Certification of Speed Limit Enforcement; Revision of Procedures |
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Rodney E. Slater
Federal Highway Administration
Christopher A. Hart
National Highway Traffic Safety Administration
15 June 1994
[Federal Register Volume 59, Number 114 (Wednesday, June 15, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-14463] [[Page Unknown]] [Federal Register: June 15, 1994] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Highway Administration National Highway Traffic Safety Administration 23 CFR Part 1260 [Docket No. 93-8; Notice 4] RIN 2127-AE52 Certification of Speed Limit Enforcement; Revision of Procedures AGENCY: Federal Highway Administration (FHWA) and National Highway Traffic Safety Administration (NHTSA), Department of Transportation. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This notice amends 23 CFR 1260 by establishing additional sanctions against a State having a compliance score exceeding the national maximum speed limit (NMSL) compliance score for any consecutive year after a year of non-compliance. The purpose of this revision is to encourage non-complying States to make efforts to reduce their scores in years succeeding any year in which they exceed the NMSL compliance score. EFFECTIVE DATE: July 15, 1994. FOR FURTHER INFORMATION CONTACT: In FHWA, Julie Anna Cirillo, Chief, Information Management and Analysis Branch, 202-366-2170. In NHTSA, J. Michael Sheehan, Chief, Police Traffic Services Division, 202-366-4295. SUPPLEMENTARY INFORMATION: Background The 55 mph NMSL was first instituted in 1974. FHWA and NHTSA have shared responsibility for the enforcement of the NMSL. The Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) required the Secretary of Transportation to change the regulation governing the NMSL. Because of this statutory mandate, FHWA and NHTSA published a notice of proposed rulemaking (NPRM) to amend this regulation in the Federal Register on January 4, 1993 (58 FR 186). ISTEA required that the new rule establish speed limit compliance requirements on 65 mph roads, in addition to 55 mph roads, and include a formula for determining compliance by the States with such requirements. On October 22, 1993, NHTSA and FHWA published a final rule in the Federal Register (58 FR 54812), which revised the NMSL procedures in 23 CFR 1260 to provide that the penalty transfer of highway construction funds to 23 U.S.C. Sec. 402 programs would not exceed the greater of (i) one and one-half percent of the construction funds, or (ii) the total section 402 apportionment for the applicable fiscal year. A subsequent year penalty was not proposed in the NPRM and, therefore, was not incorporated into the final rule. Some commenters, in response to the NPRM, objected to the absence of incentives in the NPRM for States to seek improvement in their NMSL compliance scores. One commenter suggested that a subsequent year penalty for non-compliance could provide such incentives. As adopted, the regulation provided that a non-complying State would transfer the same amount of funds year after year, which would have a minimal impact, especially in view of the graduated penalty categories that were utilized. The agencies therefore published a Supplemental Notice of Proposed Rulemaking which was published in the Federal Register on October 22, 1993 (58 FR 54832) (the SNPRM) on the same day as the final rule (58 FR 54812), to propose to add subsection (d) to 23 CFR Sec. 1260.19, which would impose an additional one percent penalty on States that failed to comply in successive years. This change to the regulation would have the effect of transferring a maximum of two and one-half percent of the funds apportioned to the State for Federal-aid highways and highway safety construction programs under section 104(b) of Title 23, United States Code (other than paragraph (5)) to the State's apportionment under 23 U.S.C. 402 for the fiscal year. Under the SNPRM, the maximum amount would be transferred if such State (1) was in the highest penalty category pursuant to Sec. 1260.19(c) (i)-(iv) in the immediately previous fiscal year and (2) did not improve its score in the current fiscal year so as to be within the range of scores for the applicable second highest penalty category established in Sec. 1260.19(c) (i)-(iv). A non-complying State could avoid the additional one percent penalty transfer if it improved its score into a lower penalty category. Such a State would then be subject only to the amount of penalty for that category under Sec. 1260.19(c). If a non-complying State remained in its former penalty category, or had a worse score which moved it into a higher category, the State's penalty transfer would be the transfer amount for that category plus the additional one percent penalty. The agencies also proposed to make a minor revision to Sec. 1260.21(c) to clarify that the 23 U.S.C. Sec. 402 apportionment amount could be exceeded for successive year penalty transfers. Discussion of Comments The agencies received responses from eleven commenters. Some of the comments concerned matters that were not specifically related to the subsequent year penalty issue and had been resolved in the final rule published on October 22, 1993. For example, comments from the Michigan State Police, the Department of California Highway Patrol and the Illinois Department of Transportation opposed altogether the imposition of economic sanctions. These commenters expressed the belief that these sanctions are counterproductive and misdirect excessive attention to speed compliance issues. As the agencies explained in their October 22, 1993 final rule, the requirement that sanctions be imposed to