[Federal Register Volume 73, Number 248 (Wednesday, December 24, 2008)]
[Rules and Regulations]
[Pages 78959-78969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30168]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 924

[FHWA Docket No. FHWA-2008-0009]
RIN 2125-AF25


Highway Safety Improvement Program

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: The purpose of this final rule is to revise Part 924 to 
incorporate changes to the Highway Safety Improvement Program (HSIP) 
that resulted from the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), as well as 
to reflect changes in the overall program that have evolved since the 
FHWA originally published 23 CFR Part 924.

DATES: Effective Date: This final rule is effective January 23, 2009.

FOR FURTHER INFORMATION CONTACT: Ms. Erin Kenley, Office of Safety, 
(202) 366-8556; or Raymond Cuprill, Office of the Chief Counsel, (202) 
366-0791, Federal Highway Administration, 1200 New Jersey Ave., SE., 
Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., 
e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access and Filing

    This document, the notice of proposed rulemaking (NPRM), and all 
comments received may be viewed online through http://www.regulations.gov. Electronic submission and retrieval help and 
guidelines are available on the Web site. It is available 24 hours each 
day, 365 days each year. An electronic copy of this document may also 
be downloaded from the Office of the Federal Register's home page at: 
http://www.archives.gov and the Government Printing Office's Web page 
at: http://www.access.gpo.gov/nara.

Background

    On April 24, 2008, at 73 FR 22092, the FHWA published a NPRM 
proposing to revise the regulations in 23 CFR Part 924 Highway Safety 
Improvement Program. The NPRM was published to incorporate the new 
statutory requirements of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) and to 
provide State and local safety partners with information on the 
purpose, definitions, policy, program structure, planning, 
implementation, evaluation, and reporting of HSIP.

Summary of Comments

    The FHWA received 15 letters submitted to the docket containing 
approximately 100 individual comments. Comments were received from 
State departments of transportation (DOTs), a county department of 
public works, private industry, and the American Automobile Association 
(AAA). The FHWA has reviewed and analyzed all the comments received. 
The significant comments and summaries of the FHWA's analyses and 
determinations are discussed below.

Section 924.1 Purpose

    The FHWA received one comment from the Arkansas State Highway 
Commission requesting clarification of FHWA's proposal to add 
evaluation to the list of components of a comprehensive HSIP, since 
evaluation already exists under the current HSIP. While evaluation has 
always been a requirement of the HSIP, the FHWA includes this change to 
emphasize that evaluation is a critical element of the program. The 
FHWA believes that explicitly adding evaluation to section 924.1 makes 
this section consistent with the rest of the regulation and corrects an 
omission of the word ``evaluation'' from the existing regulation.

Section 924.3 Definitions

    The FHWA received 14 comments from State DOTs and the AAA regarding 
some of the proposed definitions in this section. In particular, the 
Michigan and North Dakota State DOTs, as well as the Maryland State 
Highway Administration (SHA), expressed concern with the definition of 
``highway safety improvement project,'' because they believed the 
definition required Strategic Highway Safety Plans (SHSP) to include 
specific projects. It is not the FHWA's intent for SHSPs to be project 
specific; therefore, FHWA revises the definition in the final rule to 
indicate that a highway safety improvement project is ``consistent 
with'' the State SHSP, rather than ``described in'' the SHSP. In 
addition, the Illinois, Minnesota, and Arizona DOTs and the AAA 
commented about the list of example projects included within the 
definition of ``highway safety improvement project.'' Because the 
project list is consistent with 23 U.S.C. 148, and the intent is to 
keep the definition of eligible projects broad, rather than imply that 
it is an exhaustive list, the FHWA retains the list of projects as 
proposed in the NPRM. However, the FHWA does incorporate a minor 
revision to the definition of ``highway safety improvement project,'' 
project type 10, elimination of a roadside obstacle, to also include 
roadside hazards. This addresses comments by the Arizona DOT, who 
suggested that improvement of roadside slopes be included in this 
project type. The FHWA believes that ``roadside hazards'' is more 
general and addresses Arizona DOT's comment, while also being broad 
enough to cover other hazards. In addition, the FHWA removes the word 
``installation'' from project type 21 in the final rule to be 
consistent with the language used in 23 U.S.C. 148. The AAA suggested 
that the term ``crash rate,'' as described in the definition of ``high 
risk rural roads,'' should include vehicle miles traveled, and a 
reference to fatalities and serious injuries, for consistency with the 
serious injury definition in the statutory language. The FHWA 
recognizes that not all crash rates are recorded with respect to 
vehicle miles travelled, and FHWA's desire is to allow States 
flexibility with how crash rates are defined. The definition for ``high 
risk rural roads'' is consistent with the 23 U.S.C. 148 definition in 
its reference to fatalities and incapacitating injuries. The Illinois 
DOT agreed with FHWA's proposed definition of ``high risk rural roads'' 
and suggested expanding the definition to include ``locations on such 
roads that display similar roadway characteristics to warrant 
systematic safety improvements.'' The FHWA is adopting the proposed 
definition without the suggested expansion because it is more 
consistent with the requirements of 23 U.S.C. 148, and the suggested 
expansion of the definition would extend the application of the rule 
beyond its statutory authority. This would need to be addressed in 
future legislation. The definitions for ``high risk rural roads,'' 
``highway safety improvement program,'' ``safety projects under any 
other section,'' and ``strategic highway safety plan,'' which are based 
on the definitions in 23 U.S.C. 148(a), remain unchanged in the final 
rule. The definition of ``highway safety improvement project'' in the 
final rule reflects a slight editorial change as discussed above.
    The FHWA incorporates a minor editorial revision to the definition 
for ``road safety audit'' in the final rule to

[[Page 78960]]

clarify that the audit teams that perform road safety audits are 
multidisciplinary teams. The FHWA also incorporates minor editorial 
changes in the final rule definition for ``safety data'' to correspond 
with similar changes in section 924.9. In the NPRM, the FHWA proposed 
including case or citation adjudication and injury data to the list of 
types of safety data; however, several State DOTs, including Arkansas, 
Michigan, and Oregon indicated that they currently do not have access 
to all of that data. While the FHWA believes that case or citation 
adjudication and injury data are elements of an ideal safety data 
system, the FHWA removes those items in order to prevent the list of 
safety data from appearing exhaustive.
    The FHWA incorporates the definitions for the following terms into 
the final rule, unchanged from what was proposed in the NPRM: 
``Highway-rail grade crossing protective devices,'' ``integrated 
interoperable emergency communication equipment,'' ``interoperable 
emergency communications system,'' ``operational improvements,'' 
``public road,'' ``hazard index formula,'' ``public grade crossing,'' 
``safety stakeholder,'' ``serious injury,'' and ``transparency 
report.'' These terms are used in the text of the regulations. The AAA 
suggested that the definition for ``hazard index formula'' was overly 
broad; however, the FHWA believes that the proposed definition provides 
sufficient Federal level regulatory requirements while also allowing 
States the appropriate flexibility to incorporate States' 
methodologies. The Minnesota DOT agreed with the definition of ``public 
grade crossing,'' commenting that it provided a clearer definition than 
was previously available.
    The Illinois DOT suggested removing pedestrian and bicycle 
facilities from the existing definition of ``highway'' in Part 924; 
however, the FHWA leaves the definition unchanged because these types 
of facilities are eligible for HSIP funding and therefore must be 
included in the definition. The Arizona DOT suggested adding a 
definition for the word ``safety''; however, the FHWA believes that the 
definitions and other provisions of the final rule provide sufficient 
information on the safety projects it covers and therefore a definition 
of ``safety'' is not necessary.

