Uniform Procedures for State Highway Safety Programs

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

Federal Highway Administration

23 CFR Parts 1200 and 1205

[Docket No. NHTSA-99-6011]

RIN 2127-AH53

Uniform Procedures for State Highway Safety Programs

AGENCY: National Highway Traffic Safety Administration and Federal

Highway Administration, DOT.

ACTION: Final rule.

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SUMMARY: This final rule announces that amendments to the regulation

establishing uniform procedures for

[[Page 40758]]

State highway safety programs, published in an interim final rule, will

remain in effect, with minor changes for clarification in response to

comments. The amendments implemented the provisions of a two-year pilot

highway safety program, providing a more flexible performance-based

system for States to follow in conducting their highway safety

programs.

EFFECTIVE DATE: August 27, 1999.

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

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

the Chief Counsel, 202-366-1834. In FHWA, Daniel Hartman, Office of

Highway Safety, 202-366-2131; Raymond Cuprill, Office of the Chief

Counsel, 202-366-0834.

SUPPLEMENTARY INFORMATION:

A. Background

On June 26, 1997, the National Highway Traffic Safety

Administration (``NHTSA'') and the Federal Highway Administration

(``FHWA'') (``the agencies'') published an interim final rule (62 FR

34397) establishing new procedures governing the implementation of

State highway safety programs conducted under the authority of the

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

changed the submission and approval requirements for State highway

safety plans in the regulation at 23 CFR part 1200, Uniform Procedures

for State Highway Safety Programs, and simplified certain funding

requirements in the regulation at 23 CFR part 1205, Highway Safety

Programs; Determinations of Effectiveness.

Under the provisions of the interim final rule, States assumed a

new role in the planning and direction of their highway safety

programs. In lieu of the earlier regulatory requirement that States

submit comprehensive documents for Federal review and approval, States

were now charged with setting their own highway safety goals,

accompanied by performance measures to chart progress. These new

procedures were based on almost two years of successful experience with

a pilot highway safety program conducted by the agencies during fiscal

years 1996 and 1997. The interim final rule incorporated most of the

pilot program's provisions into its requirements.

The agencies requested comments on the interim final rule from all

interested parties, and provided a 45-day comment period. Thereafter,

because Congress was considering various changes to the Section 402

program in the course of reauthorizing NHTSA and FHWA programs, the

agencies decided to delay responding to comments until after Congress

had completed the reauthorization process. In today's notice, we

respond to the comments received, and issue a final rule.

B. Statutory Requirements

The Section 402 program is authorized under the Highway Safety Act

of 1966 (23 U.S.C. 401 et seq.). It is a formula grant program that was

established to improve highway safety in the States. As a condition of

the grant, the Act provides that the States must meet certain

requirements contained in 23 U.S.C. 402.

Section 402(a) requires each State to have a highway safety

program, approved by the Secretary of Transportation, which is designed

to reduce traffic crashes and the deaths, injuries, and property damage

resulting from those crashes. Section 402(b) sets forth the minimum

requirements with which each State's highway safety program must

comply. For example, the Secretary may not approve a program unless it

provides that the Governor of the State is responsible for its

administration through a State highway safety agency which has adequate

powers and is suitably equipped and organized to carry out the program

to the satisfaction of the Secretary. Additionally, the program must

authorize political subdivisions of the State to carry out local

highway safety programs and provide a certain minimum level of funding

for these local programs each fiscal year. The enforcement of these and

other continuing requirements is entrusted to the Secretary and, by

delegation, to the agencies.

When it was originally enacted in 1966, the Highway Safety Act

required the agencies to establish uniform standards for State highway

safety programs to assist States and local communities in implementing

their highway safety programs. Eighteen such standards were established

and, during the early years, the Section 402 program was directed

principally toward achieving State and local compliance with these

standards. Over time, State highway safety programs matured and, in

1976, the Highway Safety Act was amended to provide for more flexible

implementation of the program. States were no longer required to comply

with every uniform standard or with each element of every uniform

standard. As a result, the standards became more like guidelines for

use by the States, and management of the program shifted from enforcing

standards to using the standards as a framework for problem

identification, countermeasure development, and program evaluation. In

1987, Section 402 of the Highway Safety Act was amended, formally

changing the standards to guidelines.

Another amendment to the Highway Safety Act required the Secretary

to determine, through a rulemaking process, those programs ``most

effective'' in reducing crashes, injuries, and deaths, taking into

account ``consideration of the States having a major role in

establishing (such) programs.'' The Secretary was authorized to revise

the rule from time to time. In accordance with this provision, the

agencies have identified, over time, nine such programs, the ``National

Priority Program areas'' (see discussion under Section C.2, below).