encourage speed limit control on NMSL roadways is statutorily mandated. Similarly, Advocates for Highway and Auto Safety (Advocates) and the Michigan State Police recommended that transferred funds should be designated for a limited number of purposes. The agencies had proposed, in the January 3, 1993 NPRM that transferred funds would be used principally for speed limit enforcement, but decided in the October 1993 final rule, for the reasons described therein, not to specify the use of funds for speed limit enforcement or any other specific highway safety program. The Michigan State Police also made a number of suggestions regarding the speed compliance criteria to be used to determine whether States would be subject to penalties. For example, Michigan recommended that the nationwide compliance threshold be revised to reflect the 85th percentile speed, that no transfer should take place if a State's fatal accident rate is below the national average, and that the agencies consider whether a State's noncompliance rate contributed to the State's fatality rate. Persons interested in reviewing a full discussion regarding the speed compliance criteria that the agencies decided to adopt, and the reasons for this decision, should read the October 22, 1993 final rule. Among the commenters responding to the issues raised by the SNPRM, the Alaska Department of Public Safety, the California Highway Patrol, the Indiana Department of Transportation, the Nevada Department of Transportation and others opposed additional penalties for successive year non-compliance. The Virginia State Police questioned the use of the words ``improvement incentive'' to describe what the agencies had proposed in the SNPRM. These commenters argued that the final rule had already gone too far, and that additional sanctions were unnecessary and inappropriate. The National Association of Governors' Highway Safety Representatives (NAGHSR) commented that the SNPRM was necessary to prevent States from being terminally out of compliance, and Advocates said the SNPRM didn't go far enough to penalize non-complying States. The Indiana Department of Transportation, the Alaska Department of Public Safety and the Virginia State Police commented that additional funding sanctions would only serve to pit State road construction departments against the various State safety agencies. Amount of Transfer and Section 402 Apportionment The Department of California Highway Patrol, NAGHSR, the New York State Police and Advocates for Highway and Auto Safety had various views of the Congressional intent concerning the amount of the transfer to the section 402 apportionment being used as an additional penalty for successive year NMSL non-compliance. The Nevada Department of Transportation and others stated that a transfer of too much money could overburden and render ineffective a State's highway safety program. Advocates proposed that the imposition of additional penalties should not be limited to successive year non-compliance. They recommended additional funds transfer penalties for any subsequent year non-compliance, and suggested that the penalties should accumulate, up to a maximum of ten percent of a State's Federal highway construction funds apportioned under 23 U.S.C. Sec. 104(b). The California Highway Patrol commented that the preamble to the SNPRM seemed to indicate that the successive year sanctions would not accumulate, but expressed concerned that the proposed regulatory language could be read to provide for a penalty that exceeds two and one-half percent and requested clarification on this issue. As explained in the SNPRM, section 1029(c)(1)(A) of ISTEA provides ``* * * for the transfer of apportionments under section 104(b) of Title 23, United States Code (other than paragraph (5)), if a State fails to enforce speed limits in accordance with this section, [and the implementing regulation].'' However, the legislation did not specify the amount of the apportionments to be transferred. The House bill had provided that the amount to be transferred would range from one to five percent of the designated apportionments for the first year of non-compliance and from two to ten percent for two or more consecutive years of non-compliance. The amounts were to be transferred to the highway safety grant programs authorized under 23 U.S.C. Sec. 402. The Senate bill did not provide for a transfer of apportionments. In adopting the House's transfer penalty without the House language pertaining to amounts, the conferees included the following statement on page 328 of the report accompanying the conference bill: The Conference Substitute applies that same reprogramming provision and Secretarial discretion with regard to the percentage transferred as in the House bill. In reviewing the range of transfers in the House bill for the purpose of proposing a reasonable amount to be utilized by a non- complying State, the agencies determined that one and one-half percent of the designated apportionment for each State approximated the total amount of its 402 program. The NPRM therefore proposed a one and one- half percent transfer to the section 402 program, with the funds to be used principally for speed limit enforcement. In the final rule the agencies adopted the one and one-half percent transfer, but decided not to specify the use of funds for speed limit enforcement or any other specific highway safety program. Since the final rule provided additional flexibility to States to use the transferred funds for speed enforcement and other highway safety activities, the agencies reconsidered their proposal to limit the amount transferred, and requested comments in the SNPRM about revising the regulation