Federal Register, Volume 73 Issue 80 (Thursday, April 24, 2008)

[Federal Register Volume 73, Number 80 (Thursday, April 24, 2008)]
[Proposed Rules]
[Pages 22092-22100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8742]

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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: Notice of proposed rule making (NPRM); request for comments.

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SUMMARY: The purpose of this notice of proposed amendments 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 23 CFR part 924 was originally written.

DATES: Comments must be received on or before June 23, 2008.

ADDRESSES: Mail or hand deliver comments to the U.S. Department of
Transportation, Dockets Management Facility, 1200 New Jersey Avenue,
SE., Washington, DC 20590, or submit electronically at http://www.regulations.gov or fax comments to (202) 493-2251. All comments
should include the docket number that appears in the heading of this
document. All comments received will be available for examination and
copying at the above address from 9 a.m. to 5 p.m., e.t., Monday
through Friday, except Federal holidays. Those desiring notification of
receipt of comments must include a self-addressed, stamped postcard or
may print the acknowledgment page that appears after submitting
comments

[[Page 22093]]

electronically. Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70, Pages 19477-78), or you may visit
http://www.regulations.gov.

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

You may submit or access all comments received by the DOT 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. Please follow the instructions. 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 August 10, 2005, the President signed into law the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (known in short as SAFETEA-LU). SAFETEA-LU established a new
core Highway Safety Improvement Program (HSIP) structured and funded to
make significant progress in reducing highway fatalities.
Apportionments for the program are made in accordance with 23 U.S.C.
104(b)(5), with the statutory requirements for the program established
in section 148 of the same title. Following the adoption of SAFETEA-LU,
FHWA issued several guidance documents \1\ to provide States with
information regarding the new legislation. The FHWA proposes to amend
the regulations at 23 CFR part 924 Highway Safety Improvement Program
to incorporate the new statutory requirements and to provide State and
local safety partners with information on the purpose, definitions,
policy, program structure, planning, implementation, evaluation, and
reporting of HSIP. The proposed language follows the same format and
section titles as the existing provisions in part 924, however, the
following amendments are proposed.
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\1\ The following guidance documents: ``HSIP Funds 10 Percent
Flexibility Implementation Guidance,'' ``Strategic Highway Safety
Plans: A Champions Guide to Saving Lives,'' ``High Risk Rural Roads
Program (HRRRP) Guidance,'' ``Guidance Highway Safety Improvement
Program 23 U.S.C. 148(c)(1)(D) `5 Percent Report,' '' ``Guidance on
23 U.S.C. 130 Annual Reporting Requirements for Railway-Highway
Crossings,'' and ``Highway Safety Improvement Program Reporting
Requirements 23 U.S.C. 148(g)'' can be found on FHWA's Web site at
http://safety.fhwa.dot.gov.
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Section 924.1 Purpose

The FHWA proposes to add evaluation to the list of components of a
comprehensive HSIP. While evaluation has always been a requirement of
the HSIP, the FHWA proposes this change to emphasize that evaluation is
a critical element of the program and the results of the evaluation
shall be used as inputs into the development of new projects.
Evaluation is a requirement of the program per 23 U.S.C. 148(c)(1)(C)
including evaluation of the State's strategic highway safety plan
(SHSP) on a regular basis.

Section 924.3 Definitions

The FHWA proposes to add 17 definitions. The FHWA proposes to add
definitions for ``highway safety improvement program,'' ``highway
safety improvement project,'' ``high risk rural road,'' ``safety
projects under any other section,'' and ``strategic highway safety
plan'' using the definitions in 23 U.S.C. 148(a) as a basis for the
proposed definitions. The FHWA also proposes to add definitions for the
following terms: ``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,'' ``road safety audit,'' ``safety data,'' ``safety
stakeholder,'' ``serious injury,'' and ``transparency report.'' These
terms are used in the text of the proposed regulations.