Until recently, the Act provided that only those programs

established under the rule as ``most effective'' in reducing crashes,

injuries and deaths (i.e., the National Priority Program areas) would

be eligible for Federal financial assistance under the Section 402

program. However, the Transportation Equity Act for the 21st Century

(Pub. L. 105-178) (TEA-21), enacted June 9, 1998, amended those

provisions. The new requirement allows for periodic discretionary

rulemaking to identify programs that are ``highly effective'' in

reducing crashes, injuries, and deaths, and requires only that States

``consider'' these highly effective programs when developing their

highway safety programs.

C. Regulations Prior to the Interim Final Rule

In recent years, the agencies have administered the Section 402

program in accordance with implementing regulations, the Uniform

Procedures for State Highway Safety Programs (23 CFR part 1200) (``Part

1200'') and Highway Safety Programs; Determinations of Effectiveness

(23 CFR part 1205) (``Part 1205''). Part 1200 sets forth requirements

concerning submission and approval of State highway safety plans,

apportionment and obligation of Federal funds, and financial accounting

and program administration. Part 1205 identifies the National Priority

Program areas and provides for the funding of program areas.

1. Part 1200

Part 1200, portions of which were amended by the interim final

rule, contained detailed procedures governing the content and Federal

approval of a ``Highway Safety Plan,'' to be submitted each fiscal year

by the States. In particular, prior to its amendment, the regulation

required

[[Page 40759]]

each State's highway safety plan to contain a ``problem identification

summary,'' highlighting highway safety problems in the State,

describing countermeasures planned to address those problems, and

providing supporting statistical crash data. Additionally, in the

highway safety plan, the State was required to describe and justify

program areas to be funded, discuss planning and administration and

training needs, and provide certain certifications and financial

documentation.

Part 1200 required Federal approval for proposed expenditures

within program areas, both under the State's initially submitted

Highway Safety Plan and subsequently for any proposed changes in

expenditures exceeding ten percent of the total amount in a given

program area. Federal approval was also required, on a year-by-year

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

years. Such approval was conditioned on a showing that the project had

demonstrated great merit or the potential for significant long-range

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

The regulation provided the agencies with broad discretion to approve,

conditionally approve, or disapprove a highway safety plan or any

portion of the document, and required the States to submit a

comprehensive and detailed annual evaluation report.

2. Part 1205

Part 1205 lists each highway safety program area that the agencies

have determined, in accordance with the Highway Safety Act, to be most

effective in reducing crashes, injuries, and deaths. The agencies have,

through a series of rulemaking actions over the years, identified these

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

currently nine National Priority Program Areas: Alcohol and Other Drug

Countermeasures; Police Traffic Services; Occupant Protection; Traffic

Records; Emergency Medical Services; Motorcycle Safety; Roadway Safety;

Pedestrian and Bicycle Safety; and Speed Control.

Prior to its amendment by the interim final rule, part 1205

provided for expedited funding approval of programs developed in any of

the National Priority Program Areas. Part 1205 provided that programs

developed under other program areas could also be funded, but they were

subject to a more detailed approval process. As further described under

Section E, below, the amendments that the interim final rule made to

part 1205 provided States with more flexibility with regard to their

ability to fund these latter programs.

D. The Pilot Program

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

have developed the expertise necessary to conduct effective highway

safety programs. Just as Congress earlier recognized the desirability

of changing the mandatory standards to more flexible guidelines, the

agencies recognized that the time was right to provide the States with

added flexibility to set their own goals, define their own performance

measures, and determine the best means of accomplishing their goals,

subject to the existing statutory parameters requiring overall program

approval.

Consistent with efforts to relieve burdens on the States under the

President's regulatory reform initiative, the agencies took the first

step in providing more flexibility for the States by establishing a

pilot program in fiscal years 1996 and 1997 for highway safety programs

conducted under section 402. The pilot program was announced in the

Federal Register on September 12, 1995 (60 FR 47418) for fiscal year

1996 and on September 6, 1996 (61 FR 46895) for fiscal year 1997.

1. Procedures

The pilot program waived the requirement for State submission and

Federal approval of the Highway Safety Plan required under then-

existing part 1200 for those States that chose to participate, and

instead provided for a benchmarking process by which the States set

their own highway safety goals and performance measures. Under the

benchmarking process, participating States were required to submit a

planning document and a benchmark report, rather than the previously

required highway safety plan. The planning document, which described

how Federal funds would be used, consistent with the guidelines,

priority areas, and other requirements of Section 402, was required to

be approved by the Governor's Representative for Highway Safety.

The States were required to submit the benchmark report to the

agencies for approval by August 1 prior to the fiscal year for which

the highway safety program was to be conducted. The benchmark report

was required to contain three components: a Process Description;

Performance Goals; and a Highway Safety Program Cost Summary. Under the

Process Description component, States were required to describe the

processes used to identify highway safety problems, establish

performance goals, and develop the programs and projects in their

plans. Under the Performance Goals component, States were required to

identify highway safety performance goals (developed through a problem

identification process) and to identify performance measures to be used

to track progress toward each goal. Under the Highway Safety Program

Cost Summary component, States submitted HS Form 217, a financial

accounting form that has been a longstanding requirement under part

1200.

