[Federal Register Volume 59, Number 114 (Wednesday, June 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14463]


[[Page Unknown]]

[Federal Register: June 15, 1994]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration
National Highway Traffic Safety Administration

23 CFR Part 1260

[Docket No. 93-8; Notice 4]
RIN 2127-AE52

 

Certification of Speed Limit Enforcement; Revision of Procedures

AGENCY: Federal Highway Administration (FHWA) and National Highway 
Traffic Safety Administration (NHTSA), Department of Transportation.

ACTION: Final rule.

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SUMMARY: This notice amends 23 CFR 1260 by establishing additional 
sanctions against a State having a compliance score exceeding the 
national maximum speed limit (NMSL) compliance score for any 
consecutive year after a year of non-compliance. The purpose of this 
revision is to encourage non-complying States to make efforts to reduce 
their scores in years succeeding any year in which they exceed the NMSL 
compliance score.

EFFECTIVE DATE: July 15, 1994.

FOR FURTHER INFORMATION CONTACT: In FHWA, Julie Anna Cirillo, Chief, 
Information Management and Analysis Branch, 202-366-2170. In NHTSA, J. 
Michael Sheehan, Chief, Police Traffic Services Division, 202-366-4295.

SUPPLEMENTARY INFORMATION:

Background

    The 55 mph NMSL was first instituted in 1974. FHWA and NHTSA have 
shared responsibility for the enforcement of the NMSL. The Intermodal 
Surface Transportation Efficiency Act of 1991 (ISTEA) required the 
Secretary of Transportation to change the regulation governing the 
NMSL. Because of this statutory mandate, FHWA and NHTSA published a 
notice of proposed rulemaking (NPRM) to amend this regulation in the 
Federal Register on January 4, 1993 (58 FR 186).
    ISTEA required that the new rule establish speed limit compliance 
requirements on 65 mph roads, in addition to 55 mph roads, and include 
a formula for determining compliance by the States with such 
requirements.
    On October 22, 1993, NHTSA and FHWA published a final rule in the 
Federal Register (58 FR 54812), which revised the NMSL procedures in 23 
CFR 1260 to provide that the penalty transfer of highway construction 
funds to 23 U.S.C. Sec. 402 programs would not exceed the greater of 
(i) one and one-half percent of the construction funds, or (ii) the 
total section 402 apportionment for the applicable fiscal year. A 
subsequent year penalty was not proposed in the NPRM and, therefore, 
was not incorporated into the final rule.
    Some commenters, in response to the NPRM, objected to the absence 
of incentives in the NPRM for States to seek improvement in their NMSL 
compliance scores. One commenter suggested that a subsequent year 
penalty for non-compliance could provide such incentives.
    As adopted, the regulation provided that a non-complying State 
would transfer the same amount of funds year after year, which would 
have a minimal impact, especially in view of the graduated penalty 
categories that were utilized. The agencies therefore published a 
Supplemental Notice of Proposed Rulemaking which was published in the 
Federal Register on October 22, 1993 (58 FR 54832) (the SNPRM) on the 
same day as the final rule (58 FR 54812), to propose to add subsection 
(d) to 23 CFR Sec. 1260.19, which would impose an additional one 
percent penalty on States that failed to comply in successive years. 
This change to the regulation would have the effect of transferring a 
maximum of two and one-half percent of the funds apportioned to the 
State for Federal-aid highways and highway safety construction programs 
under section 104(b) of Title 23, United States Code (other than 
paragraph (5)) to the State's apportionment under 23 U.S.C. 402 for the 
fiscal year.

    Under the SNPRM, the maximum amount would be transferred if such 
State (1) was in the highest penalty category pursuant to 
Sec. 1260.19(c) (i)-(iv) in the immediately previous fiscal year and 
(2) did not improve its score in the current fiscal year so as to be 
within the range of scores for the applicable second highest penalty 
category established in Sec. 1260.19(c) (i)-(iv). A non-complying State 
could avoid the additional one percent penalty transfer if it improved 
its score into a lower penalty category. Such a State would then be 
subject only to the amount of penalty for that category under 
Sec. 1260.19(c). If a non-complying State remained in its former 
penalty category, or had a worse score which moved it into a higher 
category, the State's penalty transfer would be the transfer amount for 
that category plus the additional one percent penalty.