Section 924.5 Policy

The FHWA proposes to revise this section to indicate that in
addition to developing and implementing a HSIP, each State shall
evaluate the program on a continuing basis. The FHWA believes that
evaluation is a critical component of the policy because it enables
States to determine the success of their programs. The FHWA proposes to
amend the section to indicate that the overall objective of the HSIP
shall be to decrease the potential for crashes and to significantly
reduce fatalities and serious injuries from crashes on all public
roads. The FHWA proposes to include the word ``significantly'' to
correspond with statutory language in 23 U.S.C. 148(b)(2). The FHWA
proposes adding the phrase ``fatalities and serious injuries resulting
from crashes'' to also correspond to the statutory language describing
the program purpose and also to explicitly emphasize that the goal is
to reduce fatalities and serious injuries, rather than merely the
``number and severity of accidents'' referenced in existing part 924.
The FHWA also proposes adding two additional paragraphs (b and c)
to this section to provide information about the funding mechanisms
available for highway safety improvement projects, as well as to
indicate the period of availability for the funds. The FHWA proposes to
add paragraph (b) to emphasize that States shall consider safety
projects and activities that maximize opportunities to advance safety
by addressing locations and treatments with the highest potential for
future crash reduction. The FHWA recommends that States use their funds
to maximize the safety benefits, such as making low-cost safety
improvements in areas yielding relatively high safety impacts. The FHWA
proposes to add paragraph (c) to clarify 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.
States should integrate safety elements into all roadway projects,
regardless of the funding source. States should consider using HSIP for
low-cost, high-impact projects in order to use available funding as
efficiently and effectively as possible.
The purpose of this policy section is to promote the adoption by
the States of proactive and aggressive measures, as well as reactive
activities, in their safety programs.

Section 924.7 Program Structure

The FHWA proposes to add a paragraph requiring that the HSIP in
each State include a data-driven SHSP and a resulting implementation
through all roadway improvement projects, in addition to highway safety
improvement projects. The proposed language would require 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 proposes these changes to clarify that a SHSP
is to be data-driven, and

[[Page 22094]]

that SHSPs and the high risk rural roads program are a new part of the
HSIP in 23 U.S.C. 148.
The FHWA also proposes to modify the existing language in this
section to require that each State's HSIP include processes for the
evaluation of the SHSP, HSIP, and highway safety improvement projects.
While evaluation has always been a requirement of the HSIP, FHWA
proposes this change to be consistent with other proposed changes that
strengthen the requirement for evaluation of highway safety plans,
programs, and projects, such as the evaluation requirement of the SHSP.

Section 924.9 Planning

The FHWA proposes to revise much of this section in order to
provide more information to States regarding the planning process of
HSIPs. The FHWA proposes to reorganize this section and add more detail
regarding individual elements of the planning process.
The FHWA proposes the following five main elements that the
planning process of the HSIP shall incorporate:
(1) A process for collecting and maintaining a record of crash,
roadway, traffic, vehicle, case or citation adjudication, and injury
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) of hazardous locations, sections, and elements to
develop highway safety improvement projects; and
(5) A process for establishing priorities for implementing a
schedule of highway safety improvement projects.
While the first element resembles the one in existing part 924,
FHWA proposes to expand it to include collecting and maintaining a
record of crash, roadway, traffic, vehicle, case or citation
adjudication, and injury data on all public roads. The FHWA proposes
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. 408.
The FHWA proposes to add 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
FHWA proposes this language to be consistent with 23 U.S.C. 148 and
408.
The FHWA proposes to expand paragraph (3) [formerly paragraph (2)]
to provide more detailed information regarding the processes involved
in developing a data-driven program. The proposed 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 an HSIP in accordance with 23 U.S.C. 148(c)(2) that
identifies highway safety improvement projects on the basis of crash
experience or crash potential and establishes the relative severity of
those locations, and that analyzes the results achieved by highway
safety improvement projects in setting priorities for future projects.
The FHWA proposes this item to require that the States develop a data-
driven program where projects and priorities are based on crash data,
crash severity, and other relevant safety information. The proposal
also requires that the States use information from their evaluation
process to set priorities for future projects.
(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, establish priorities for implementation and
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 for that State. The
proposed elements in this section implement the statutory requirements
of 23 U.S.C. 148.
(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 proposed elements in
this section also implement the statutory requirements of 23 U.S.C.
148.
(iv) Developing a Railway-Highway Grade Crossing Program. This item
is contained in existing part 924; however, FHWA proposes minor edits
to clarify the content.
The FHWA proposes to expand paragraph (4) [formerly paragraph (3)]
to include road safety audits of hazardous locations as processes that
may be used to develop highway safety improvement projects. The FHWA
proposes this change because road safety audits are a valuable tool
that has been developed and used over the past 10 years in the United
States to aid practitioners in enhancing highway/road safety.
The FHWA proposes to expand paragraph (5) [formerly paragraph (4)]
to indicate that the process for establishing priorities for
implementing highway safety improvement projects shall also include a
schedule of highway safety improvement projects for hazard correction
and hazard prevention. The FHWA also proposes to relocate the last
three sentences of former paragraph (4) to paragraph (3)(iv), because
they relate to Railway-Highway Grade Crossings. The FHWA also proposes
to include additional language to this item to expand the process for
establishing priorities for implementing a schedule of 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, under 23
CFR part 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 proposed additional information
incorporates more key elements into the planning process and is
designed to tie project planning to the SHSP and to reflect the
proactive qualities of section 148. Referencing 23 U.S.C. 134 and 135
would reinforce 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 FHWA also proposes to relocate existing paragraph (b) regarding
Railway-Highway grade crossings to paragraph (a)(3)(iv)(D) in order to
place all Railway-Highway Grade Crossing planning items in one area.
The FHWA proposes to expand paragraph (b) [formerly paragraph (c)]
to include references to 23 U.S.C. 130, 133, 148, and 505. As part of
this change, the FHWA proposes to clarify that funds made available
through 23 U.S.C. 104(f) may be used to fund safety planning in
metropolitan areas.
The FHWA proposes to add a new paragraph (c) to specify that
highway safety improvement projects shall be