The focus of the Federal review and approval process under the

pilot program shifted away from a review of the substantive details of

the program, on a project-by-project basis, as required under then-

existing part 1200. Instead, the process focused on verification that

the State had committed itself, through a performance-based planning

document approved by the Governor's Representative for Highway Safety

and a benchmark report, to a highway safety program that targeted

identified State highway safety concerns. The agencies waived the

requirement under then-existing part 1200 that States seek approval for

changes in expenditures exceeding ten percent in a given program area.

Under the pilot program, the requirements governing the annual

evaluation report were changed to accommodate the shift to a

performance-based process. States were required to report on their

progress toward meeting goals, using performance measures identified in

the benchmark report, and the steps they took toward meeting goals.

States were also required to describe State and community projects

funded during the year.

In other respects, the pilot program followed the requirements of

then-existing part 1200 without change. Provisions concerning the

submission of certifications and assurances, the apportionment and

obligation of Federal funds, financial accounting (including submission

of vouchers, program income, and the like), and the closeout of each

year's program continued to apply to the pilot program.

2. Experience Under the Pilot Program

Over the two-year period during which the pilot program was in

place prior to issuance of the interim final rule, it received

increasing support from States. Sixteen States participated in the

pilot program during fiscal year 1996, and 41 States, the District of

Columbia, Puerto Rico, the Virgin Islands, and the Commonwealth of the

Northern Mariana Islands participated during fiscal year

[[Page 40760]]

1997. Most participating States expressed enthusiasm about the goal-

setting process used in the pilot program, and felt a greater sense of

``ownership'' of their highway safety programs under the pilot

procedures. Prior to their participation in the pilot program, many of

these States already had adopted performance measures in their State

budgeting and management processes, which eased the transition for

these States to a performance-based process under the pilot program.

The majority of participating States reported that the pilot program

procedures resulted in reduced Federally-imposed burdens and increased

State flexibility in administering their highway safety programs.

In December 1996, the 16 States that participated in the pilot

program during its initial year submitted their annual reports

regarding their highway safety accomplishments under the pilot program.

Overall, the reports revealed improvements in data systems, goal-

setting, and project selection. They also reported reductions in costs

and time expended for the administration of the program, and a

broadening of highway safety partnerships. In addition, the reports

revealed that pilot States were making steady progress toward achieving

established goals. Experience during that initial year confirmed that

the pilot procedures resulted in the implementation of successful

highway safety programs, consistent with national highway safety goals

and Federal goals for regulatory reform, streamlining procedures, and

improvements in performance.

In January 1997, during the second year of the pilot program, the

agencies held a meeting that was attended by representatives of all

States and territories. State representatives identified concerns and

offered suggestions in an effort to make further improvements in the

pilot program procedures. States generally expressed a desire for more

flexibility, such as by extending the due date for submission of

application documents, permitting a multi-year planning process, and

accommodating short and long range goals in the goal-setting process.

States generally agreed that, if progress toward meeting goals did not

occur in a State, both State and Federal officials should cooperate to

develop an improvement plan for the State.

E. Interim Final Rule

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

years of operation, the agencies published an interim final rule on

June 26, 1997, revising the regulations governing State highway safety

programs to implement the pilot procedures. The interim final rule also

addressed issues raised during the January 1997 meeting. It extended

the due date for submission of application documents from August 1 to

September 1 and accommodated the States' desire for flexibility to plan

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

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

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

The interim final rule replaced the previously-existing procedures

under part 1200 governing the preparation, submission, review, and

approval of State Highway Safety Plans (discussed generally under

Section C.1, above), with new procedures modeled after those used in

the pilot program. The interim final rule required the States to submit

information detailing their highway safety programs in the same format

as required under the pilot program, but made some adjustments to the

pilot program procedures, as noted above.

In addition, the interim final rule changed some of the terminology

used in the pilot program. The more descriptive terms ``performance

plan'' and ``highway safety plan'' replaced the terms ``benchmark

report'' and ``planning document,'' which were used in the pilot

program to describe State highway safety goals and planned activities.

However, the functions of these documents remained essentially

unchanged from those existing under the pilot program, as described

under Section D, above. In the preamble to the interim final rule, the

agencies explained that States were free to prepare their Performance

Plan and Highway Safety Plan as comprehensive documents which also

included goals and activities for highway safety programs other than

the Section 402 program. The agencies explained that, in such cases,

the Highway Safety Plan should identify those programs or activities

funded from other sources in a separate section or should identify them

clearly in some other manner.

