[Federal Register Volume 65, Number 50 (Tuesday, March 14, 2000)] [Rules and Regulations] [Pages 13679-13683] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 00-6134] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 23 CFR Part 1340 [Docket No. NHTSA-98-4280] RIN 2127-AH46 Uniform Criteria for State Observational Surveys of Seat Belt Use AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This document adopts uniform criteria for State seat belt use surveys, previously published as an interim final rule, with one clarifying change in response to a comment. The criteria are used by the States to determine their seat belt use rates under a new Federal grant program, which directs the Secretary of Transportation to allocate funds to States whose seat belt use rates meet certain requirements, based on measurement criteria established by the Secretary. EFFECTIVE DATE: April 13, 2000. FOR FURTHER INFORMATION CONTACT: The following persons at the National Highway Traffic Safety Administration, 400 Seventh Street, SW, Washington, D.C. 20590: For program issues, John F. Oates, Jr., State and Community Services, NSC-01, (202) 366-2121; For legal issues, John Donaldson, Office of the Chief Counsel, NCC-30, (202) 366-1834. SUPPLEMENTARY INFORMATION: A. Background Section 1403 of the Transportation Equity Act for the 21st Century (Pub. L.105-178) added a new Section 157 to Title 23 of the United States Code (replacing a predecessor Section 157 ). The new provision (hereafter, Section 157) authorizes a State seat belt incentive grant program covering fiscal years 1999 through 2003. Under this program, the Secretary of Transportation is directed to allocate funds to the States, beginning in fiscal year 1999, based on their seat belt use rates. Specifically, Section 157 requires the Secretary to allocate funds to States that achieve a seat belt use rate in the preceding two years that is higher than the national average use rate or, failing that, a seat belt use rate that is higher than the highest seat belt use rate achieved by the State during specified previous calendar years. (Section 157 contains another provision for allocation of grant funds, based on innovative projects, but that provision is not addressed in this rule.) Beginning with calendar year 1998, Section 157 requires States to measure seat belt use rates following criteria established by the Secretary, to ensure that the measurements are ``accurate and representative.'' In accordance with that mandate, NHTSA published an interim final rule on September 1, 1998, the Uniform Criteria for State Observational Surveys of Seat Belt Use, setting forth criteria for States to follow in determining their seat belt use rates under this program. [[Page 13680]] B. The Interim Final Rule The interim final rule required States to conduct surveys of seat belt use each calendar year, starting with calendar year 1998, in order to be eligible for an allocation of funds under Section 157. The surveys were to meet certain minimum requirements, many of which are identical to those required under a predecessor document, the Guidelines for State Observational Surveys of Safety Belt and Motorcycle Helmet Use (57 FR 28899, June 29, 1992, now rescinded), in connection with the grant program authorized under 23 U.S.C. 153. For example, the interim final rule continued the requirement that surveys have a probability-based design; that data be collected from direct observation of seat belt use; that the relative error of the seat belt use estimate not exceed five percent; that counties or other primary sampling units totaling at least 85 percent of the State's population be eligible for inclusion in the sample; and that all daylight hours for all days of the week be eligible for inclusion in the sample. The interim final rule also continued the requirement that all sample design, data collection, and estimation procedures be well documented. In addition to the survey requirements retained from the Section 153 grant program, the interim final rule imposed new requirements to ensure consistency with the statutory provisions of Section 157. For example, Section 157 requires the determination of seat belt use rate to be based on ``passenger motor vehicles,'' a category that includes passenger cars, pickup trucks, vans, minivans, and sport utility vehicles. Consequently, the interim final rule required that measurements include the seat belt use rate of occupants of all of these types of vehicles. In addition, because Section 157 does not include child restraint devices within the definition of seat belts, the interim final rule excluded child restraints from the survey observation requirement. Finally, because Section 157 requires that measurements of seat belt use rates be ``accurate and representative,'' the interim final rule imposed or clarified certain other requirements. For example, the interim final rule made clear that the surveys must include observation of both drivers and front seat outboard passengers, and that measurements of seat belt use must be taken completely within the calendar year for which the seat belt use rate is reported. Beginning with surveys conducted during calendar year 1999, the interim final rule required that both in-state and out-of-state vehicles be counted. This latter requirement was phased in to provide the States flexibility, in view of time constraints associated with the late enactment of TEA-21. The agency explained that each of these requirements was intended to ensure consistency and fairness in the allocation of funds. The first seat belt use surveys conducted in accordance with the procedures of the interim final rule took place in calendar year 1998. On January 28, 1999, the agency held a meeting in Arlington, Texas, attended by State highway safety officials. The purpose of the meeting was to