Section 924.5 Policy

    While the Washington State DOT and the San Diego County Department 
of Public Works agreed with the proposed revisions to the policy 
statement in section 924.5(a), the Oregon and North Dakota DOTs 
submitted comments about the specific wording. The North Dakota DOT 
requested clarification of the phrase ``evaluate on a continuing 
basis'' and suggested the phrase ``all public roads'' would include 
roads outside of the State's authority. The Oregon DOT commented that 
the proposed objective of ``decreasing the potential for crashes'' is 
not specifically addressed in SAFETEA-LU and that the overall objective 
of significantly reducing fatalities and serious injuries should be 
emphasized. As a result of these comments, the FHWA revises the text in 
section 924.5(a) of the final rule to indicate that States shall ``* * 
* evaluate on an annual basis a HSIP that has the overall objective of 
significantly reducing the occurrence of and the potential for 
fatalities and serious injuries resulting from crashes on all public 
roads.'' The FHWA believes that this policy complements the systematic 
improvement characteristics of the SHSP and supports States in 
implementing safety countermeasures that target crash types rather that 
just high crash locations. The FHWA encourages States to fund projects 
that will have the largest impact on safety regardless of who owns and 
maintains the road.
    In the NPRM, the FHWA proposed adding two additional paragraphs (b) 
and (c) to this section to provide information about highway safety 
improvement project eligibility, and to encourage agencies to use HSIP 
funding for projects that maximize opportunities to advance safety, and 
to indicate the period of availability for the funds. While the 
Washington State DOT supported the proposed language in section 
924.5(b) emphasizing that States consider safety projects that maximize 
opportunities to advance safety by addressing locations and treatments 
with the highest potential for future crash reduction, Michigan and 
Illinois DOT and Maryland SHA expressed concern with the proposed 
language. Michigan DOT suggested that, in practice, it is very 
difficult to implement low cost treatment projects (as suggested in the 
NPRM) using Federal funding because of the requirement that such 
projects be competitively bid. The Maryland SHA also commented that 
these projects would be difficult to fund due to the policy requirement 
that the activity address locations and treatments with the highest 
potential for future crash reduction. The FHWA understands these 
concerns, and as a result, removes the phrase, ``* * * by addressing 
locations and treatments with the highest potential for crash 
reduction'' from the statement in the final rule. In response to 
Illinois DOT's concern that the proposed language in section 924.5(b) 
suggests prioritization of projects, the FHWA clarifies that this 
statement does not require prioritization, rather the intent is that 
the program should fund projects that are considered priority projects, 
which are projects with maximum lifesaving potential.
    Paragraph (b) reiterates that safety projects under any other 
section are eligible activities only when a State meets the 
requirements of 23 U.S.C. 148(e) to use or flex 10 percent of the 
amount apportioned under 23 U.S.C. 104(b)(5) for a fiscal year. This 
excludes minor activities that are incidental to a specific highway 
safety improvement project. The FHWA received a comment from the 
Maryland SHA stating that flexing the 10 percent of the funds 
apportioned under 23 U.S.C. 104(b)(5) into behavioral programs should 
be made easier for the States and the FHWA division offices. The FHWA 
believes that this regulation provides States with the maximum 
flexibility allowed under current law for implementing the 10 percent 
flexibility provision and that granting additional flexibility would 
exceed statutory authority, and therefore, it is outside of the scope 
of this rulemaking.
    The FHWA received comments from the Illinois, Minnesota, and Oregon 
DOTs supporting the addition of paragraph (c) to this section. The 
paragraph clarifies that improvements to safety features that are 
routinely provided as part of broader Federal-aid projects should be 
funded by the same source as the broader project. The Florida, 
Michigan, and North Dakota DOTs commented that the proposed language 
would limit their abilities to dual-fund or split-fund projects. The 
FHWA emphasizes that this statement does not prohibit dual or split 
funding, rather it encourages use of other funding sources for safety 
improvements. States should consider safety in all infrastructure 
improvements and funding those improvements through all sources 
possible, not just through dedicated safety funding. States also should 
consider using HSIP funds for cost effective, high-impact projects in 
order to use available funding as efficiently and effectively as 
possible.
    Finally, the FHWA adds a new paragraph (d) to this section to 
explain that eligibility for Federal funding of projects for traffic 
control devices under this Part is subject to a State and/or local 
jurisdiction's substantial conformance with the National Manual on 
Uniform Traffic Control Devices

[[Page 78961]]

(MUTCD) or FHWA-approved State MUTCDs and supplements in accordance 
with Part 655, Subpart F, of this title. While the FHWA neglected to 
include this in the NPRM, the FHWA adds this paragraph in the final 
rule to clarify that traffic control devices that are installed using 
HSIP funding must be MUTCD compliant. This is not a new requirement.
    The purpose of this policy section is to support States in 
implementing safety countermeasures that target crash types rather that 
just high crash locations.

Section 924.7 Program Structure

    The FHWA received comments from Maryland SHA and Michigan DOT 
agreeing with the addition of paragraph (a), which requires that the 
HSIP in each State include a data-driven SHSP and resulting 
implementation through all roadway improvement projects, in addition to 
highway safety improvement projects. The language requires that the 
HSIP include projects for construction and operational improvements on 
high risk rural roads and the elimination of hazards at railway-highway 
grade crossings.
    The FHWA received comments from Maryland SHA and the North Dakota 
DOT opposed to proposed modifications of the existing language that 
require that each State's HSIP include processes for the evaluation of 
the SHSP, HSIP, and highway safety improvement projects. Both suggested 
that evaluation on a programmatic level, rather than project specific 
level, be allowed. The FHWA agrees that evaluation should be based on a 
programmatic level, and removes the requirement in paragraph (a) for 
each State to have a process for evaluating highway safety improvement 
projects as a process requirement from this section, as well as from 
other related sections in the regulation.
    The FHWA received comments from the South Dakota DOT opposing the 
language that requires FHWA approval of the State's processes for the 
planning, implementation, and evaluation of the HSIP and SHSP, as well 
as the requirement for States to develop the processes cooperatively 
with officials of the various units of local governments. In both 
cases, South Dakota suggested revising the language to read ``in 
consultation with.'' In the first instance, the FHWA agrees with the 
suggested change and has revised the language to read, ``These 
processes shall be developed by the States in consultation with the 
FHWA Division Administrator in accordance with this section.'' However, 
in the second instance, because the role of various units of local 
governments is different from the role of the FHWA the word 
``cooperatively'' was not changed to ``in consultation.''