The interim final rule changed the nature of the Federal approval

process, consistent with the procedures used during the pilot program.

Instead of approving a highway safety plan based on a project-by-

project justification, the interim final rule provided for review of

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

had developed a goal-oriented highway safety program that was approved

by the Governor's Representative for Highway Safety, and that

identified the State's highway safety problems, established goals and

performance measures to effect improvements in highway safety, and

described activities designed to achieve those goals.

The interim final rule left unchanged the requirement that States

must submit an annual report. However, the contents of the annual

report changed from those required under the previously-existing part

1200. Under the interim final rule, the States were required to

describe their progress in meeting State highway safety goals, using

performance measures identified in the Performance Plan, and the

projects and activities funded during the fiscal year. They also were

required to include in these reports an explanation of how these

projects and activities contributed to meeting the State's highway

safety goals. No substantive changes were made to provisions relating

to the apportionment and obligation of Federal funds, financial

accounting, and the like.

Finally, the interim final rule made conforming changes to the

funding procedures for National Priority Program Areas and other

program areas contained in Part 1205. These changes allowed States to

pursue activities in program areas identified either by the agencies as

National Priority Program areas or by the States as State priorities.

In pursuing activities under the latter category, States were given

more flexibility in the processes they could follow to identify program

areas that were State priorities, and the level of Federal oversight

was reduced.

A more detailed discussion of the changes appears in the preamble

to the interim final rule (62 FR 34397).

F. Comments

The interim final rule solicited comments from all interested

parties, and noted that the agencies would respond to all comments and,

if appropriate, amend the provisions of the rule. The agencies received

comments from State agencies in Florida, Maryland, Michigan, and

Washington and from two organizations, the National Association of

Governors' Highway Safety Representatives and Advocates for Highway and

Auto Safety.

1. In General

Many commenters expressed general approval of the interim final

rule. In the State of Washington, the Traffic Safety Commission and the

Department of Transportation both supported the interim final rule

without change. The Traffic Safety Commission lauded the ``change in

attitude and method,'' adding that it was certain to improve the

already good working relationship

[[Page 40761]]

between NHTSA and the States. The Michigan Office of Highway Safety

Planning (Michigan) identified the flexibility for quick response to

changing issues, the outcome-based evaluation (which it noted was

already being performed at the State level), the opportunity to offer

programming flexibility to local communities, and the reduction in

paperwork as welcome results of the interim final rule. The National

Association of Governors' Highway Safety Representatives (NAGHSR)

expressed strong support for the rule, commending the agencies for

reflecting State concerns and codifying the flexibility desired by

States in the interim final rule. NAGHSR was especially supportive of

the change in submission date for the State's application documents

from August 1 to September 1 of the fiscal year, stating that this

would provide the States with time to obtain additional input from

their safety constituencies and to refine their performance plans.

2. Specific Issues

Commenters raised a number of specific issues, all related to the

interim final rule's changes to part 1200. The agencies received no

comments concerning the interim final rule's changes to part 1205.

a. Federal Approval Procedures

The Florida Department of Transportation (Florida) sought

clarification of Federal approval procedures. Noting the discussion

that Federal approval of the annual Highway Safety Plan was no longer

required, Florida asked why the interim final rule contained references

to an ``Approving Official'' (Sec. 1200.3), ``delayed approval''

(Sec. 1200.12) if due dates are not met, and a ``letter of Approval''

(Sec. 1200.13).

The statute under which the Section 402 program operates requires

each State to have a highway safety program ``approved by the Secretary

(of Transportation),'' and further specifies certain conditions under

which the Secretary may not approve a program. Consequently, some

approvals continue to be required but, as the agencies explained in the

preamble to the interim final rule, the nature of the Federal approval

process changed. The interim final rule provided that the contents of

the Highway Safety Plan no longer need to be approved on a project-by-

project basis. Rather, the State's highway safety program is to be

reviewed as a whole, to verify that the State has developed a goal-

oriented highway safety program that is approved by the Governor's

Representative for Highway Safety, and that identifies the State's

highway safety problems, establishes goals and performance measures to

effect improvements in highway safety, and describes activities

designed to achieve those goals. The agencies believe that this new

program level approval process was reflected in the interim final rule

without ambiguity. Consequently, the agencies have made no change to

the rule in response to this comment.

b. Financial Reporting

To effect a further reduction in paperwork burdens on State highway

safety offices, Michigan recommended that changes in the allocation of

funds, under Sec. 1200.22, be reported on a quarterly basis rather than

within 30 days of the change.

In the interim final rule, the agencies took the significant step

of removing the requirement for prior approval of changes during

program implementation. The agencies believe that removing the prior

approval requirement, coupled with retention of the monthly reporting

requirement, strikes the appropriate balance between alleviating

burdens to the States and retaining the agencies' ability to monitor,

on an ongoing basis, the expenditure of Federal funds. Consequently,

the agencies have not adopted the suggestion for quarterly reporting of

changes.