discuss day-to-day concerns related to State highway safety programs, including issues related to the seat belt use surveys the States had recently conducted under Section 157. During that meeting, States raised a variety of issues or concerns about the requirements and implementation of the seat belt survey criteria. For example, some States expressed concern that, in the course of implementing the survey criteria, the agency might limit survey observations to moving traffic, thereby impeding the States' ability to gather demographic information for successful problem identification. Other States were concerned that the agency might limit observations to stationary or slow-moving vehicles at controlled intersections, forcing some States to redesign survey sampling frames. Many States said that it would be desirable to include all roadway types in the survey sampling frame, but other States pointed out that some States might need considerable technical assistance to select an appropriate sample of local roads and properly weight the observations made on those roads. There was general support for allowing the exclusion of counties or other sampling units that comprise up to 15 percent of the State's population, but a few States preferred to include all geographic subdivisions in their sampling frames. All States were concerned about ``fairness'' in implementing the survey requirements and ``comparability'' of survey results among States, with some recommending a single uniform survey design or identical software for data analysis and others suggesting that absolute uniformity was too rigid, and that preserving State flexibility was important. The public comment period for the interim final rule was due to expire on January 29, 1999, one day after the Texas meeting. However, in view of the discussions that arose during that meeting, the agency announced at the meeting that it would extend the comment period to allow States to express these concerns in writing. Thereafter, the agency extended the comment period until March 1, 1999 (64 FR 8714, February 23, 1999). Today's final rule is limited in scope to the methodological requirements for State observational surveys. In a separate interim final rule published jointly by NHTSA and the Federal Highway Administration on October 29, 1998 (63 FR 57904), the agencies provided details concerning the procedures that would be followed in evaluating seat belt use rate information, determining the national average seat belt use rate, and allocating funds. We will address any comments to that interim final rule in a separate action, and publish a final rule in the near future. C. Comments The interim final rule solicited comments from interested parties, and noted that the agency would respond to all comments and, if appropriate, amend the provisions of the rule. The agency received comments from State agencies in Oregon, New York, Minnesota, and Michigan and from Advocates for Highway and Auto Safety. 1. In General Commenters were already familiar and comfortable with many of the survey provisions, because they were continued from the old Section 153 grant program. Commenters were also generally supportive of the new survey provisions introduced as a result of the Section 157 program. These new survey provisions include the requirement to observe all passenger vehicles (including cars, pickup trucks, vans, and sport utility vehicles), count both the driver and the front seat outboard passenger, include out-of-state vehicles (beginning in 1999); conduct all survey observations within the calendar year; and count only seat belt use (not child seat use). Commenters differed most on the desirability of strict uniformity in designing and conducting the surveys and on sampling methods, issues that had arisen at the Texas meeting. Specific comments are addressed below. 2. Single Survey Design Two commenters believed that uniformity of the surveys was of critical importance, to ensure comparability among States. The Michigan Department of State Police (Michigan) suggested that NHTSA contract to develop and administer a single survey design for use by all the States, adding that comparability would best be assured if the survey included all elements needed [[Page 13681]] by States for problem identification. Michigan also thought that a national contract for data collection would address the need for consistent training of the data collection observers. However, Michigan stopped short of endorsing the ``suggestion'' (presumably the suggestion advanced by some States at the Texas meeting) for all States to use the same software for data analysis, reasoning that the complexities of the analysis should be left to the discretion of the analysts. The Minnesota Department of Public Safety (Minnesota) recommended that NHTSA designate a single company or organization as the only entity approved to design a survey, to ensure exact uniformity. Minnesota further suggested that NHTSA or a contractor conduct all the State surveys. Alternatively, if the approach of a single entity were not adopted, Minnesota recommended that NHTSA expand the survey criteria to include the ``specifics discussed at the Texas meeting'' (presumably a reference to discussions about road-type sampling frames, geographic considerations, and the like), reasoning that the more ``specific'' and ``detailed'' the criteria, the more uniform the surveys would be. In contrast, the New York Department of Motor Vehicles (New York) believed that the survey criteria were appropriate without change, affording the States the flexibility to accommodate differences in information systems and geography. New York stated that, just as there was no single ``true or accurate'' seat belt use rate, due to the dynamic nature of the highway system, there was also no ``perfect or singular'' statistical method