[Federal Register Volume 73, Number 248 (Wednesday, December 24, 2008)]
[Rules and Regulations]
[Pages 78959-78969]
From the Federal Register Online via the Government Printing 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