Florida noted that the interim final rule prescribes the use of HS

Form 217 for financial reporting, despite the transition by some States

(including Florida) to paperless electronic reporting through NHTSA's

Grant Tracking System. Florida asked which format (i.e., hard copy or

electronic) was intended by the interim final rule.

For many States, use of the electronic Grant Tracking System has

replaced the use of paper forms to report grant finances. However, even

with the electronic system, there is an ``HS 217'' screen for recording

the information concerning allocations of federal and State funds to

specific program areas, which is then transmitted electronically to

NHTSA. This form, either in its electronic or hard copy format, would

meet the requirements of the interim final rule. To clarify this point,

the agencies have included language in appropriate places in the rule

explaining that either HS Form 217 or its electronic equivalent is

acceptable.

c. Goal-Setting and Program Evaluation

Advocates for Highway and Auto Safety (Advocates) submitted lengthy

comments, expressing the view that the interim final rule ``devolves

all essential aspects of the 402 program to state authorities.''

According to Advocates, this more flexible approach will result in the

selection of highly subjective safety program goals, the inability to

assess cost-effectiveness properly, and the submission of State reports

based on ``anecdotal experience and generalized, amorphous

information.'' Advocates questioned whether this approach satisfies the

statutory requirement that State highway safety programs be based on

``uniform guidelines [which] shall be expressed in terms of performance

criteria.''

In support of this concern, Advocates cited the report,

``Evaluation of the section 402 Pilot Process, NHTSA (May, 1997)'' and

the separate reports submitted by the 16 original pilot States.

According to Advocates, the NHTSA report elaborates only on positive

information drawn from the State reports, ignoring the deficiencies.

Among the deficiencies Advocates identified in the State reports are

the lack of substantive information about goals and accomplishments;

and the lack of data, or reliance on old or subjective data, or

brushing aside of contradictory data in efforts to demonstrate progress

toward meeting State goals. Advocates asserted that some State reports

are ``in essence, public relations documents,'' and concluded that if

this continues, most State reports will be of no use in assessing the

status of the individual State programs as well as the national 402

program as a whole. Advocates also asserted that, with a unique goal-

selection process for each State, States might select easily achieved

goals at the expense of safety issues that need to be addressed.

Advocates questioned whether the new approach met the statutory goal of

improving highway safety or provided a credible means for evaluating

the effectiveness of the Section 402 program.

The agencies have described, above, the evolution of the Highway

Safety Act of 1966, from a framework of enforcing standards to using

standards for problem identification, countermeasure development, and

program evaluation, and ultimately to using guidelines as an aid in

fashioning highway safety programs. We have also noted, above, that

since publication of the interim final rule, Congress further amended

the Highway Safety Act, allowing the States to consider highly

effective programs that may from time to time be identified in a rule

by the agency, in lieu of requiring adherence to only those programs

specifically designated as most effective in a rule by the agency. In

short, the statutory framework has moved away from requiring a

centralized, uniform program, with each

[[Page 40762]]

State pursuing a set of common goals. Consequently, we do not agree

with Advocates' criticism that a goal selection process that is unique

to each State overlooks important safety issues. Rather, we believe

that this new process provides States with the additional flexibility

and ability to tailor their programs that was intended by the Congress.

The agencies agree with Advocates that there was variability in the

quality and usefulness of data among the 16 initial annual reports

submitted by the States under the pilot process. This is to be expected

under any new process. However, for the first time, reports began to

address performance goals in highway safety and measures of progress in

reaching those goals. Under the previous procedures, this important

goal-setting and tracking information was largely unavailable. The

agencies fully expect that the process, the data, and the reports will

improve over time (although there will always be a time-lag in the

data). We believe that the annual reports under the new process will

provide an effective means of evaluating progress under the Section 402

program, as more experience is developed. Should this not materialize,

the agencies will consider necessary changes to the reporting process

in a future action. The agencies do not believe that any change to the

rule is necessary at this time to address this comment.

The agencies also do not believe that the concern that States may

select only goals that are easy to achieve, overlooking other important

areas of highway safety, is warranted. In the course of establishing

goals and performance measures, the interim final rule requires a State

to describe in its Performance Plan the problem identification process

followed and the participants in that process. In addition, the State

must issue a public report (the Annual Report) each year. With this

public process, we do not believe that States will address only easily-

achieved goals. A more likely limitation on the goal-setting process

will be the initial absence of effective performance measures and data

for certain problem areas. This limitation should be mitigated over

time by improvement of the performance-based management process and the

data upon which it depends. Consequently, we have made no change to the

rule in response to this comment.