    The agencies also proposed to make a minor revision to 
Sec. 1260.21(c) to clarify that the 23 U.S.C. Sec. 402 apportionment 
amount could be exceeded for successive year penalty transfers.

Discussion of Comments

    The agencies received responses from eleven commenters. Some of the 
comments concerned matters that were not specifically related to the 
subsequent year penalty issue and had been resolved in the final rule 
published on October 22, 1993. For example, comments from the Michigan 
State Police, the Department of California Highway Patrol and the 
Illinois Department of Transportation opposed altogether the imposition 
of economic sanctions. These commenters expressed the belief that these 
sanctions are counterproductive and misdirect excessive attention to 
speed compliance issues. As the agencies explained in their October 22, 
1993 final rule, the requirement that sanctions be imposed to encourage 
speed limit control on NMSL roadways is statutorily mandated.

    Similarly, Advocates for Highway and Auto Safety (Advocates) and 
the Michigan State Police recommended that transferred funds should be 
designated for a limited number of purposes. The agencies had proposed, 
in the January 3, 1993 NPRM that transferred funds would be used 
principally for speed limit enforcement, but decided in the October 
1993 final rule, for the reasons described therein, not to specify the 
use of funds for speed limit enforcement or any other specific highway 
safety program.

    The Michigan State Police also made a number of suggestions 
regarding the speed compliance criteria to be used to determine whether 
States would be subject to penalties. For example, Michigan recommended 
that the nationwide compliance threshold be revised to reflect the 85th 
percentile speed, that no transfer should take place if a State's fatal 
accident rate is below the national average, and that the agencies 
consider whether a State's noncompliance rate contributed to the 
State's fatality rate. Persons interested in reviewing a full 
discussion regarding the speed compliance criteria that the agencies 
decided to adopt, and the reasons for this decision, should read the 
October 22, 1993 final rule.

    Among the commenters responding to the issues raised by the SNPRM, 
the Alaska Department of Public Safety, the California Highway Patrol, 
the Indiana Department of Transportation, the Nevada Department of 
Transportation and others opposed additional penalties for successive 
year non-compliance. The Virginia State Police questioned the use of 
the words ``improvement incentive'' to describe what the agencies had 
proposed in the SNPRM. These commenters argued that the final rule had 
already gone too far, and that additional sanctions were unnecessary 
and inappropriate.

    The National Association of Governors' Highway Safety 
Representatives (NAGHSR) commented that the SNPRM was necessary to 
prevent States from being terminally out of compliance, and Advocates 
said the SNPRM didn't go far enough to penalize non-complying States.

    The Indiana Department of Transportation, the Alaska Department of 
Public Safety and the Virginia State Police commented that additional 
funding sanctions would only serve to pit State road construction 
departments against the various State safety agencies.

Amount of Transfer and Section 402 Apportionment

    The Department of California Highway Patrol, NAGHSR, the New York 
State Police and Advocates for Highway and Auto Safety had various 
views of the Congressional intent concerning the amount of the transfer 
to the section 402 apportionment being used as an additional penalty 
for successive year NMSL non-compliance. The Nevada Department of 
Transportation and others stated that a transfer of too much money 
could overburden and render ineffective a State's highway safety 
program.

    Advocates proposed that the imposition of additional penalties 
should not be limited to successive year non-compliance. They 
recommended additional funds transfer penalties for any subsequent year 
non-compliance, and suggested that the penalties should accumulate, up 
to a maximum of ten percent of a State's Federal highway construction 
funds apportioned under 23 U.S.C. Sec. 104(b). The California Highway 
Patrol commented that the preamble to the SNPRM seemed to indicate that 
the successive year sanctions would not accumulate, but expressed 
concerned that the proposed regulatory language could be read to 
provide for a penalty that exceeds two and one-half percent and 
requested clarification on this issue.

