[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]



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 

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.


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 

[[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 

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 
    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 

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 

    Authority: 23 U.S.C. 157; delegation of authority at 49 CFR 

    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]