[[Page 22095]]

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 proposes this new item
to incorporate the statutory requirements of section 148 and to link
safety to the transportation planning process.

Section 924.11 Implementation

The FHWA proposes to expand this section to provide more detailed
explanations regarding the implementation requirements for HSIPs.
The FHWA proposes an editorial change to paragraph (a) to relocate
the reference to procedures set forth in 23 CFR part 630, subpart A to
be a new paragraph (j). The FHWA proposes to correct the reference to
23 CFR part 630 Subpart A to include its correct title: Preconstruction
Procedures: Project Authorization and Agreements.
The FHWA proposes to delete existing paragraph (b) regarding funds
apportioned under 23 U.S.C. 152, Hazard Elimination Program, which was
repealed by SAFETEA-LU. Funds for those programs are now apportioned
under 23 U.S.C. 104(b)(5).
To incorporate the provisions in 23 U.S.C. 148, the FHWA proposes
to add paragraph (b) that describes that 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 to carry out safety projects under any other section of
Title 23, United States Code, 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. The
proposed changes also establish the approval process with which States
must comply, including the submission of written requests to the FHWA
Division Administrator.
A new paragraph (c) is also proposed which describes funding set
asides from 23 U.S.C. 104(b)(5) for construction and operational
improvements on high risk rural roads, as defined in 23 U.S.C.
148(a)(1). It includes descriptions of how high risk rural roads funds
are to be used.
The FHWA proposes to modify 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 proposes
to include the United States Code reference to 23 U.S.C. 130(f) for
funds that must be made available for the installation of grade
crossing protective devices. In addition, FHWA proposes to include 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 FHWA proposes to revise paragraph (e) [formerly paragraph (d)]
to delete outdated references to section 104(b)(1) of the Federal-Aid
Highway Act of 1978 and section 103(a) of the Highway Improvement Act
of 1982. The FHWA also proposes to delete existing paragraph (e), which
references 23 U.S.C. 219, Safer Off-System Roads, which was repealed by
Public Law 100-17, title I, Sec. 133(e)(1), Apr. 2, 1987, 101 Stat.
173.
The FHWA proposes to delete existing paragraph (f), which
references 23 CFR part 650, subpart D (Special Bridge Replacement
Program) as a source of funding for major safety defects on bridges.
The FHWA believes that because this item describes funding eligibility
for a very specific activity in the context of the Special Bridge
Replacement Program, it should only be described and addressed within
subpart D of part 650, rather than as part of the HSIP.
The FHWA proposes to add two new paragraphs regarding funding.
Proposed paragraph (g) describes that all safety projects funded under
23 U.S.C. 104(b)(5), including safety projects under any other section
of title 23, shall be accounted for in the statewide transportation
improvement program and reported on annually, in accordance with
section 924.15. Proposed 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 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 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.