Section 924.9 Planning

    The FHWA revises this section in order to provide more information 
to States regarding the planning process for HSIPs. The FHWA 
reorganizes this section and adds more detail regarding individual 
elements of the planning process from what appears in the existing 
regulation.
    The five main elements that the planning process of the HSIP States 
shall incorporate are:
    (1) A process for collecting and maintaining a record of crash, 
roadway, traffic, and vehicle data on all public roads, including the 
characteristics of both highway and train traffic for railway-highway 
grade crossings;
    (2) A process for advancing the State's capabilities for safety 
data collection and analysis;
    (3) A process for analyzing available safety data;
    (4) A process for conducting engineering studies (such as road 
safety audits and other safety assessments or reviews) of hazardous 
locations, sections, and elements to develop highway safety improvement 
projects; and
    (5) A process for establishing priorities for implementing highway 
safety improvement projects.
    Maryland SHA agreed that each State should have a procedure to 
monitor crashes on State and local highway systems such as to identify 
those locations having extraordinary frequencies; however, they were 
concerned that the requirements of this section would be interpreted as 
requiring that there be a single process or system in the State to 
identify, analyze, and prioritize crash locations. The FHWA believes 
that local jurisdictions may have and use data systems of their choice 
and does not require that a single process or system be used. However, 
the capabilities of the processes or systems that are used by the State 
must adhere to the requirements in 23 U.S.C. 148.
    While the first of the five elements resembles the first planning 
component in existing Part 924, the final rule includes collecting and 
maintaining a record of crash, roadway, traffic, and vehicle data on 
all public roads. In the NPRM, the FHWA proposed including case or 
citation adjudication and injury data to the list of items to be 
collected and maintained; however, several State DOTs, including 
Arkansas, Michigan, and Oregon, indicated that they currently do not 
have access to all of that data. While the FHWA believes that case or 
citation adjudication and injury data are elements of an ideal safety 
data system, the FHWA removes the requirement for those data sources in 
order to prevent the list of safety data from appearing exhaustive. The 
FHWA incorporates this change to bring additional data sources into the 
planning process and to encourage States to make their databases more 
comprehensive. The requirement for comprehensive databases is also 
consistent with 23 U.S.C. 148 and 408.
    The FHWA proposed paragraph (2) to advance States' improvement of 
capabilities for data collection and analysis, including the 
improvement of the timeliness, accuracy, completeness, uniformity, 
integration, and accessibility of safety data or traffic records. The 
Arizona DOT suggested adding comprehensiveness, efficiency, and 
consistency to the safety data qualifiers, with ``consistency'' 
replacing ``uniformity.'' However, FHWA's desire is to be consistent 
with 23 U.S.C. 148 and 408 and list the desirable qualities of data, 
and, therefore, declines to incorporate the suggested change.
    The FHWA expands paragraph (3) [formerly paragraph (2) of the 
existing regulation] to provide more detailed information regarding the 
processes involved in developing a data-driven program. The revision to 
this section also provides four paragraphs with additional information 
on the components of a data-driven program that States must develop. 
These components include:
    (i) Developing a HSIP in accordance with 23 U.S.C. 148(c)(2) that 
identifies highway safety improvement projects on the basis of crash 
experience, crash potential, or other data supported means as 
identified by the State and establishes the relative severity of those 
locations, considers the relative hazard of public railway-highway 
grade crossings based on a hazard index formula; and that analyzes the 
results achieved by highway safety improvement projects in setting 
priorities for future projects. The FHWA revises the wording in the 
final rule based on comments from North Dakota and Colorado DOTs, as 
well as the Maryland SHA. The North Dakota DOT and Maryland SHA 
suggested that identifying safety improvement projects on the basis of 
crash experience is not broad enough and addressing a common system 
crash type should be allowed. As a result, the FHWA revises section 
(a)(3)(i)(A) to include ``other data supported means as identified by 
the State.'' The FHWA includes this item to require that the States 
develop a data-driven program where projects and priorities are based 
on crash data, crash

[[Page 78962]]

severity, and other relevant safety information. In section 
924.9(a)(3)(i)(B), the Maryland SHA questioned whether the use of a 
hazard index formula for public railway-highway grade crossings would 
have an impact on safety. The FHWA believes that some means of ranking 
and prioritizing railway-highway crossing locations for improvements 
continues to be needed, and required by 23 U.S.C. 130, and a hazard 
index formula serves this purpose. The FHWA reminds agencies that FHWA 
provides guidance and technical support to States including 
recommendations on hazard index formulas and best practices. States 
have the flexibility to use the DOT formula or a State-developed and 
validated formula. As a result, States have the ability to develop a 
hazard index formula that has a positive impact on safety. Section 
924.9(a)(3)(i)(C) requires that States use information from their 
evaluation processes to set priorities for future projects. The 
Colorado and North Dakota DOT, as well as the Maryland SHA, had 
comments regarding the interpretation of the proposed language. As a 
result, the FHWA revises the wording in the final rule to indicate that 
the information from the evaluation process is to be used where 
appropriate in setting priorities for future projects. It is the FHWA's 
intent for evaluation information to be considered, but not as the sole 
source for data. In addition, the FHWA desires evaluation on a 
programmatic level and revises the language in the final rule by 
replacing the term ``highway safety improvement project'' with 
``highway safety improvement program.'' Finally, the FHWA emphasizes 
that the evaluation process does not require States to create accident 
modification factors or crash reduction factors; rather, States must 
establish an evaluation process and use the information as another 
source of data for future project prioritization. Such information can 
be very useful in helping the State determine the effectiveness of 
countermeasures.
    (ii) Developing and maintaining a data-driven SHSP in consultation 
with safety stakeholders that makes effective use of crash data, 
addresses engineering, management, operation, education, enforcement, 
and emergency services, and considers safety needs on all public roads. 
In addition, the SHSP should identify key emphasis areas, adopt 
performance-based goals, priorities for implementation and a process 
for evaluation, and obtain approval by the Governor of the State, or a 
responsible State agency that is delegated by the Governor of the 
State. The process by which the State develops the SHSP shall be 
approved by the FHWA Division Administrator. The elements in this 
section implement the statutory requirements of 23 U.S.C. 148. The 
Maryland SHA and the Oregon and South Dakota DOTs each submitted 
comments about interpreting some of the language in this portion of the 
regulation. In particular, Maryland SHA and Oregon DOT thought that the 
proposed language in item (F) implied that the program of HSIP projects 
had to be listed in the SHSP. The FHWA reiterates that item (F) does 
not require that the program of HSIP projects be listed in the SHSP, 
rather the SHSP is to describe a program of projects, technologies, or 
strategies. Maryland SHA commented that item (G), related to 
performance-based goals, needed to be cognizant of the work being done 
by National Highway Traffic Safety Administration (NHTSA) on 
performance measures and that this regulation should not require States 
to use specific measures until there is a national consensus on such 
measures. The FHWA reiterates that item (G) does not require specific 
measures be used, only that the measures that are used be consistent 
among other types of safety plans in the State. The consistency of 
performance measures is an existing requirement of 23 U.S.C. 148. 
Further, FHWA believes that NHTSA's report on ``Traffic Safety 
Performance Measures for States and Federal Agencies'' \1\ will not 
adversely affect this regulation because performance measures described 
in the report cover the major areas common to many State SHSPs, and 
States will set the specific goals for the core outcome measures. To 
clarify the term ``low cost,'' the FHWA replaces the term with the word 
``cost effective'' in item (H). Items (M) and (N) involve approvals by 
the Governor of a State and the FHWA Division Administrator, 
respectively. Consistent with stewardship and oversight 
responsibilities, and with 23 U.S.C. 315, FHWA has the authority to 
approve the processes that a State uses to administer a federally 
funded program. While the FHWA revises the reference to process 
approval in Section 924.7(b) to be ``in consultation with,'' process 
approval for the SHSP development still remains a requirement.
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    \1\ NHTSA's report, ``Traffic Safety Performance Measures for 
States and Federal Agencies'' can be viewed at the following Web 
site: http://www.nhtsa.dot.gov/portal/nhtsa_static_file_downloader.jsp?file=/staticfiles/DOT/NHTSA/Traffic%20Injury%20Control/Articles/Associated%20Files/811025.pdf.
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    (iii) Developing a High Risk Rural Roads program using safety data 
that identifies eligible locations on State and non-State owned roads, 
and analyzes the highway safety problem to diagnose safety concerns, 
identify potential countermeasures, make project selections, and 
prioritize high risk rural roads projects. The elements in this section 
also implement the statutory requirements of 23 U.S.C. 148. While the 
San Diego County Department of Public Works agreed with this section, 
the Illinois DOT suggested that this requirement may require additional 
staffing and funding for their agency. Since this is already a 
statutory requirement under 23 U.S.C. 148, FHWA does not make any 
revisions to the language in the final rule.
    (iv) Developing a Railway-Highway Grade Crossing Program. This item 
is contained in existing Part 924; however, the FHWA incorporates minor 
edits to clarify the content. Similar to their comment on Section 
924.9(a)(3)(i)(B), the Maryland SHA suggested that the use of a hazard 
index formula for public railway-highway grade crossings would not be 
valid in their State. As stated above in Section 924.9(a)(3)(i)(B), the 
FHWA believes that some means of ranking and prioritizing railway-
highway crossing locations for improvements is necessary (and required 
by 23 U.S.C. 130), and a hazard index formula serves this purpose.
    The final rule expands paragraph (4) [formerly paragraph (3)] to 
include road safety audits and other safety assessments or reviews of 
hazardous locations as processes that may be used to develop highway 
safety improvement projects. The FHWA incorporates this change because 
road safety audits and other types of assessments and reviews, as 
suggested in comments by Minnesota and North Dakota DOTs, are valuable 
tools that have been developed to aid practitioners in enhancing 
highway/road safety.
    The FHWA expands paragraph (5) [formerly paragraph (4)] to include 
additional language on the process for establishing priorities for 
implementing highway safety improvement projects to include 
consideration of the strategies in the SHSP, correction and prevention 
of hazardous conditions, and integration of safety in the 
transportation planning process in 23 CFR 450, including the statewide, 
and metropolitan where applicable, long-range plans, the Statewide 
Transportation Planning Improvement Program and the Metropolitan 
Transportation Improvement Program, where applicable. This additional 
information incorporates more key elements into the planning process 
and is designed to tie transportation systems planning to the