    As explained in the SNPRM, section 1029(c)(1)(A) of ISTEA provides 
``* * * for the transfer of apportionments under section 104(b) of 
Title 23, United States Code (other than paragraph (5)), if a State 
fails to enforce speed limits in accordance with this section, [and the 
implementing regulation].'' However, the legislation did not specify 
the amount of the apportionments to be transferred.

    The House bill had provided that the amount to be transferred would 
range from one to five percent of the designated apportionments for the 
first year of non-compliance and from two to ten percent for two or 
more consecutive years of non-compliance. The amounts were to be 
transferred to the highway safety grant programs authorized under 23 
U.S.C. Sec. 402. The Senate bill did not provide for a transfer of 
apportionments. In adopting the House's transfer penalty without the 
House language pertaining to amounts, the conferees included the 
following statement on page 328 of the report accompanying the 
conference bill:
    The Conference Substitute applies that same reprogramming 
provision and Secretarial discretion with regard to the
percentage transferred as in the House bill.
    In reviewing the range of transfers in the House bill for the 
purpose of proposing a reasonable amount to be utilized by a non-
complying State, the agencies determined that one and one-half percent 
of the designated apportionment for each State approximated the total 
amount of its 402 program. The NPRM therefore proposed a one and one-
half percent transfer to the section 402 program, with the funds to be 
used principally for speed limit enforcement. In the final rule the 
agencies adopted the one and one-half percent transfer, but decided not 
to specify the use of funds for speed limit enforcement or any other 
specific highway safety program.
    Since the final rule provided additional flexibility to States to 
use the transferred funds for speed enforcement and other highway 
safety activities, the agencies reconsidered their proposal to limit 
the amount transferred, and requested comments in the SNPRM about 
revising the regulation to provide that the amount transferred may 
exceed the total Sec. 402 program fiscal year apportionment in years 
successive to a year in which a State's compliance score is greater 
than the maximum allowable compliance score. The agencies stated that 
this kind of penalty transfer, which would permit an increase to as 
high as two and one-half percent of the funds apportioned for highway 
construction, would more closely follow the intent of the House bill 
for States that fail to comply in successive years.
    As proposed, the agencies have decided to impose an additional one 
percent penalty on any State that is out of compliance and does not 
make sufficient improvement to reduce its penalty in two or more 
consecutive years. The agencies believe that limiting the additional 
penalty to consecutive year non-compliance also closely follows 
Congressional intent.
    The maximum penalty that could be imposed would be two and one-half 
percent of the funds apportioned to the State for Federal-aid highways 
and highway safety construction programs under section 104(b) of Title 
23, United States Code (other than paragraph (5)). The additional one 
percent penalty would not accumulate from year to year.
    Based on the arguments of some of the commenters regarding the 
amount of money that may be meaningfully spent on highway safety in any 
given year, the agencies have decided that the transferred funds in any 
fiscal year shall not exceed one and one-half times the total section 
402 apportionment for that fiscal year. Increasing the penalty beyond 
this amount for subsequent year non-compliance could overwhelm any 
State's section 402 budget.
    For example, if the penalty were not subject to a limitation, 
States like Connecticut and Wyoming could be subject to withholdings 
that amount to as much as 2.2 and 2.3 times their section 402 budget, 
respectively (based on fiscal year 1992 funding levels). By limiting 
the amount of the penalty to one and one-half times the State's section 
402 apportionment, the maximum subsequent year penalty for these States 
would be 1.7 percent of highway construction fund apportionments and 
1.6 percent, respectively (based on fiscal year 1992 funding levels). 
In order to avoid penalty funding levels that cannot be effectively 
spent on safety programs, the agencies have amended Sec. 1260.21(c) to 
cap any subsequent year penalty transfer at one and one-half times the 
total section 402 apportionment.
    The SNPRM contained a typographical error in the last line of 
Sec. 1260.19(d), which referred to ``(a)(1)'' instead of ``(c)(1).'' 
This notice corrects the error.