Section 924.13 Evaluation

The FHWA proposes to revise 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 FHWA proposes to expand paragraph (a) regarding the evaluation
process to require the State to evaluate the overall HSIP, the
individual highway safety improvement projects, and the SHSP. Within
paragraph (a), FHWA proposes to restructure the existing paragraphs
(a)(1) through (a)(3) into two paragraphs. Proposed paragraph (a)(1)
would require that the evaluation include a process to analyze and
assess the results achieved by the highway safety improvement projects,
including determining the effect that the projects have had in reducing
the number of crashes, fatalities and serious injuries, or potential
crashes, including: (i) A record of the number of crashes, serious
injuries, and fatalities before and after the implementation of a
project; (ii) A comparison of the number of crashes, serious injuries,
and fatalities after the implementation of a project with the number
expected if the improvement had not been made; and (iii) For projects
developed to address crash potential, the safety benefits derived from
the various means and methods used to mitigate or eliminate hazards.
The FHWA also proposes a new paragraph (a)(2) to require that the
States have a process to evaluate the overall SHSP on a regular basis
as determined by the State and in consultation with 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 proposes this evaluation
of the SHSP because it believes that 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 FHWA proposes to expand existing paragraph (b) to require that
the information resulting from the processes developed in proposed
section 924.13(a)(1) be used for setting priorities for highway safety
improvement projects, for assessing the overall

[[Page 22096]]

effectiveness of the HSIP, and for the reporting required by section
924.15. The FHWA proposes this additional language to provide synergy
between the evaluation process and the setting of priorities for
projects, the assessment of the effectiveness of the program, and the
requirement for reporting the results. It also emphasizes the iterative
nature of the planning, implementation, and evaluation process.
The FHWA proposes to revise the funding sources for the evaluation
process in paragraph (c) to reflect the current applicable funding
sections within Title 23, United States Code, which are 104(b)(1), (3),
and (5), 105, 402, 505, and for metropolitan planning areas, 23 U.S.C.
104(f).

Section 924.15 Reporting

The FHWA proposes to expand paragraph (a) of this section in order
to specify the requirements for States to submit annual reports. These
reports would: (1) Describe progress in implementing the HSIP and the
effectiveness of the program including its projects; (2) describe
progress in implementing railway-highway grade crossing improvements
and assess their effectiveness; and (3) identify not less than 5
percent of a State's highway locations exhibiting the most severe
safety needs (termed the transparency report) that (i) emphasizes
fatality and serious injury data; (ii) uses the most recent 3 to 5
years of crash data; (iii) identifies the data years used and describes
the extent of coverage of all public roads included in the data
analysis; (iv) identifies the methodology used to determine how the
locations were selected; and (v) is provided in a format compliant with
the requirements of 29 U.S.C. 794(d), section 508 of the Rehabilitation
Act. The FHWA proposes to require 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
those with disabilities.
The FHWA proposes to revise the funding sources for the reporting
process in paragraph (b) to reflect the current applicable funding
sections within Title 23, United States Code, which are 104(b)(1), (3),
and (5), 105, 402, 505, and for metropolitan planning areas, 23 U.S.C.
104(f).

Rulemaking Analysis and Notices

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

The FHWA has determined that this proposed action would 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 proposed 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 would 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), FHWA has evaluated the effects of these changes on
small entities and has determined that this action would not have a
significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

This proposed rule would 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 proposed revisions would require
expenditures by the State and local governments for the planning,
implementation, evaluation, and reporting of the HSIPs and Federal-aid
projects, these activities would not be Unfunded Mandates because these
activities are reimbursable. This proposed action would 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
FHWA has determined that this proposed action would 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 proposed action under Executive Order
13175, dated November 6, 2000, and believes that it would 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 proposed 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 proposed
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 proposed 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.

[[Page 22097]]

Executive Order 13045 (Protection of Children)

The FHWA has analyzed this proposed action under Executive Order
13045, Protection of Children from Environmental Health Risks and
Safety Risks. The FHWA certifies that this proposed 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 proposed 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 proposed 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: April 15, 2008.
James D. Ray,
Acting Federal Highway Administrator.
In consideration of the foregoing, the FHWA proposes to revise 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, in addition to those items listed in 23 U.S.C.
101(a), 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\1\
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.
---------------------------------------------------------------------------

\1\ The MUTCD is approved by the FHWA and recognized as the
national standard for traffic control on all public roads. It is
incorporated by reference into the Code of Federal Regulations at 23
CFR part 655. It is available on the FHWA's Web site at http://mutcd.fhwa.dot.gov and is available for inspection and copying at
the FHWA Washington, DC Headquarters and all FHWA Division Offices
as prescribed at 49 CFR part 7.
---------------------------------------------------------------------------

Highway safety improvement program means the program carried out
under 23 U.S.C. 130 and 148.
Highway safety improvement project means a project described in the
State strategic highway safety plan (SHSP) that corrects or improves a
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 another warning device, if the
rumble strips or other warning devices do not adversely affect the
safety or mobility of bicyclists, pedestrians or the disabled.
(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 safety of
the disabled.
(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.
(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 crash 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.
(20) Construction, installation, and operational improvements on
high risk rural roads.
(21) Conducting road safety audits.
Integrated interoperable emergency communication equipment means
equipment that supports an interoperable emergency communications
system.