[[Page 78963]]

SHSP. Referencing 23 U.S.C. 134 and 135 reinforces the link between 
transportation planning and safety. This safety requirement was 
introduced in the Transportation Equity Act for the 21st Century (TEA-
21) and is included in 23 U.S.C. 135(c)(1)(B). The Maryland SHA 
expressed concern over the selection of safety projects based solely or 
primarily on the potential reduction in fatalities and serious 
injuries; however, the FHWA emphasizes that the regulation does not 
dictate that projects be selected solely or primarily on the potential 
to reduce fatalities and serious injuries. This is just one of the six 
factors to be considered. The FHWA also relocates the last three 
sentences of former paragraph (4) in the existing regulation to 
subparagraph (3)(iv), because the sentences relate to Railway-Highway 
Grade Crossings.
    The FHWA also relocates existing paragraph (b) regarding Railway-
Highway grade crossings to subparagraph (a)(3)(iv)(D) in order to place 
all Railway-Highway Grade Crossing planning items in one area.
    The FHWA expands paragraph (b) [formerly paragraph (c)] to include 
references to 23 U.S.C. 130, 133, 148, and 505. As part of this change, 
the final rule clarifies that funds made available through 23 U.S.C. 
104(f) may be used to fund safety planning in metropolitan areas. While 
the Minnesota DOT suggested adding language about financing of safety 
planning to include rural areas, the FHWA retains the language in the 
final rule as proposed. The funding already includes rural areas, since 
outside of the metropolitan area specification, all other areas, 
including rural, are eligible for these funding resources.
    The FHWA adds a new paragraph (c) to specify that highway safety 
improvement projects shall be carried out as part of the Statewide and 
Metropolitan Transportation Improvement Planning Processes consistent 
with the requirements of 23 U.S.C. 134 and 135 and 23 CFR part 450. The 
FHWA includes this item to incorporate the statutory requirements of 
section 148 and to link safety to the transportation planning process.

Section 924.11 Implementation

    In the NPRM, the FHWA proposed to incorporate an editorial change 
to paragraph (a) and to relocate the reference to procedures set forth 
in 23 CFR Part 630, Subpart A to be a new paragraph (i). The Maryland 
SHA expressed concern that the scheduling requirement in paragraph (a) 
impedes the implementation of low-cost improvement projects and other 
safety projects that can or should be undertaken quickly and simply. 
The Maryland SHA also suggested that this paragraph (a) and the last 
paragraph (i), along with the scheduling requirements under section 
924.9 and other requirements in the rule make the HSIP more complex and 
burdensome than it should be. The FHWA believes that the scheduling 
components do not impede implementation of low-cost improvement 
projects. However, FHWA clarifies paragraph (a) by simplifying it to 
state that the HSIP shall be implemented in accordance with the 
requirements of section 924.9 of this part. In response to the 
comments, the FHWA also deletes the reference to scheduling in 
paragraph (i). The FHWA also corrects the reference in paragraph (i) to 
23 CFR part 630 Subpart A to include its correct title: Preconstruction 
Procedures: Project Authorization and Agreements.
    The FHWA modifies paragraph (d) [formerly paragraph (c)] to clarify 
the requirements for the use of funds set aside pursuant to 23 U.S.C. 
130(e) for railway-highway grade crossings. The FHWA includes the 
reference to 23 U.S.C. 130(f) for funds that must be made available for 
the installation of grade crossing protective devices. The FHWA also 
includes reference to the special rule described in 23 U.S.C. 130(c)(2) 
because of the amendments made by section 101(1) of the SAFETEA-LU 
Technical Corrections Act of 2008 (Pub. L. 110-244, 122 Stat. 1572, 
1575). In addition, the FHWA includes a reference to 23 U.S.C. 130(k), 
which specifies that no more than 2 percent of these apportioned funds 
may be used by the State for compilation and analysis of safety data in 
support of the annual report to the FHWA Division Administrator 
required by section 924.15(a)(2) of this part. The Minnesota DOT 
supports the reference to 23 U.S.C. 130(k) in this paragraph.
    Paragraph (h) describes that the Federal share of the cost for most 
highway safety improvement projects carried out with funds apportioned 
to a State under 23 U.S.C. 104(b)(5) shall be a maximum of 90 percent. 
The insertion of the word ``maximum'' in the final rule is in response 
to a comment from the North Dakota DOT suggesting that projects using 
the funding should be allowed to use ``up to 90 percent,'' rather than 
``shall be 90 percent.'' In accordance with 23 U.S.C. 120(a) or (b), 
the Federal share may be increased to a maximum of 95 percent by the 
sliding scale rates for States with a large percentage of Federal 
lands. Projects such as roundabouts, traffic control signalization, 
safety rest areas, pavement markings, or installation of traffic signs, 
traffic lights, guardrails, impact attenuators, concrete barrier end 
treatments, breakaway utility poles, or priority control systems for 
emergency vehicles or transit vehicles at signalized intersections may 
be funded at up to a 100 percent Federal share, except not more than 10 
percent of the sums apportioned under 23 U.S.C. 104 for any fiscal year 
shall be used at this Federal share rate. In addition, for railway-
highway grade crossings, the Federal share may amount up to 100 percent 
for projects for signing, pavement markings, active warning devices and 
crossing closures, subject to the 10 percent limitation for funds 
apportioned under 23 U.S.C. 104 in a fiscal year. The Illinois and 
Minnesota DOTs agreed with the proposed changes, particularly enabling 
States to use Federal funds up to 100 percent on certain items. The 
FHWA advises States that this is not a new provision, rather it 
reiterates existing language in 23 U.S.C. 120(c).