Proportionate Penalty Reduction

    The SNPRM solicited comments on whether States should be provided 
some relief from additional penalties if they show a specific amount of 
improvement in their compliance score even though their compliance 
score might not place them in a lower category. NAGHSR and the Illinois 
Department of Transportation generally supported this concept. However, 
other commenters did not express opinions about this approach. The 
Department of California Highway Patrol proposed Federal-State 
negotiations rather than a mathematical formula.
    However, the agencies prefer a formula which avoids discretionary 
decisions and clearly shows the States what the result of non-
compliance will be.
    After considering an even more graduated penalty strategy, as 
suggested by NAGHSR and the Illinois Department of Transportation, the 
agencies have decided to reject the creation of additional categories, 
particularly since the current range between penalty categories 
approximates only 10 percent of the total score. The agencies have 
neither received nor seen any evidence that additional graduations in 
the categories would make the current scheme more fair, and further 
mathematical complications are therefore unnecessary.

Regulatory Analyses and Notices

    Executive Order 12866 and DOT Regulatory Policies and Procedures; 
NHTSA and FHWA have considered the impact of this rulemaking action 
under E.O. 12866 and the Department of Transportation's regulatory 
policies and procedures. This rulemaking document was not reviewed by 
the Office of Management and Budget under E.O. 12866, ``Regulatory 
Planning and Review.'' This final action has been determined to be not 
``significant'' under the Department of Transportation's regulatory 
policies and procedures. The agencies prepared an addendum to the Final 
Regulatory Evaluation (AFRE) in June, 1993, for the SNPRM, and made it 
available in the public docket. A copy of the Final Regulatory 
Evaluation (FRE) and the AFRE may be obtained by writing to Docket 93-
8, HCC-10, Federal Highway Administration, room 4232, 400 Seventh 
Street SW., Washington, DC 20590.
    The FRE indicates that at least three States (Connecticut, 
Massachusetts and Wyoming) could be subject to the subsequent year 
penalty if they are not able to improve their compliance scores during 
subsequent years. The SNPRM proposed to establish a maximum penalty 
transfer of 2.5 percent for a non-complying State in a subsequent year. 
Under this final rule, any subsequent year penalty cannot exceed one 
and one-half times the 23 U.S.C. 402 apportionment of a non-complying 
State for that fiscal year. Based on fiscal year 1992 funding levels 
and the final rule, the maximum subsequent year penalty for that year 
would be 1.7 percent of highway construction fund apportionments for 
Connecticut, 2.5 percent for Massachusetts, and 1.6 percent for 
Wyoming. There would, of course, be no impact on complying States.
    Regulatory Flexibility Act: NHTSA and FHWA have also considered the 
impacts of this final rule under the Regulatory Flexibility Act. We 
hereby certify that this rule will not have a significant economic 
impact on a substantial number of small entities. The FRE concludes 
that there is no significant impact on small businesses since the 
portion of the highway construction funds going to noncomplying States 
is not lost, but only transferred to highway safety programs. 
Accordingly, the preparation of a Regulatory Flexibility Analysis is 
unnecessary.
    Paperwork Reduction Act: The requirement relating to this proposal, 
that each State must submit speed data and related certification 
information necessary to calculate its compliance score, is considered 
to be an information collection requirement, as that term is defined by 
the Office of Management and Budget (OMB) in 5 CFR part 1320.
    Accordingly, 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 January 31, 1996, with the OMB 
control number 2125-0027. This revision to the regulation contains no 
additional information collection requirement.
    National Environmental Policy Act: The agencies have analyzed this 
action for the purpose of compliance with the National Environmental 
Policy Act and have determined that it does not have a significant 
effect on the human environment.
    Executive Order 12612 (Federalism): This action has been analyzed 
in accordance with Executive Order 12612, concerning Federalism. The 
rule's provisions are likely to affect the allocations of States' 
resources, the way they measure their success in traffic law 
enforcement, relationships among State agencies, and the distribution 
of Federal funds between States' highway construction and safety 
programs. All of these effects may fairly be regarded as Federalism 
impacts. However, the basic requirements of the rule (i.e., the 
potential redistribution of Federal funds) are mandated by statute, so 
the agencies do not have discretion to mitigate these impacts. The 
agencies have carefully considered the comments of State agencies in 
shaping the details of the rule.
    Civil Justice Reform: This change to the regulation does not have 
any preemptive or retroactive effect. It imposes no requirements on the 
States, but rather encourages States to consider enacting and enforcing 
legislation requiring speed limits and speed limit enforcement through 
the potential redesignation of Federal highway construction funds to 
safety programs. Any redesignation of funds would not take place until 
FY 1997. If a non-complying State (1) submits data showing that its 
highway speeds are below certain national levels, and (2) a 
certification from the Governor reporting that the State is enforcing 
the speed limits on public highways in accordance with 23 U.S.C. 154, 
then it shall not be subject to the proposed subsequent year sanction 
which redesignates an additional amount of funds to the State's 
apportionment of safety grant programs. The transfer amount for first 
year non-compliance could be as high as two and one-half percent of a 
State's apportionment for Federal-aid highways and highway safety 
construction programs. However, any subsequent year penalty cannot 
exceed one and one-half times the 23 U.S.C. 402 apportionment of a non-
complying State for that fiscal year. The authorizing legislation for 
the proposed rule 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 other 
administrative proceedings before they may file suit in court.