to arrive at an estimate, and that survey methodologies should be determined based on whether they were appropriate for the situation and consistent with core guidelines, rather than part of a ``one size fits all'' philosophy. In New York's view, ``any further attempts to `level the playing field' were misguided,'' as ``[n]ational consistency and comparability will come with time, regardless of further design changes.'' The agency agrees with Michigan and Minnesota that it would be desirable for seat belt use surveys to be uniformly designed and conducted. However, we decline to adopt the suggestion for a NHTSA contractor to conduct the surveys, or for a single survey design for use by all the States. Section 157 requires seat belt use rates to be measured and submitted by the states, following published criteria to ensure that the measurements are accurate and representative. This statutory requirement is inconsistent with centralized Federal operation of the survey process, but recognizes the importance of providing guiding criteria to the States to improve the value of survey results. With the publication of the interim final rule, the agency sought to balance the need for reliable survey data with the need to afford States flexibility in the conduct of the surveys, in view of the significant geographic and demographic differences they face. The agency continues to believe that this careful balancing of reliable survey data and flexibility is important. Consequently, we have made no change to the rule. (Further discussion of the issue of survey uniformity appears under Sections C.3 and C.4 below.) 3. Major and Local Roads Three commenters thought that a mix of major and local roads should be sampled in the State surveys. Advocates for Highway and Auto Safety (Advocates) recommended that the survey criteria specifically require a minimum number of observations to be conducted in rural, suburban, and urban areas, to ensure a representative sample based on geographic differences. Minnesota recommended requiring observations on both major and local roads, with the probability of selection based on vehicle miles traveled. Michigan noted that an accurate estimate of seat belt use on all roads in a State depends on sampling probabilities consistent with the distribution of road types, but interstate comparability of data depends on use by all States of the same criteria for selecting road segments for observation (rather than on the relative proportion of road miles or vehicle miles traveled on major and local roads). NHTSA does not believe that requiring a specified minimum number of observations to be conducted in rural, suburban, and urban areas would result in a more ``representative'' sample, as Advocates suggests, as it would not take into account the actual distribution of these road types in a State. However, the alternative of basing sampling probabilities on the distribution of road types (or on vehicle miles traveled on different road types), as Minnesota and Michigan suggest, is problematic. Many States do not possess complete inventories of all roads or of vehicle miles traveled on residential streets or other local non-arterial roads, a point that was confirmed by participants at the January 28 meeting in Texas. In order to pursue a survey approach based on distribution of road types, States would need to develop such inventories, at significant cost, introducing another layer of procedures in an already complex process. Moreover, state-to-state variations in inventory methodologies could further detract from the goal of uniformity. In NHTSA's view, requiring specified road types to be included in the surveys would not substantially affect the final State estimate of seat belt use, and the added burden to the States is not justified. Therefore, we decline to modify the criteria to impose a requirement to specify the inclusion of road types. However, States may elect to conduct surveys that include a mix of road types under the existing procedures, as long as they adhere to the principles of random sampling required in the survey criteria. 4. Moving Traffic and Controlled Intersections Michigan supported the observation of seat belt use at controlled intersections, to allow the collection of demographic data. Minnesota recommended that the criteria allow observation of moving traffic, and explained that if only controlled intersections were allowed, the majority of its rural roadway miles would not be eligible for observation. However, Minnesota also stated that it did not want its observers to guess the age-group, sex, or other demographic characteristics of vehicle occupants. (Presumably, although unstated in its comments, Minnesota was referring to the difficulty of making accurate demographic observations in moving vehicles, a subject of discussion at the Texas meeting. The agency concludes, from the totality of Minnesota's comments, that the State favors survey criteria that allow for observation of both moving traffic and stopped traffic at controlled intersections.) The agency is aware that some States collect demographic data during their seat belt use surveys, to track the progress of state-wide traffic safety efforts. Procedures vary by State. Some States conduct their seat belt use surveys at randomly selected locations that include both controlled intersections and non-intersection segments, and collect limited demographic data during these surveys or obtain such data through a separate survey of intersection locations only. Other States conduct their surveys at randomly selected controlled intersections, and obtain seat belt use and demographic data from the same survey. While Section 157 does not require the States to collect or report demographic data, the agency was aware of this State practice when it published the interim final rule. Consequently, the interim final rule did not specify a mix of observation sites within road segments (i.e., moving and [[Page 13682]] stopped traffic sites) or otherwise restrict States from selecting the mix of observation sites that best accommodates State objectives. The agency does not believe that specification or restriction of observation sites would materially affect the observed seat belt use rate, assuming States follow proper random sampling techniques in selecting these sites. For this reason, and to accommodate the States' collection of demographic information without undue restrictions, the agency declines to amend the survey criteria to restrict or specify observation sites for the seat belt use surveys. 