Section 924.13 Evaluation

    The FHWA revises this section to clearly describe the evaluation 
process of the HSIP, the information that is to be used, and the 
mechanisms to be used for financing evaluations. The Maryland SHA 
provided comments that apply to this section, as well as others in the 
NPRM, expressing concern over the need to evaluate the effectiveness of 
HSIP projects in addition to the overall HSIP and SHSP. As in the other 
sections, FHWA revises the final rule language in this section, 
deleting the requirement to evaluate the effectiveness of individual 
highway safety improvement projects. The regulation does require an 
overall program evaluation. The intent is to determine if the process 
produces effective projects and an effective program. The Maryland SHA 
indicated that its comments related to developing accident modification 
factors, performance factors, and implementing low-cost safety 
improvements in section 924.9(a)(3)(i)(C) applied to this section as 
well. Those comments are discussed in that section.
    In paragraph (a) regarding the evaluation process, the FHWA 
proposed to require the States to evaluate the overall HSIP and the 
SHSP. Within paragraph (a), the FHWA restructured the existing 
paragraphs (a)(1) through (a)(3) into two paragraphs. Paragraph (a)(1) 
requires that the evaluation include a process to analyze and assess 
the results achieved by the HSIP in reducing the number of crashes, 
fatalities and serious injuries, or potential crashes, and in reaching 
the

[[Page 78964]]

performance goals identified in section 924.9(a)(3)(ii)(G). In the 
NPRM, the FHWA proposed to provide more specifics about the evaluation 
process, especially as it related to individual projects. However, the 
FHWA removes that language (paragraphs (i) through (iii)) in the final 
rule based on comments from the Illinois, North Dakota, and Colorado 
DOTs stating that the specifications were too specific for programmatic 
reviews. The FHWA also includes a new subparagraph (a)(2) in the final 
rule to require that States have a process to evaluate the overall SHSP 
on a regular basis as determined by each State and in consultation with 
the FHWA to: (i) Ensure the accuracy and currency of the safety data; 
(ii) identify factors that affect the priority of emphasis areas, 
strategies, and proposed improvements; and (iii) identify issues that 
demonstrate a need to revise or otherwise update the SHSP. The FHWA 
includes this evaluation of the SHSP because the strategies in the SHSP 
must be periodically assessed to ensure continued progress in reducing 
fatalities and serious injuries. In addition, evaluation of the SHSP is 
a requirement in 23 U.S.C. 148(c). The San Diego County Department of 
Public Works expressed support for this language; however, the AAA felt 
that the criteria should be expanded to require more sophisticated 
evaluation analysis. The FHWA believes that the States should have the 
flexibility to choose their analysis methods.

Section 924.15 Reporting

    The FHWA expands paragraph (a) of this section in order to specify 
the requirements for States to submit annual reports. The language in 
the final rule reflects comments regarding this section, as well as 
revisions related to other sections in the regulation. Specifically, in 
paragraph (a), the FHWA had proposed in the NPRM that the reporting 
period would be the previous July 1 through June 30. However, the 
Arkansas, Illinois, Michigan, Minnesota, and Oregon DOTs, as well as 
Maryland SHA, expressed concern over the dates of the reporting period, 
primarily due to the time needed to gather the appropriate data from 
various sources. As a result, the FHWA revises the reporting period in 
the final rule to be ``for the period of the previous year,'' thereby 
allowing States to use the most recent reporting year that best suits 
their needs, while still submitting reports to the FHWA Division 
Administrator by August 31. These reports include: (1) A report with a 
defined reporting period describing the progress being made to 
implement the State HSIP; (2) a report describing progress being made 
to implement railway-highway grade crossing improvements and assess 
their effectiveness; and (3) a transparency report describing not less 
than 5 percent of a State's highway locations exhibiting the most 
severe safety needs. Based on comments from the Oregon, Illinois, and 
North Dakota DOTs, the FHWA revises the language in the final rule 
related to the HSIP report to clarify what is needed to describe the 
progress in implementing projects and evaluating the effectiveness of 
the improvements. As part of these changes in the final rule, the FHWA 
deletes the language proposed in section 924.15(a)(1)(iii) in the NPRM 
because it applied to the previous detailed requirements for project 
evaluation in section 924.13(a)(1)(i)-(iii), which have also been 
deleted. The FHWA received comments from Colorado DOT and Maryland SHA 
opposed to the transparency report, or at least requesting that the 
requirements of the report be minimized to reduce the effort needed for 
States to prepare the report. However, because the 5 percent 
transparency report is required by 23 U.S.C. 148, the FHWA keeps the 
requirements in this section. As suggested by Oregon DOT, the 
transparency report should also include potential remedies to those 
hazardous locations identified, as well as estimates of costs 
associated with the remedies and impediments to implementation. The 
FHWA adds this information to the language in the final rule in order 
to incorporate all of the requirements from 23 U.S.C. 148 regarding the 
transparency report in this regulation. The Illinois DOT noted that 
making the transparency report compatible with the requirements of 29 
U.S.C. 794(d), Section 508 of the Rehabilitation Act may be an added 
cost. The FHWA believes that States will be able to provide the reports 
without incurring significant additional costs. The FHWA requires that 
the States submit their transparency reports in a manner that is 
Section 508 complaint so that such reports are accessible to all 
members of the public, including persons with disabilities. The AAA 
supported making the transparency report available to the public and 
even recommended that all of the annual HSIP reports be made public. 
However, at this time, the existing statute only requires that the 
transparency report be made available in a format accessible by the 
public.

Rulemaking Analysis and Notices

Executive Order 12866 (Regulatory Planning and Review) and U.S. DOT 
Regulatory Policies and Procedures

    The FHWA has determined that this action will not be a significant 
regulatory action within the meaning of Executive Order 12866 or 
significant within the meaning of U.S. Department of Transportation 
regulatory policies and procedures. These changes are not anticipated 
to adversely affect, in any material way, any sector of the economy. 
The changes in Part 924 incorporate provisions outlined in 23 U.S.C. 
148 and provide additional information regarding the purpose, 
definitions, policy, program structure, planning, implementation, 
evaluation, and reporting of HSIPs. The FHWA believes that this policy 
for the development, implementation, and evaluation of a comprehensive 
HSIP in each State will greatly improve roadway safety. These changes 
will not create a serious inconsistency with any other agency's action 
or materially alter the budgetary impact of any entitlements, grants, 
user fees, or loan programs. Therefore, a full regulatory evaluation is 
not required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), the FHWA has evaluated the effects of these changes 
on small entities and has determined that this action will not have a 
significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This final rule will not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48, 
March 22, 1995). To the extent the revisions will require expenditures 
by the State and local governments for the planning, implementation, 
evaluation, and reporting of the HSIPs and Federal-aid projects, these 
activities will not be Unfunded Mandates because these activities are 
reimbursable. This action will not result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $128.1 million or more in any one year (2 U.S.C. 1532) 
period to comply with these changes.

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 dated August 4, 1999, and 
the FHWA has determined that this action

[[Page 78965]]

will not have sufficient federalism implications to warrant the 
preparation of a federalism assessment. The FHWA has also determined 
that this rulemaking will not preempt any State law or State regulation 
or affect the States' ability to discharge traditional State 
governmental functions.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this action under Executive Order 13175, 
dated November 6, 2000, and believes that it will not have substantial 
direct effects on one or more Indian tribes; would not impose 
substantial direct compliance costs on Indian tribal governments; and 
would not preempt tribal law. Therefore, a tribal summary impact 
statement is not required.

Executive Order 13211 (Energy Effects)

    The FHWA has analyzed this action under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The FHWA has determined that it is not a 
significant energy action under that order because it is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. Therefore, a Statement of Energy Effects under Executive 
Order 13211 is not required.

Executive Order 12372 (Intergovernmental Review)

    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.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. Since this action 
does require States to write reports, the FHWA requested approval from 
OMB under the provisions of the PRA. The FHWA received approval from 
OMB through March 31, 2010. The OMB control number is 2125-0025.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    The FHWA has analyzed this action under Executive Order 13045, 
Protection of Children From Environmental Health Risks and Safety 
Risks. The FHWA certifies that this action would not concern an 
environmental risk to health or safety that may disproportionately 
affect children.

Executive Order 12630 (Taking of Private Property)

    The FHWA does not anticipate that this action would affect a taking 
of private property or otherwise have taking implications under 
Executive Order 12630, Governmental Actions and Interference with 
Constitutionally Protected Property Rights.

National Environmental Policy Act

    The FHWA has analyzed this action for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has 
determined that it would not have any effect on the quality of the 
environment.