List of Subjects in 23 CFR Part 1260

    Grant programs--Transportation, Highways and roads, Motor vehicles, 
Reporting and recordkeeping requirements, Speed limit, Traffic 
regulations.

(Catalog of Federal Domestic Assistance Program Number 20.205, 
Highway Planning and Construction. The regulations implementing 
Executive Order 12372 regarding intergovernmental consultation on 
Federal programs and activities apply to this program)

PART 1260--CERTIFICATION OF SPEED LIMIT ENFORCEMENT

    In consideration of the foregoing, 23 CFR 1260 is amended to read 
as follows:
    1. The authority citation for part 1260 continues to read as 
follows:

    Authority: 23 U.S.C. 118, 141, 154, 315 and delegations of 
authority at 49 CFR 1.48 and 1.50.

    2. Paragraph (d) is added to Sec. 1260.19 as follows:


Sec. 1260.19  Effect of failure to certify or to meet compliance 
standards.

* * * * *
    (d) An additional one percent of the funds apportioned to the State 
under 23 U.S.C. 104(b)(1), 104(b)(2), 104(b)(3), 104(b)(4) and 
104(b)(6) shall be transferred pursuant to subsection (b) of this 
section to the State's highway safety grant program fund under 23 
U.S.C. 402 for the fiscal year subsequent to the fiscal year in which 
the State submitted its compliance score if the Secretary determines 
that the State's compliance score calculated pursuant to 
Sec. 1260.15(d) is in the same or a higher penalty category as the 
State's compliance score submitted in the prior fiscal year, as 
provided by paragraphs (c) (1) through (4) of this section.
* * * * *
    3. Section 1260.21 is amended by revising paragraph (c) as follows:


Sec. 1260.21  Penalty reduction and notification of noncompliance.

* * * * *
    (c) The State shall expend any transferred funds pursuant to 
Secs. 1260.19(b) and 1260.19(d) for section 402 programs within that 
State. In no instance shall the transfer under Sec. 1260.19(b) exceed 
the total section 402 apportionment for that fiscal year, prior to any 
penalty reduction, and in no instance shall the total transferred funds 
under Secs. 1260.19(b) and 1260.19(d) exceed one and one-half times the 
total section 402 apportionment for any fiscal year.
* * * * *
    Issued on: June 9, 1994.
Rodney E. Slater,
Administrator, Federal Highway Administration.
Christopher A. Hart,
Deputy Administrator, National Highway Traffic Safety Administration.
[FR Doc. 94-14463 Filed 6-14-94; 8:45 am]
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