5. Nighttime Observation Advocates recommended that the survey criteria include a requirement for nighttime observation of seat belt use. Advocates reasoned that a protocol that included only daylight observations would overestimate actual use rates if seat belt use drops at night. Advocates acknowledged that it had no direct evidence of day-night variability in seat belt use rates, but stated that such variability had been documented in other areas of driver and occupant behavior. Advocates recognized that nighttime observation is more difficult, and suggested that such observations could be made at well-lighted intersections or in shopping districts. Advocates further acknowledged that this might not provide a truly random sample, but suggested that this be balanced against the need to include some statistical representation of nighttime observations. The agency believes that extending sampling requirements to include nighttime observations is impracticable. Successful nighttime observations would necessarily be limited to well-lighted areas and, as Advocates recognizes, a random sample would be impossible to obtain under such circumstances. Advocates suggests that the inability to obtain a ``truly random sample'' be balanced against the need to include some statistical representation of nighttime seat belt use. However, the extreme reduction in suitable observation sites would, in NHTSA's view, render any data from nighttime observations of negligible statistical validity. Under these circumstances, and in light of the increased danger to personnel that would be involved in nighttime observation, the agency has not adopted the recommendation to include nighttime observation. 6. Miscellaneous The Oregon Department of Transportation (Oregon) suggested that motorhomes be included among the vehicles surveyed for seat belt use, in addition to the vehicles identified in the interim final rule. Oregon stated that it experiences a significant amount of motorhome travel during the summer months and along coastal corridors. The agency appreciates Oregon's concern that motorhomes have a significant presence in the State. However, NHTSA did not include motorhomes in the interim final rule as among the categories of vehicles for observation for two reasons. First, motorhomes vary substantially in size, capacity, and construction and, as a result, not all of these vehicles fall within the statutory definition of ``passenger motor vehicle'' contained in Section 157. Without careful observation and specialized knowledge, it is difficult to distinguish those motorhomes that are covered by Section 157 from those that are not, and it would be impracticable to make the proper distinction when conducting the surveys. Second, due to the typically large size of these vehicles and the positioning of occupants well above road level, successful observation would present significant difficulties. Consequently, for reasons of practicability, we decline to adopt Oregon's suggestion. New York requested that the interim final rule be modified to explicitly extend previous survey design approvals granted under the Section 153 grant program. New York stated that its survey design incorporated many elements promoted by NHTSA, and that it would be unable to compare results and measure progress from earlier years if it were not allowed to retain the same design. New York's comment falls outside the scope of this rule, which is limited to describing new criteria governing surveys conducted under the Section 157 program, beginning with surveys conducted in 1998. A companion interim final rule, Safety Incentive Grants for Use of Seat Belts--Allocations Based on State Seat Belt Use Rates (October 29, 1998, 63 FR 57904), describes the circumstances under which surveys submitted by States will be approved or disapproved (including surveys whose designs were approved under the Section 153 program). We recommend that New York review that interim final rule, in particular section 1240.12(c) (23 CFR 1240.12(c)), for current guidance. The agency expects to publish a final rule for the companion interim final rule in the near future, and will specifically address New York's comment at that time. Michigan expressed concern that the agency might interpret the Section 157 survey criteria more narrowly than the Section 153 guidelines. Michigan noted that its pseudorandom method for assigning day-of-week and time-of-day observations provided for ``essentially equal probability of selection'' for all days of the week and daylight hours, whereas the interim final rule requires that observation sites be ``randomly assigned to the selected day-of-week/time-of-day time slots.'' Michigan requested that a method of appeal be established if its procedure were not acceptable under the new criteria. In addition to the random selection provision cited by Michigan, above, the interim final rule requires that ``[a]ll daylight hours for all days of the week must be eligible for inclusion in the sample.'' Taken together, these requirements were intended to ensure not only that observations are collected during all daylight hours and