Regulation Identification Number

    A regulation identification number (RIN) is assigned 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. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

List of Subjects in 23 CFR Part 924

    Highway safety, Highways and roads, Motor vehicles, Railroads, 
Railroad safety, Safety, Transportation.

    Issued on: December 11, 2008.
Thomas J. Madison, Jr.,
Federal Highways Administrator.

0
In consideration of the foregoing, the FHWA revises part 924 to read as 
follows:

PART 924--HIGHWAY SAFETY IMPROVEMENT PROGRAM

Sec.
924.1 Purpose.
924.3 Definitions.
924.5 Policy.
924.7 Program structure.
924.9 Planning.
924.11 Implementation.
924.13 Evaluation.
924.15 Reporting.

    Authority: 23 U.S.C. 104(b)(5), 130, 148, 315, and 402; 49 CFR 
1.48(b).

Sec.  924.1  Purpose.

    The purpose of this regulation is to set forth policy for the 
development, implementation, and evaluation of a comprehensive highway 
safety improvement program (HSIP) in each State.


Sec.  924.3  Definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) are applicable to this part. In addition, the following 
definitions apply:
    Hazard index formula means any safety or crash prediction formula 
used for determining the relative likelihood of hazardous conditions at 
railway-highway grade crossings, taking into consideration weighted 
factors, and severity of crashes.
    High risk rural road means any roadway functionally classified as a 
rural major or minor collector or a rural local road--
    (1) On which the crash rate for fatalities and incapacitating 
injuries exceeds the statewide average for those functional classes of 
roadway; or
    (2) That will likely have increases in traffic volume that are 
likely to create a crash rate for fatalities and incapacitating 
injuries that exceeds the statewide average for those functional 
classes of roadway.
    Highway means,
    (1) A road, street, and parkway;
    (2) A right-of-way, bridge, railroad-highway crossing, tunnel, 
drainage structure, sign, guardrail, and protective structure, in 
connection with a highway; and
    (3) A portion of any interstate or international bridge or tunnel 
and the approaches thereto, the cost of which is assumed by a State 
transportation department, including such facilities as may be required 
by the United States Customs and Immigration Services in connection 
with the operation of an international bridge or tunnel; and
    (4) Those facilities specifically provided for the accommodation 
and protection of pedestrians and bicyclists.
    Highway-rail grade crossing protective devices means those traffic 
control devices in the Manual on Uniform Traffic Control Devices 
specified for use at such crossings; and system components associated 
with such traffic control devices, such as track circuit improvements 
and interconnections with highway traffic signals.
    Highway safety improvement program means the program carried out 
under 23 U.S.C. 130 and 148.
    Highway safety improvement project means a project consistent with 
the State strategic highway safety plan (SHSP) that corrects or 
improves a

[[Page 78966]]

hazardous road location or feature, or addresses a highway safety 
problem. Projects include, but are not limited to, the following:
    (1) An intersection safety improvement.
    (2) Pavement and shoulder widening (including addition of a passing 
lane to remedy an unsafe condition).
    (3) Installation of rumble strips or other warning devices, if the 
rumble strips or other warning devices do not adversely affect the 
safety or mobility of bicyclists, pedestrians and persons with 
disabilities.
    (4) Installation of a skid-resistant surface at an intersection or 
other location with a high frequency of crashes.
    (5) An improvement for pedestrian or bicyclist safety or for the 
safety of persons with disabilities.
    (6) Construction of any project for the elimination of hazards at a 
railway-highway crossing that is eligible for funding under 23 U.S.C. 
130, including the separation or protection of grades at railway-
highway crossings.
    (7) Construction of a railway-highway crossing safety feature, 
including installation of highway-rail grade crossing protective 
devices.
    (8) The conduct of an effective traffic enforcement activity at a 
railway-highway crossing.
    (9) Construction of a traffic calming feature.
    (10) Elimination of a roadside obstacle or roadside hazard.
    (11) Improvement of highway signage and pavement markings.
    (12) Installation of a priority control system for emergency 
vehicles at signalized intersections.
    (13) Installation of a traffic control or other warning device at a 
location with high crash potential.
    (14) Transportation safety planning.
    (15) Improvement in the collection and analysis of safety data.
    (16) Planning integrated interoperable emergency communications 
equipment, operational activities, or traffic enforcement activities 
(including law enforcement assistance) relating to work zone safety.
    (17) Installation of guardrails, barriers (including barriers 
between construction work zones and traffic lanes for the safety of 
road users and workers), and crash attenuators.
    (18) The addition or retrofitting of structures or other measures 
to eliminate or reduce crashes involving vehicles and wildlife.
    (19) Installation and maintenance of signs (including fluorescent 
yellow-green signs) at pedestrian-bicycle crossings and in school 
zones.
    (21) Construction and operational improvements on high risk rural 
roads.
    (22) Conducting road safety audits.
    Integrated interoperable emergency communication equipment means 
equipment that supports an interoperable emergency communications 
system.
    Interoperable emergency communications system means a network of 
hardware and software that allows emergency response providers and 
relevant Federal, State, and local government agencies to communicate 
with each other as necessary through a dedicated public safety network 
utilizing information technology systems and radio communications 
systems, and to exchange voice, data, or video with one another on 
demand, in real time, as necessary.
    Operational improvements means a capital improvement for 
installation of traffic surveillance and control equipment; 
computerized signal systems; motorist information systems; integrated 
traffic control systems; incident management programs; transportation 
demand management facilities, strategies, and programs; and such other 
capital improvements to public roads as the Secretary may designate by 
regulation.
    Public grade crossing means a railway-highway grade crossing where 
the roadway is under the jurisdiction of and maintained by a public 
authority and open to public travel. All roadway approaches must be 
under the jurisdiction of the public roadway authority, and no roadway 
approach may be on private property.
    Public road means any highway, road, or street under the 
jurisdiction of and maintained by a public authority and open to public 
travel.
    Road Safety Audit means a formal safety performance examination of 
an existing or future road or intersection by an independent 
multidisciplinary audit team.
    Safety data includes, but is not limited to, crash, roadway, 
traffic, and vehicle data on all public roads including, for railway-
highway grade crossings, the characteristics of both highway and train 
traffic.
    Safety projects under any other section means safety projects 
eligible for funding under Title 23, United States Code, including 
projects to promote safety awareness, public education, and projects to 
enforce highway safety laws.
    Safety stakeholder means
    (1) A highway safety representative of the Governor of the State;
    (2) Regional transportation planning organizations and metropolitan 
planning organizations, if any;
    (3) Representatives of major modes of transportation;
    (4) State and local traffic enforcement officials;
    (5) Persons responsible for administering section 130 at the State 
level;
    (6) Representatives conducting Operation Lifesaver;
    (7) Representatives conducting a motor carrier safety program under 
section 31102, 31106, or 31309 of title 49;
    (8) Motor vehicle administration agencies; and
    (9) Includes, but is not limited to, local, State, and Federal 
transportation agencies and tribal governments.
    Serious injury means an incapacitating injury or any injury, other 
than a fatal injury, which prevents the injured person from walking, 
driving, or normally continuing the activities the person was capable 
of performing before the injury occurred.
    State means any one of the 50 States and the District of Columbia.
    Strategic highway safety plan means a comprehensive, data-driven 
safety plan developed, implemented, and evaluated in accordance with 23 
U.S.C. 148.
    Transparency report means the report submitted to the Secretary 
annually under 23 U.S.C. 148(c)(1)(D) and in accordance with Sec.  
924.15 of this part that describes, in a clearly understandable 
fashion, not less than 5 percent of locations determined by the State 
as exhibiting the most severe safety needs; and contains an assessment 
of potential remedies to hazardous locations identified; estimated 
costs associated with those remedies; and impediments to implementation 
other than cost associated with those remedies.


Sec.  924.5  Policy.