Florida questioned the value of the Annual Report (Sec. 1200.33).

According to Florida, the requirement for an Annual Report (as well as

the requirement for an Improvement Plan, discussed in the next section)

assumes that projects from a Highway Safety Plan can be evaluated

against the State's goals within three months of their completion,

whereas data to support an evaluation are actually not likely to be

available for a year or more after project completion. Florida also

stated that it is unclear from Sec. 1200.10 (Application) whether the

intent is for the State to have short-term or longer-term safety goals

for the program. Florida noted that short term goals exhibit data

availability problems.

The agencies agree with Florida that many projects will not produce

measurable results within the three-month period between the end of the

fiscal year and the due date for submission of the Annual Report.

However, the performance-based process implemented by the interim final

rule recognizes that the Section 402 program is ongoing, as are the

State highway safety programs that it supports. These State programs do

not begin and end with the fiscal year, even if certain projects do.

Progress toward meeting goals in major highway safety program areas

will occur across fiscal years and be attributable to more than one

project or activity. Therefore, in the Annual Report, States should

report the most recent data available concerning each of their

identified performance measures and describe the projects that have

contributed to that progress. The agencies have made changes to the

``Annual Report'' section of the rule to clarify these points. With

respect to Florida's concern about Sec. 1200.10, that section specifies

neither short-term nor long-term goals as requirements in the goal-

setting process. Either approach or a mix of both approaches is

acceptable, as deemed necessary or appropriate by the State. In all

cases, the State should include the most recent and best available data

in the annual report.

d. Improvement Plans

Two commenters expressed opposing views about the value of

Improvement Plans. Florida recommended elimination of the interim final

rule's requirement for an Improvement Plan where a State's broad goals

are not met, reasoning that Federal highway safety funds provide only

``seed money'' for a few projects, and should not be assumed to have an

``immediate quantifiable effect on a statewide problem.'' In contrast,

NAGHSR supported the requirement for joint development of an

Improvement Plan by Federal and State officials where a State has not

made sufficient progress to meet goals (Sec. 1200.25). NAGHSR believed

this approach to be a ``reasonable and prudent one'' if a State fails

to make progress or does not act in good faith in implementing its

plan.

The agencies agree with NAGHSR about the value of Improvement

Plans. Florida's recommendation to eliminate the requirement stems from

concerns about the lack of contemporaneous data to track progress. The

agencies are mindful of these data limitations, and intend to exercise

appropriate restraint in the use of Improvement Plans. For example, it

is not the agencies' intent to require an Improvement Plan if, in a

single year, some of a State's projects or activities do not appear to

``have an immediate quantifiable effect on a statewide problem,'' based

on available data. Rather, an improvement plan would be employed if a

State demonstrates a pattern that indicates little or no progress

toward meeting goals, taking account of all relevant circumstances. The

agencies believe that this approach strikes an appropriate balance in

ensuring that the expenditure of Section 402 funds ultimately results

in measurable traffic safety benefits, and that no changes to the rule

are necessary.

e. Use of the Term ``Highway Safety Plan'

The Office of Traffic Safety of the Maryland State Highway

Administration (Maryland) objected to the agencies' ``preemption'' of

the title ``Highway Safety Plan'' for the program document required

under the Section 402 program. Maryland explained that States have

comprehensive, multi-year plans that set forth goals and strategies for

addressing highway traffic safety problems, and that these State plans

typically are called Highway Safety Plans or Strategic Highway Safety

Plans. In Maryland's view, the Federally-prescribed Highway Safety Plan

under the interim final rule cannot serve as a State's comprehensive

Highway Safety Plan because it does not include goals, objectives,

strategies, and performance measures and it covers only projects and

activities that are supported by Section 402 funds or other Federal

funds. Maryland recommends that the interim final rule be amended to

redesignate the Highway Safety Plan as the ``Implementation Plan.''

In contrast, NAGHSR supported the name changes for the application

documents (i.e., from ``Benchmark Report'' and ``Planning Document'' to

``Performance Plan'' and ``Highway Safety Plan'') , finding them to be

less confusing.

As noted in the preamble to the interim final rule, the familiar

term ``Highway Safety Plan'' was used for convenience, and many of

those most

[[Page 40763]]

involved in the Section 402 program continued to use it even during the

pilot program. The agencies further explained that States were free to

prepare both their Performance Plan and Highway Safety Plan as

comprehensive documents that include goals and activities for highway

safety programs other than the Section 402 Program. (In fact, since the

enactment of the Transportation Equity Act for the 21st Century, Pub.