[[Page 22098]]

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 mean capital improvements 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 audit
team.
Safety data includes, but is not limited to, crash, roadway,
traffic, vehicle, case or citation adjudication, and injury 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 agencies, organizations, or parties
described in 23 U.S.C. 148(a)(6)(A), and 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 required annually under 23
U.S.C. 148(c)(1)(D) and in accordance with Sec. 924.15 of this part
that describes not less than 5 percent of a State's highway locations
exhibiting the most severe safety needs.

Sec. 924.5 Policy.

(a) Each State shall develop, implement, and evaluate on a
continuing basis a HSIP that has the overall objective of significantly
decreasing the potential for crashes and reducing 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 by addressing locations and treatments with the highest
potential for future crash reduction. 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 of Title 23, United States Code, and funded with 23
U.S.C. 148 funds, are only eligible 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.

Sec. 924.7 Program structure.

(a) The HSIP in each State 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) Each State's HSIP shall include processes for the planning,
implementation, and evaluation of the SHSP, HSIP, and highway safety
improvement projects. These processes shall be developed by the States
and approved by 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 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 planning process of the HSIP shall incorporate:
(1) A process for collecting and maintaining a record of crash,
roadway, traffic, vehicle, case or citation adjudication, and injury
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 or crash potential 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 highway safety improvement projects and uses this
information 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;

[[Page 22099]]

(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 low-cost 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 that was 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, make
project selections, 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 legislative
requirement that all public crossings be provided with standard signing
and markings.
(4) A process for conducting engineering studies (such as roadway
safety audits) of hazardous locations, sections, and elements to
develop highway safety improvement projects.
(5) A process for establishing priorities for implementing a
schedule of highway safety improvement projects considering:
(i) The potential reduction in the number of fatalities and serious
injuries;
(ii) The cost of the projects and the resources available;
(iii) The strategies 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
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 implementation of the HSIP in each State shall include a
process for scheduling and implementing highway safety improvement
projects in accordance with the priorities developed in accordance with
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;
(2) A State must submit a written request that describes how the
certification was made, the Title 23, United States Code activities
that will be funded, how the activities are consistent with the SHSP,
and the dollar amount the State estimates will be used; and
(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).
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

[[Page 22100]]

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 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 scheduling and 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 evaluation process of the HSIP in each State shall include
the evaluation of the overall HSIP, individual highway safety
improvement projects, and the SHSP. It shall:
(1) Include a process to analyze and assess the results achieved by
the highway safety improvement projects, including determining the
effect that the projects have had in reducing the number and severity
of crashes, fatalities and serious injuries, or potential crashes, and
in reaching the performance goals identified in section
924.9(a)(3)(ii)(G), including:
(i) A record of the number of crashes, fatalities and serious
injuries before and after the implementation of a project;
(ii) A comparison of the number of crashes, fatalities and serious
injuries after the implementation of a project to the number expected
if the improvement had not been made; and
(iii) For projects developed to address crash potential, the safety
benefits derived from the various means and methods used to mitigate or
eliminate hazards.
(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 as
outlined in Sec. 924.9(a) in accordance with paragraph (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 July 1 through June 30, each
State shall submit to the FHWA 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 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 type of
projects initiated. The general listing of the projects initiated shall
be structured to identify how the projects relate to the State SHSP or
the State's safety goals and objectives and shall provide a clear
description of project selection;
(ii) Assesses the effectiveness of the improvements. This section
shall provide a demonstration of the overall effectiveness of the HSIP
and shall include figures showing the general highway safety trends in
the State by number and by rate;
(iii) Describes the extent to which improvements contributed to
specific performance goals and provides evaluation data for specific
safety improvement projects that have been implemented. The evaluation
data shall include basic information on the roadway such as where the
project occurred, the type of improvement, the cost of improvement, and
``before'' and ``after'' crash results, and shall demonstrate whether
the project achieved its purpose using benefit-cost or other
methodology developed by the State; and
(iv) 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) Emphasizes fatality and serious injury data;
(ii) Uses the most recent three to five years of crash data;
(iii) Identifies the data years used and describes the extent of
coverage of all public roads included in the data analysis;
(iv) Identifies the methodology used to determine how the locations
were selected; and
(v) 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. E8-8742 Filed 4-23-08; 8:45 am]
BILLING CODE 4910-22-P