    (a) Each State shall develop, implement, and evaluate on an annual 
basis a HSIP that has the overall objective of significantly reducing 
the occurrence of and the potential for fatalities and serious injuries 
resulting from crashes on all public roads.
    (b) Under 23 U.S.C. 148(a)(3), a variety of highway safety 
improvement projects are eligible for funding through the HSIP. In 
order for an eligible improvement to be funded with HSIP funds, States 
shall first consider whether the activity maximizes opportunities to 
advance safety. States shall fund safety projects or activities that 
are most likely to reduce the number of, or potential for, fatalities 
and serious injuries. Safety projects under any other section, and 
funded with 23 U.S.C. 148 funds, are only eligible

[[Page 78967]]

activities when a State is eligible to use up to 10 percent of the 
amount apportioned under 23 U.S.C. 104(b)(5) for a fiscal year in 
accordance with 23 U.S.C. 148(e). This excludes minor activities that 
are incidental to a specific highway safety improvement project.
    (c) Other Federal-aid funds are eligible to support and leverage 
the safety program. Improvements to safety features that are routinely 
provided as part of a broader Federal-aid project should be funded from 
the same source as the broader project. States should address the full 
scope of their safety needs and opportunities on all roadway categories 
by using other funding sources such as Interstate Maintenance (IM), 
Surface Transportation Program (STP), National Highway System (NHS), 
and Equity Bonus (EB) funds in addition to HSIP funds.
    (d) Eligibility for Federal funding of projects for traffic control 
devices under this Part is subject to a State and/or local 
jurisdiction's substantial conformance with National MUTCD or FHWA 
approved State MUTCDs and supplements in accordance with part 655, 
Subpart F, of this title.


Sec.  924.7  Program structure.

    (a) The HSIP shall include a data-driven SHSP and the resulting 
implementation through highway safety improvement projects. The HSIP 
includes construction and operational improvements on high risk rural 
roads, and elimination of hazards at railway-highway grade crossings.
    (b) The HSIP shall include processes for the planning, 
implementation, and evaluation of the HSIP and SHSP. These processes 
shall be developed by the States in consultation with the FHWA Division 
Administrator in accordance with this section. Where appropriate, the 
processes shall be developed cooperatively with officials of the 
various units of local and tribal governments. The processes may 
incorporate a range of procedures appropriate for the administration of 
an effective HSIP on individual highway systems, portions of highway 
systems, and in local political subdivisions, and when combined, shall 
cover all public roads in the State.


Sec.  924.9  Planning.

    (a) The HSIP planning process shall incorporate:
    (1) A process for collecting and maintaining a record of crash, 
roadway, traffic and vehicle data on all public roads including for 
railway-highway grade crossings inventory data that includes, but is 
not limited to, the characteristics of both highway and train traffic.
    (2) A process for advancing the State's capabilities for safety 
data collection and analysis by improving the timeliness, accuracy, 
completeness, uniformity, integration, and accessibility of the State's 
safety data or traffic records.
    (3) A process for analyzing available safety data to:
    (i) Develop a HSIP in accordance with 23 U.S.C. 148(c)(2) that:
    (A) Identifies highway safety improvement projects on the basis of 
crash experience, crash potential, or other data supported means as 
identified by the State, and establishes the relative severity of those 
locations;
    (B) Considers the relative hazard of public railway-highway grade 
crossings based on a hazard index formula; and
    (C) Establishes an evaluation process to analyze and assess results 
achieved by the HSIP and uses this information, where appropriate, in 
setting priorities for future projects.
    (ii) Develop and maintain a data-driven SHSP that:
    (A) Is developed after consultation with safety stakeholders;
    (B) Makes effective use of State, regional, and local crash data 
and determines priorities through crash data analysis;
    (C) Addresses engineering, management, operation, education, 
enforcement, and emergency services;
    (D) Considers safety needs of all public roads;
    (E) Adopts a strategic safety goal;
    (F) Identifies key emphasis areas and describes a program of 
projects, technologies, or strategies to reduce or eliminate highway 
safety hazards;
    (G) Adopts performance-based goals, coordinated with other State 
highway safety programs, that address behavioral and infrastructure 
safety problems and opportunities on all public roads and all users, 
and focuses resources on areas of greatest need and the potential for 
the highest rate of return on the investment of HSIP funds;
    (H) Identifies strategies, technologies, and countermeasures that 
significantly reduce highway fatalities and serious injuries in the key 
emphasis areas giving high priority to cost effective and proven 
countermeasures;
    (I) Determines priorities for implementation;
    (J) Is consistent, as appropriate, with safety-related goals, 
priorities, and projects in the long-range statewide transportation 
plan and the statewide transportation improvement program and the 
relevant metropolitan long-range transportation plans and 
transportation improvement programs that are developed as specified in 
23 U.S.C. 134, 135 and 402; and 23 CFR part 450;
    (K) Documents the process used to develop the plan;
    (L) Proposes a process for implementation and evaluation of the 
plan;
    (M) Is approved by the Governor of the State or a responsible State 
agency official that is delegated by the Governor of the State; and
    (N) Has been developed using a process approved by the FHWA 
Division Administrator.
    (iii) Develop a High Risk Rural Roads program using safety data 
that identifies eligible locations on State and non-State owned roads 
as defined in Sec.  924.3, and analyzes the highway safety problem to 
identify safety concerns, identify potential countermeasures, select 
projects, and prioritize high risk rural roads projects on all public 
roads.
    (iv) Develop a Railway-Highway Grade Crossing program that:
    (A) Considers the relative hazard of public railway-highway grade 
crossings based on a hazard index formula;
    (B) Includes onsite inspection of public grade crossings;
    (C) Considers the potential danger to large numbers of people at 
public grade crossings used on a regular basis by passenger trains, 
school buses, transit buses, pedestrians, bicyclists, or by trains and/
or motor vehicles carrying hazardous materials; and
    (D) Results in a program of safety improvement projects at railway-
highway grade crossings giving special emphasis to the statutory 
requirement that all public crossings be provided with standard signing 
and markings.
    (4) A process for conducting engineering studies (such as roadway 
safety audits and other safety assessments or reviews) of hazardous 
locations, sections, and elements to develop highway safety improvement 
projects.
    (5) A process for establishing priorities for implementing highway 
safety improvement projects considering:
    (i) The potential reduction in the number of fatalities and serious 
injuries;
    (ii) The cost effectiveness of the projects and the resources 
available;
    (iii) The priorities in the SHSP;
    (iv) The correction and prevention of hazardous conditions;
    (v) Other safety data-driven criteria as appropriate in each State; 
and
    (vi) Integration with the statewide transportation planning process 
and statewide transportation improvement program, and metropolitan

[[Page 78968]]

transportation planning process and transportation improvement program 
where applicable, in 23 CFR part 450.
    (b) The planning process of the HSIP may be financed with funds 
made available through 23 U.S.C. 130, 133, 148, 402, and 505 and, where 
applicable in metropolitan planning areas, through 23 U.S.C. 104(f).
    (c) Highway safety improvement projects shall be carried out as 
part of the Statewide and Metropolitan Transportation Planning Process 
consistent with the requirements of 23 U.S.C. 134 and 135, and 23 CFR 
part 450.


Sec.  924.11  Implementation.