L. 105-178, implementing regulations for a number of new highway safety

grant programs have included provisions requiring States to document

activities related to these other grant programs in the Highway Safety

Plan.) Moreover, the interim final rule does not preclude a State from

combining the elements of the Performance Plan and the Highway Safety

Plan into one document called a Highway Safety Plan, as long as the

substantive content requirements of the interim final rule are met. The

interim final rule also does not restrict the amount of information or

detail included in the Highway Safety Plan, and does not preclude the

identification in the plan of projects or activities that do not

receive Federal funds. The only requirement is that the source of

funding for other projects or activities be identified, so that the

agencies are able to distinguish clearly the programs for which Section

402 funds are being sought. The agencies have added language to the

rule clarifying that this is permissible. Finally, a State may, for its

own administrative purposes, choose to call the Highway Safety Plan

required under this rule by another name, so long as the document

satisfies the requirements of the rule. In view of the flexibility

afforded by this process, the agencies have made no other change to the

rule in response to these comments.

f. Effect of Interim Final Rule

Florida requested clarification of the discussion in the preamble

to the interim final rule, which described the material as ``guidance''

for 1998 highway safety plans, but noted that ``this regulation is

fully in effect and binding upon its effective date.'' Florida believed

that these statements led to confusion about the status of the interim

final rule.

The Section 402 program is operated in accordance with published

regulations, so that all States will have a clear understanding of the

procedures and requirements that accompany the grant funds. When

referring to the procedures of the interim final rule as providing

``guidance'' to the States, the agencies did not intend to convey that

these procedures were optional or otherwise not fully in effect. As

noted in the preamble to the interim final rule, that document (and

hence the provisions contained therein) became effective and binding

upon publication.

Advocates objected to the publication of an interim final rule to

implement the new process, arguing that dispensing with prior public

notice and comment is permissible only under the most extreme

circumstances, and that no such circumstances existed here.

The agencies previously explained the need to provide prompt

guidance to the States about impending grant procedures. We explained

that States needed this information well in advance of the start of the

fiscal year to which the highway safety program applied in order to

comply with application procedures and to allow sufficient time for

program planning activities. For these reasons, the agencies concluded

that there was good cause for finding that providing notice and comment

in connection with this action was impracticable, unnecessary, and

contrary to the public interest. The agencies noted that the amendments

made by the interim final rule were consistent with the provisions of a

pilot program whose procedures were already known to the States. During

the two years covered by the pilot programs, these procedures were also

announced to the public, in two Federal Register notices (60 FR 47418

and 61 FR 46895). The agencies believe that the decision to issue an

interim final rule was appropriate and in the public interest.

G. Regulatory Analyses and Notices

Executive Order 12612 (Federalism)

We have analyzed this action in accordance with the principles and

criteria contained in Executive Order 12612, and have determined that

it does not have sufficient Federalism implications to warrant the

preparation of a Federalism assessment. This action increases the

flexibility of the States by implementing a performance-based process

under which the States bear the responsibility for setting highway

safety goals, in accordance with their individual needs.

Executive Order 12778 (Civil Justice Reform)

This rule does not have any preemptive or retroactive effect. It

merely revises existing requirements imposed on States to afford States

more flexibility in implementing a grant program. The enabling

legislation does not establish a procedure for judicial review of final

rules promulgated under its provisions. There is no requirement that

individuals submit a petition for reconsideration or pursue other

administrative proceedings before they may file suit in court.

Executive Order 12866 (Regulatory Planning and Review) and DOT

Regulatory Policies and Procedures

We have determined that this action is not a significant regulatory

action within the meaning of Executive Order 12866 or significant

within the meaning of Department of Transportation Regulatory Policies

and Procedures. This rule does not impose any additional burden on the

public, but rather reduces burdens and improves the flexibility

afforded to States in implementing highway safety programs. This action

does not affect the level of funding available in the highway safety

program. Accordingly, neither a Regulatory Impact Analysis nor a full

Regulatory Evaluation is required.

Executive Order 13045 (Protection of Children From Environmental Health

Risks and Safety Risks)

This rule is not subject to Executive Order 13045 because it is not

economically significant as defined in Executive Order 12866 and it

does not concern an environmental, health, or safety risk that may have

a disproportionate effect on children.

Regulatory Flexibility Act

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

seq.), we have evaluated the effects of this action on small entities.

We hereby certify that this action will not have a significant economic

impact on a substantial number of small entities. States are the

recipients of any funds awarded under the Section 402 program.

Accordingly, the preparation of a Regulatory Flexibility Analysis is

unnecessary.

National Technology Transfer and Advancement Act

The National Technology Transfer and Advancement Act of 1995 (15

U.S.C. 272) directs us to use voluntary consensus standards (i.e.,

technical standard concerning materials specifications, test methods,

sampling procedures, and business practices) in regulatory activities

unless doing so would be inconsistent with applicable law or otherwise

impracticable. We have determined that no voluntary consensus standards

apply to this action.