to provide that the amount transferred may exceed the total Sec. 402 program fiscal year apportionment in years successive to a year in which a State's compliance score is greater than the maximum allowable compliance score. The agencies stated that this kind of penalty transfer, which would permit an increase to as high as two and one-half percent of the funds apportioned for highway construction, would more closely follow the intent of the House bill for States that fail to comply in successive years. As proposed, the agencies have decided to impose an additional one percent penalty on any State that is out of compliance and does not make sufficient improvement to reduce its penalty in two or more consecutive years. The agencies believe that limiting the additional penalty to consecutive year non-compliance also closely follows Congressional intent. The maximum penalty that could be imposed would be two and one-half percent of the funds apportioned to the State for Federal-aid highways and highway safety construction programs under section 104(b) of Title 23, United States Code (other than paragraph (5)). The additional one percent penalty would not accumulate from year to year. Based on the arguments of some of the commenters regarding the amount of money that may be meaningfully spent on highway safety in any given year, the agencies have decided that the transferred funds in any fiscal year shall not exceed one and one-half times the total section 402 apportionment for that fiscal year. Increasing the penalty beyond this amount for subsequent year non-compliance could overwhelm any State's section 402 budget. For example, if the penalty were not subject to a limitation, States like Connecticut and Wyoming could be subject to withholdings that amount to as much as 2.2 and 2.3 times their section 402 budget, respectively (based on fiscal year 1992 funding levels). By limiting the amount of the penalty to one and one-half times the State's section 402 apportionment, the maximum subsequent year penalty for these States would be 1.7 percent of highway construction fund apportionments and 1.6 percent, respectively (based on fiscal year 1992 funding levels). In order to avoid penalty funding levels that cannot be effectively spent on safety programs, the agencies have amended Sec. 1260.21(c) to cap any subsequent year penalty transfer at one and one-half times the total section 402 apportionment. The SNPRM contained a typographical error in the last line of Sec. 1260.19(d), which referred to ``(a)(1)'' instead of ``(c)(1).'' This notice corrects the error. Proportionate Penalty Reduction The SNPRM solicited comments on whether States should be provided some relief from additional penalties if they show a specific amount of improvement in their compliance score even though their compliance score might not place them in a lower category. NAGHSR and the Illinois Department of Transportation generally supported this concept. However, other commenters did not express opinions about this approach. The Department of California Highway Patrol proposed Federal-State negotiations rather than a mathematical formula. However, the agencies prefer a formula which avoids discretionary decisions and clearly shows the States what the result of non- compliance will be. After considering an even more graduated penalty strategy, as suggested by NAGHSR and the Illinois Department of Transportation, the agencies have decided to reject the creation of additional categories, particularly since the current range between penalty categories approximates only 10 percent of the total score. The agencies have neither received nor seen any evidence that additional graduations in the categories would make the current scheme more fair, and further mathematical complications are therefore unnecessary. Regulatory Analyses and Notices Executive Order 12866 and DOT Regulatory Policies and Procedures; NHTSA and FHWA have considered the impact of this rulemaking action under E.O. 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed by the Office of Management and Budget under E.O. 12866, ``Regulatory Planning and Review.'' This final action has been determined to be not ``significant'' under the Department of Transportation's regulatory policies and procedures. The agencies prepared an addendum to the Final Regulatory Evaluation (AFRE) in June, 1993, for the SNPRM, and made it available in the public docket. A copy of the Final Regulatory Evaluation (FRE) and the AFRE may be obtained by writing to Docket 93- 8, HCC-10, Federal Highway Administration, room 4232, 400 Seventh Street SW., Washington, DC 20590. The FRE indicates that at least three States (Connecticut, Massachusetts and Wyoming) could be subject to the subsequent year penalty if they are not able to improve their compliance scores during subsequent years. The SNPRM proposed to establish a maximum penalty transfer of 2.5 percent for a non-complying State in a subsequent year. Under this final rule, any subsequent year penalty cannot exceed one and one-half times the 23 U.S.C. 402 apportionment of a non-complying State for that fiscal year. Based on fiscal year 1992 funding levels and the final rule, the maximum subsequent year penalty for that year would be 1.7 percent of highway construction fund apportionments for Connecticut, 2.5 percent for Massachusetts, and 1.6 percent for Wyoming. There would, of course, be no impact on complying States. Regulatory Flexibility Act: NHTSA and FHWA have also considered the impacts of this final rule under the Regulatory Flexibility Act. We hereby certify that this rule will not have a significant economic impact on a substantial number of small entities. The