    (a) The HSIP shall be implemented in accordance with the 
requirements of Sec.  924.9 of this part.
    (b) A State is eligible to use up to 10 percent of the amount 
apportioned under 23 U.S.C. 104(b)(5) for each fiscal year to carry out 
safety projects under any other section, consistent with the SHSP and 
as defined in 23 U.S.C. 148(a)(4), if the State can certify that it has 
met infrastructure safety needs relating to railway-highway grade 
crossings and highway safety improvement projects for a given fiscal 
year. In order for a State to obtain approval:
    (1) A State must submit a written request for approval to the FHWA 
Division Administrator for each year that a State certifies that the 
requirements have been met before a State may use these funds to carry 
out safety projects under any other section; and
    (2) A State must submit a written request that describes how the 
certification was made, the activities that will be funded, how the 
activities are consistent with the SHSP, and the dollar amount the 
State estimates will be used.
    (c) If a State has funds set aside from 23 U.S.C. 104(b)(5) for 
construction and operational improvements on high risk rural roads, in 
accordance with 23 U.S.C. 148(a)(1), such funds:
    (1) Shall be used for safety projects that address priority high 
risk rural roads as determined by the State.
    (2) Shall only be used for construction and operational 
improvements on high risk rural roads and the planning, preliminary 
engineering, and roadway safety audits related to specific high risk 
rural roads improvements.
    (3) May also be used for other highway safety improvement projects 
if the State certifies that it has met all infrastructure safety needs 
for construction and operational improvements on high risk rural roads 
for a given fiscal year.
    (d) Funds set aside pursuant to 23 U.S.C. 148 for apportionment 
under the 23 U.S.C. 130(f) Railway-Highway Grade Crossing Program, are 
to be used to implement railway-highway grade crossing safety projects 
on any public road. At least 50 percent of the funds apportioned under 
23 U.S.C. 130(f) must be made available for the installation of 
highway-rail grade crossing protective devices. The railroad share, if 
any, of the cost of grade crossing improvements shall be determined in 
accordance with 23 CFR part 646, Subpart B (Railroad-Highway Projects). 
If a State demonstrates to the satisfaction of the FHWA Division 
Administrator that the State has met its needs for installation of 
protective devices at railway-highway grade crossings the State may use 
funds made available under 23 U.S.C. 130 for highway safety improvement 
program purposes. In addition, up to 2 percent of the section 130 funds 
apportioned to a State may be used for compilation and analysis of 
safety data for the annual report to the FHWA Division Administrator 
required under Sec.  924.15(a)(2) on the progress being made to 
implement the railway-highway grade crossing program.
    (e) Highway safety improvement projects may also be implemented 
with other funds apportioned under 23 U.S.C. 104(b) subject to the 
eligibility requirements applicable to each program.
    (f) Award of contracts for highway safety improvement projects 
shall be in accordance with 23 CFR part 635 and part 636, where 
applicable, for highway construction projects, 23 CFR part 172 for 
engineering and design services contracts related to highway 
construction projects, or 49 CFR part 18 for non-highway construction 
projects.
    (g) All safety projects funded under 23 U.S.C. 104(b)(5), including 
safety projects under any other section, shall be accounted for in the 
statewide transportation improvement program and reported on annually 
in accordance with Sec.  924.15.
    (h) The Federal share of the cost for most highway safety 
improvement projects carried out with funds apportioned to a State 
under 23 U.S.C. 104(b)(5) shall be a maximum of 90 percent. In 
accordance with 23 U.S.C. 120(a) or (b), the Federal share may be 
increased to a maximum of 95 percent by the sliding scale rates for 
States with a large percentage of Federal lands. In accordance with 23 
U.S.C. 120(c), projects such as roundabouts, traffic control 
signalization, safety rest areas, pavement markings, or installation of 
traffic signs, traffic lights, guardrails, impact attenuators, concrete 
barrier end treatments, breakaway utility poles, or priority control 
systems for emergency vehicles or transit vehicles at signalized 
intersections may be funded at up to 100 percent Federal share, except 
not more than 10 percent of the sums apportioned under 23 U.S.C. 104 
for any fiscal year shall be used at this Federal share rate. In 
addition, for railway-highway grade crossings, the Federal share may 
amount up to 100 percent for projects for signing, pavement markings, 
active warning devices, and crossing closures, subject to the 10 
percent limitation for funds apportioned under 23 U.S.C. 104 in a 
fiscal year.
    (i) The implementation of the HSIP in each State shall include a 
process for implementing highway safety improvement projects in 
accordance with the procedures set forth in 23 CFR part 630, Subpart A 
(Preconstruction Procedures: Project Authorization and Agreements).


Sec.  924.13  Evaluation.

    (a) The HSIP evaluation process shall include the evaluation of the 
overall HSIP and the SHSP. It shall:
    (1) Include a process to analyze and assess the results achieved by 
the HSIP in reducing the number of crashes, fatalities and serious 
injuries, or potential crashes, and in reaching the performance goals 
identified in Sec.  924.9(a)(3)(ii)(G).
    (2) Include a process to evaluate the overall SHSP on a regular 
basis as determined by the State and in consultation with the FHWA to:
    (i) Ensure the accuracy and currency of the safety data;
    (ii) Identify factors that affect the priority of emphasis areas, 
strategies, and proposed improvements; and
    (iii) Identify issues that demonstrate a need to revise or 
otherwise update the SHSP.
    (b) The information resulting from the process developed in Sec.  
924.13(a)(1) shall be used:
    (1) For developing basic source data in the planning process in 
accordance with Sec.  924.9(a)(1);
    (2) For setting priorities for highway safety improvement projects;
    (3) For assessing the overall effectiveness of the HSIP; and
    (4) For reporting required by Sec.  924.15.
    (c) The evaluation process may be financed with funds made 
available under 23 U.S.C. 104(b)(1), (3), and (5), 105, 402, and 505, 
and for metropolitan planning areas, 23 U.S.C. 104(f).


Sec.  924.15  Reporting.

    (a) For the period of the previous year, each State shall submit to 
the FHWA

[[Page 78969]]

Division Administrator no later than August 31 of each year the 
following reports related to the HSIP in accordance with 23 U.S.C. 
148(g):
    (1) A report with a defined one year reporting period describing 
the progress being made to implement the State HSIP that:
    (i) Describes the progress in implementing the projects, including 
the funds available, and the number and general listing of the types of 
projects initiated. The general listing of the projects initiated shall 
be structured to identify how the projects relate to the State SHSP and 
to the State's safety goals and objectives. The report shall also 
provide a clear description of the project selection process;
    (ii) Assesses the effectiveness of the improvements. This section 
shall: Provide a demonstration of the overall effectiveness of the 
HSIP; include figures showing the general highway safety trends in the 
State by number and by rate; and describe the extent to which 
improvements contributed to performance goals, including reducing the 
number of roadway crashes leading to fatalities and serious injuries.
    (iii) Describes the High Risk Rural Roads program, providing basic 
program implementation information, methods used to identify high risk 
rural roads, information assessing the High Risk Rural Roads program 
projects, and a summary of the overall High Risk Rural Roads program 
effectiveness.
    (2) A report describing progress being made to implement railway-
highway grade crossing improvements in accordance with 23 U.S.C. 
130(g), and the effectiveness of these improvements.
    (3) A transparency report describing not less than 5 percent of a 
State's highway locations exhibiting the most severe safety needs that:
    (i) Identifies potential remedies to those hazardous locations; 
estimates costs associated with the remedies; and identifies 
impediments to implementation other than cost associated with those 
remedies;
    (ii) Emphasizes fatality and serious injury data;
    (iii) At a minimum, uses the most recent three to five years of 
crash data;
    (iv) Identifies the data years used and describes the extent of 
coverage of all public roads included in the data analysis;
    (v) Identifies the methodology used to determine how the locations 
were selected; and
    (vi) Is compatible with the requirements of 29 U.S.C. 794(d), 
Section 508 of the Rehabilitation Act.
    (b) The preparation of the State's annual reports may be financed 
with funds made available through 23 U.S.C. 104(b)(1), (3), and (5), 
105, 402, and 505, and for metropolitan planning areas, 23 U.S.C. 
104(f).

 [FR Doc. E8-30168 Filed 12-23-08; 8:45 am]
BILLING CODE 4910-22-P