all days of the week, but also that a site is not scheduled for a specific day or time period based on a judgment bias (e.g., because of a belief that more observations were possible or that observed use would be different). However, the agency recognizes that a completely random allocation of sites to day-of-week/time-of-day slots would require the deployment of an inordinate amount of resources, and that a certain amount of ``grouping'' of sites is necessary for an efficient use of data collection resources. In the interim final rule, NHTSA did not intend to preclude the grouping of sites for administrative convenience (e.g., for efficient deployment of observers, reduction of personnel travel expenses, etc.), provided such grouping is accomplished without the introduction of a judgment bias. In response to Michigan's concern, the agency has added appropriate language to Section 1340.4(c) for clarification. Regulatory Analyses and Notices Executive Order 13132 (Federalism): We have analyzed this action in accordance with the principles and criteria contained in Executive Order 13132, and have determined that it does not have sufficient Federalism implications to warrant the preparation of a Federalism assessment. While it concerns a new State grant program, this action does not impose any major new requirements on the States. Rather, it makes minor changes to survey procedures that have already been used by many States in a previously authorized grant program and for other purposes. Executive Order 12778 (Civil Justice Reform): This rule does not have any preemptive or retroactive effect. It [[Page 13683]] merely revises existing requirements imposed on States to reflect the statutory requirements of a new 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 ``significant'' under Executive Order 12866 and under the Department of Transportation Regulatory Policies and Procedures because it is likely to result in significant economic impacts. A Final Economic Assessment (FEA) was prepared for the interim final rule and for a companion interim final rule that established the procedures for allocating funds under the grant program authorized by 23 U.S.C. 157. A copy of the FEA, describing the economic effects in detail, was placed in the docket for public inspection. Following is a summary of the cost and benefit information for this rule. The total annual cost of conducting surveys following the procedures of this rule (if each State conducted one) is estimated to be $1.9 million. However, since many States have regularly conducted surveys prior to the promulgation of this rule, the actual survey costs attributable to this rule are estimated to be significantly less (consult the FEA for more detail). A State may be eligible for an allocation of funds during each of fiscal years 2000 through 2003 if it conducts a survey of seat belt use during each of calendar years 1998 through 2001, in accordance with the procedures under this rule. Allocations available to the States total $92,000,000 for fiscal year 2000, $102,000,000 for fiscal year 2001, and $112,000,000 for each of fiscal years 2002 and 2003. An allocation totaling $82,000,000 is available for fiscal year 1999, but that allocation is dependent on criteria other than the survey procedures required under this rule. Depending on the results of State surveys, some funds may remain unallocated, and will be allocated under other procedures that are unrelated to this action. Executive Order 13045 (Protection of Children from Environmental Health Risks and Safety Risks): This rule is not subject to Executive Order 13045 because 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 157 program, and they are not small entities. Paperwork Reduction Act: This action, which describes surveys that States must conduct and submit to the agency in order to be considered for an allocation of funds under 23 U.S.C. 157, is considered to be an information collection requirement, as that term is defined by OMB. This information collection requirement has been 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 February 2, 2002; OMB Control No. 2127-0597. 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. Unfunded Mandates Reform Act: The Unfunded Mandates Reform Act of 1995 (Public Law 104-4) requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. This action does not meet the definition of a Federal mandate, because the resulting annual expenditures will not exceed the $100 million threshold. List of Subjects in 23 CFR Part 1340 Grant programs--transportation, Highway safety, Intergovernmental relations, Reporting and recordkeeping requirements. Accordingly, the interim final rule adding 23 CFR part 1340, which was published at 63 FR 46389 on September 1, 1998, is adopted as a final rule with the following changes: 1. The authority citation for part 1340 continues to read as follows: Authority: 23 U.S.C. 157; delegation of authority at 49 CFR 1.50. 2. In section 1340.4, paragraph (c) is revised to read as follows: Sec. 1340.4 Population, demographic, and time/day requirements. * * * * * (c) Time of day and day of week. All daylight hours for all days of the week must be eligible for inclusion in the sample. Observation sites must be randomly assigned to the selected day-of-week/time-of-day time slots. If observation sites are grouped to reduce data collection burdens, a random process must be used to make the first assignment of a site within a group to an observational time period. Thereafter, assignment of other sites within the group to time periods may be made in a manner that promotes administrative efficiency and timely completion of the survey. Issued on: March 8, 2000. Rosalyn G. Millman, Acting Administrator, National Highway Traffic Safety Administration. [FR Doc. 00-6134 Filed 3-13-00; 8:45 am] BILLING CODE 4910-59-P