Amount Claimed this Period;

(8) Matching rate (or Special matching writeoff used, i.e., sliding

scale rate authorized under 23 U.S.C. 120(a), determined in accordance

with the applicable NHTSA Order).

(b) Submission requirements. At a minimum, vouchers shall be

submitted to the Approving Official on a quarterly basis, no later than

15 working days after the end of each quarter, except that where a

State receives funds by electronic transfer at an annualized rate of

one million dollars or more, vouchers shall be submitted on a monthly

basis, no later than 15 working days after the end of each month.

Failure to meet these deadlines may result in delayed reimbursement.

Sec. 1200.24 Program income.

(a) Inclusions. Program income includes income from fees for

services performed, from the use or rental of real or personal property

acquired with grant funds, from the sale of commodities or items

fabricated under the grant agreement, and from payments of principal

and interest on loans made with grant funds.

(b) Exclusions. Program income does not include interest on grant

funds, rebates, credits, discounts, refunds, taxes, special

assessments, levies, fines, proceeds from the sale of real property or

equipment, income from royalties and license fees for copyrighted

material, patents, and inventions, or interest on any of these.

(c) Use of program income.--(1) Addition. Program income shall

ordinarily be added to the funds committed to the Highway Safety Plan.

Such program income shall be used to further the objectives of the

program area under which it was generated.

(2) Cost sharing or matching. Program income may be used to meet

cost sharing or matching requirements only upon written approval of the

Approving Official. Such use shall not increase the commitment of

Federal funds.

Sec. 1200.25 Improvement Plan

If a review of the Annual Report required under Sec. 1200.33 of

this part or of other relevant information indicates little or no

progress toward meeting State goals, the Approving Official and State

officials will jointly develop an improvement plan. This plan will

detail strategies, program activities, and funding targets to meet the

defined goals.

Sec. 1200.26 Non-Compliance.

Where a State is found to be in non-compliance with the

requirements of the Section 402 program or with applicable law, the

special conditions for high-risk grantees and the enforcement

procedures of 49 CFR part 18, or the sanctions procedures of part 1206

of this chapter, may be applied as appropriate.

Sec. 1200.27 Appeals.

Review of any written decision by an Approving Official under this

part may be obtained by submitting a written appeal of such decision,

signed by the Governor's Representative for Highway Safety, to the

Approving Official. Such appeal shall be forwarded promptly to the

NHTSA Associate Administrator for State and Community Services or the

FHWA Regional Administrator with jurisdiction over the specific

division, as appropriate. The decision of the NHTSA Associate

Administrator or FHWA Regional Administrator shall be final and shall

be transmitted to the Governor's Representative for Highway Safety

through the cognizant Approving Official.

Subpart D--Closeout

Sec. 1200.30 Expiration of the right to incur costs.

Unless extended in accordance with the provisions of Sec. 1200.31

of this part, the right to incur costs under Section 402 expires on the

last day of the fiscal year to which it pertains. The State and its

subgrantees and contractors may not incur costs for Federal

reimbursement past the expiration date.

Sec. 1200.31 Extension of the right to incur costs.

Upon written request by the State, specifying the reasons therefor,

the Approving Official may extend the right to incur costs for some

portion of the State highway safety program by a maximum of 90 days.

The approval of

[[Page 34405]]

any such request for extension shall be in writing, shall specify the

new expiration date, and shall be signed by the Approving Official. If

an extension is granted, the State and its subgrantees and contractors

may continue to incur costs in accordance with the Highway Safety Plan

until the new expiration date, and the due dates for other submissions

covered by this subpart shall be based upon the new expiration date.

However, in no case shall any extension be deemed to authorize the

obligation of additional Federal funds beyond those already obligated

to the State, nor shall any extension be deemed to extend the due date

for submission of the Annual Report. Only one extension shall be

allowed during each fiscal year.

Sec. 1200.32 Final voucher.

Each State shall submit a final voucher which satisfies the

requirements of Sec. 1200.23(a) of this part within 90 days after the

expiration of each fiscal year, unless extended in accordance with the

provisions of Sec. 1200.31 of this part. The final voucher constitutes

the final financial reconciliation for each fiscal year.

Sec. 1200.33 Annual report.

Within 90 days after the end of the fiscal year, each State shall

submit an Annual Report. This report shall describe:

(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 the performance measure

will be given for each goal.

(b) The projects and activities funded during the fiscal year,

including an explanation of how each of these projects and activities

contributed to meeting the State's highway safety goals.

Sec. 1200.34 Disposition of unexpended balances.

Any funds which remain unexpended after final reconciliation shall

be carried forward, credited to the State's highway safety account for

the new fiscal year, and made immediately available for use under the

State's new highway safety program, subject to the approval

requirements of Sec. 1200.13 of this part. Carry-forward funds must be

identified by the program area from which they are removed when they

are reprogrammed from the previous fiscal year. Once so identified,

such funds are available for use without regard to the program area

from which they were carried forward, unless specially earmarked by the

Congress.

Sec. 1200.35 Post-grant adjustments.

The closeout of a highway safety program in a fiscal year does not

affect the ability of NHTSA or FHWA to disallow costs and recover funds

on the basis of a later audit or other review or the State's obligation

to return any funds due as a result of later refunds, corrections, or

other transactions.

Sec. 1200.36 Continuing requirements.

The following provisions shall have continuing applicability,

notwithstanding the closeout of a highway safety program in a fiscal

year:

(a) The requirements governing equipment, as provided in

Sec. 1200.21 of this part;

(b) The audit requirements and records retention and access

requirements of 49 CFR part 18.

PART 1205--HIGHWAY SAFETY PROGRAMS; DETERMINATIONS OF EFFECTIVENESS

2. The authority citation for part 1205 continues to read as

follows:

Authority: 23 U.S.C. 402; delegations of authority at 49 CFR

1.48 and 1.50.

3. Section 1205.4 is revised to read as follows:

Sec. 1205.4 Funding requirements.

A State may use funds made available under 23 U.S.C. 402 to support

projects and activities within--

(a) Any National priority program area identified in Sec. 1205.3 of

this part; or

(b) Any other highway safety program area that is identified in the

Highway Safety Plan required under Sec. 1200.10(b) of this chapter as

encompassing a major highway safety problem in the State and for which

effective countermeasures have been identified.

Sec. 1205.5 [Removed]

4. Section 1205.5 is removed.

Issued on: June 23, 1997.

Jane F. Garvey,

Acting Administrator, Federal Highway Administration.

Ricardo Martinez,

Administrator, National Highway Traffic Safety Administration.

[FR Doc. 97-16779 Filed 6-25-97; 8:45 am]

BILLING CODE 4910-59-P