Unfunded Mandates Reform Act

This action does not impose any unfunded mandates under the

Unfunded Mandates Reform Act of

[[Page 40764]]

1995. It would not result in costs of $100 million or more to either

State, local, or tribal governments, in the aggregate, or to the

private sector. Accordingly, neither a written assessment of its costs,

benefits, and other effects nor a consideration of regulatory

alternatives is required.

Paperwork Reduction Act

The requirement relating to this action, that each State must

submit certain documents to receive Section 402 grant funds, is

considered to be an information collection requirement, as that term is

defined by OMB. This information collection requirement has been

previously submitted to and approved by OMB, pursuant to the provisions

of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). The

requirement has been approved through September 30, 2001; OMB Control

No. 2127-0003.

National Environmental Policy Act

We have reviewed this action for the purpose of compliance with the

National Environmental Policy Act (42 U.S.C. 4321 et seq.), and have

determined that it will not have a significant effect on the human

environment.

Regulation Identifier Number

The Department of Transportation assigns a regulation identifier

number (RIN) to each regulatory action listed in the Unified Agenda of

Federal Regulations. The Regulatory Information Service Center

publishes the Unified Agenda in April and October of each year. You may

use the RIN contained in the heading at the beginning of this document

to find this action in the Unified Agenda.

List of Subjects in 23 CFR Parts 1200 and 1205

Grant programs--transportation, Highway safety.

Accordingly, the interim final rule amending part 1205 of title 23

of the Code of Federal Regulations, published at 62 FR 34397, June 26,

1997, is adopted as final without change and the interim final rule

amending part 1200 of title 23 of the Code of Federal Regulations,

published at 62 FR 34397, June 26, 1997, is adopted as final with the

following changes:

1. The authority citation for part 1200 continues to read as

follows:

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

1.48 and 1.50.

2. In Sec. 1200.10, paragraphs (b) and (d) are revised to read as

follows:

Sec. 1200.10 Application.

* * * * *

(b) A Highway Safety Plan, approved by the Governor's

Representative for Highway Safety, describing the projects and

activities the State plans to implement to reach the goals identified

in the Performance Plan. The Highway Safety Plan must, at a minimum,

describe one year of Section 402 program activities (and may include

activities funded from other sources, so long as the source of funding

is clearly distinguished).

* * * * *

(d) A Program Cost Summary (HS Form 217 or its electronic

equivalent), completed to reflect the State's proposed allocations of

funds (including carry-forward funds) by program area, based on the

goals identified in the Performance Plan and the projects and

activities identified in the Highway Safety Plan. The funding level

used shall be an estimate of available funding for the upcoming fiscal

year.

* * * * *

3. In Sec. 1200.13, paragraph (b) is revised to read as follows:

Sec. 1200.13 Approval

* * * * *

(b) The approval letter identified in paragraph (a) of this section

will contain the following statement:

We have reviewed (STATE)'s ____________ fiscal year 19__

Performance Plan, Highway Safety Plan, Certification Statement, and

Cost Summary (HS Form 217), as received on (DATE) ________. Based on

these submissions, we find your State's highway safety program to be

in compliance with the requirements of the Section 402 program. This

determination does not constitute an obligation of Federal funds for

the fiscal year identified above or an authorization to incur costs

against those funds. The obligation of Section 402 program funds

will be effected in writing by the NHTSA Administrator at the

commencement of the fiscal year identified above. However, Federal

funds reprogrammed from the prior-year Highway Safety Program

(carry-forward funds) will be available for immediate use by the

State on October 1. Reimbursement will be contingent upon the

submission of an updated HS Form 217 (or its electronic equivalent),

consistent with the requirements of 23 CFR 1200.14(d), within 30

days after either the beginning of the fiscal year identified above

or the date of this letter, whichever is later.

* * * * *

4. In Sec. 1200.33, paragraphs (a) and (b) are revised to read as

follows:

Sec. 1200.33 Annual Report.

* * * * *

(a) The State's progress in meeting its highway safety goals, using

performance measures identified in the Performance Plan. Both Baseline

and most current level of performance under each measure will be given

for each goal.

(b) How the projects and activities funded during the fiscal year

contributed to meeting the State's highway safety goals. Where data

becomes available, a State should report progress from prior year

projects that have contributed to meeting current State highway safety

goals.

Secs. 1200.14 and 1200.22 [Amended]

In addition to the amendments set forth above, in 23 CFR part 1200,

remove the words ``HS Form 217'' and add, in their place, the words

``HS Form 217 (or its electronic equivalent)'' in the following places:

(a) Section 1200.14(d)(1) and (d)(2); and

(b) Section 1200.22.

Issued on: July 23, 1999.

Kenneth R. Wykle,

Administrator, Federal Highway Administration.

Ricardo Martinez,

Administrator, National Highway Traffic Safety Administration.

[FR Doc. 99-19321 Filed 7-27-99; 8:45 am]

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