FRE concludes that there is no significant impact on small businesses since the portion of the highway construction funds going to noncomplying States is not lost, but only transferred to highway safety programs. Accordingly, the preparation of a Regulatory Flexibility Analysis is unnecessary. Paperwork Reduction Act: The requirement relating to this proposal, that each State must submit speed data and related certification information necessary to calculate its compliance score, is considered to be an information collection requirement, as that term is defined by the Office of Management and Budget (OMB) in 5 CFR part 1320. Accordingly, this information collection requirement has been previously submitted to and approved by OMB, pursuant to the provisions of the Paperwork Reduction Act (44 U.S.C. 3501, et seq.). The requirement has been approved through January 31, 1996, with the OMB control number 2125-0027. This revision to the regulation contains no additional information collection requirement. National Environmental Policy Act: The agencies have analyzed this action for the purpose of compliance with the National Environmental Policy Act and have determined that it does not have a significant effect on the human environment. Executive Order 12612 (Federalism): This action has been analyzed in accordance with Executive Order 12612, concerning Federalism. The rule's provisions are likely to affect the allocations of States' resources, the way they measure their success in traffic law enforcement, relationships among State agencies, and the distribution of Federal funds between States' highway construction and safety programs. All of these effects may fairly be regarded as Federalism impacts. However, the basic requirements of the rule (i.e., the potential redistribution of Federal funds) are mandated by statute, so the agencies do not have discretion to mitigate these impacts. The agencies have carefully considered the comments of State agencies in shaping the details of the rule. Civil Justice Reform: This change to the regulation does not have any preemptive or retroactive effect. It imposes no requirements on the States, but rather encourages States to consider enacting and enforcing legislation requiring speed limits and speed limit enforcement through the potential redesignation of Federal highway construction funds to safety programs. Any redesignation of funds would not take place until FY 1997. If a non-complying State (1) submits data showing that its highway speeds are below certain national levels, and (2) a certification from the Governor reporting that the State is enforcing the speed limits on public highways in accordance with 23 U.S.C. 154, then it shall not be subject to the proposed subsequent year sanction which redesignates an additional amount of funds to the State's apportionment of safety grant programs. The transfer amount for first year non-compliance could be as high as two and one-half percent of a State's apportionment for Federal-aid highways and highway safety construction programs. However, any subsequent year penalty cannot exceed one and one-half times the 23 U.S.C. 402 apportionment of a non- complying State for that fiscal year. The authorizing legislation for the proposed rule does not establish a procedure for judicial review of final rules promulgated under its provisions. There is no requirement that individuals submit a petition for reconsideration or other administrative proceedings before they may file suit in court. List of Subjects in 23 CFR Part 1260 Grant programs--Transportation, Highways and roads, Motor vehicles, Reporting and recordkeeping requirements, Speed limit, Traffic regulations. (Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program) PART 1260--CERTIFICATION OF SPEED LIMIT ENFORCEMENT In consideration of the foregoing, 23 CFR 1260 is amended to read as follows: 1. The authority citation for part 1260 continues to read as follows: Authority: 23 U.S.C. 118, 141, 154, 315 and delegations of authority at 49 CFR 1.48 and 1.50. 2. Paragraph (d) is added to Sec. 1260.19 as follows: Sec. 1260.19 Effect of failure to certify or to meet compliance standards. * * * * * (d) An additional one percent of the funds apportioned to the State under 23 U.S.C. 104(b)(1), 104(b)(2), 104(b)(3), 104(b)(4) and 104(b)(6) shall be transferred pursuant to subsection (b) of this section to the State's highway safety grant program fund under 23 U.S.C. 402 for the fiscal year subsequent to the fiscal year in which the State submitted its compliance score if the Secretary determines that the State's compliance score calculated pursuant to Sec. 1260.15(d) is in the same or a higher penalty category as the State's compliance score submitted in the prior fiscal year, as provided by paragraphs (c) (1) through (4) of this section. * * * * * 3. Section 1260.21 is amended by revising paragraph (c) as follows: Sec. 1260.21 Penalty reduction and notification of noncompliance. * * * * * (c) The State shall expend any transferred funds pursuant to Secs. 1260.19(b) and 1260.19(d) for section 402 programs within that State. In no instance shall the transfer under Sec. 1260.19(b) exceed the total section 402 apportionment for that fiscal year, prior to any penalty reduction, and in no instance shall the total transferred funds under Secs. 1260.19(b) and 1260.19(d) exceed one and one-half times the total section 402 apportionment for any fiscal year. * * * * * Issued on: June 9, 1994. Rodney E. Slater, Administrator, Federal Highway Administration. Christopher A. Hart, Deputy Administrator, National Highway Traffic Safety Administration. [FR Doc. 94-14463 Filed 6-14-94; 8:45 am] BILLING CODE 4910-22-P