Federal Register Vol. 81, No.50,

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2015-04-03, Amendment 39-18105 (80 FR 9380, February 23, 2015), (“AD 2015-04-03”). AD 2015-04-03 applied to the specified products. The NPRM published in the Federal Register on November 10, 2015 (80 FR 69625). The NPRM proposed to require removal of either the affected sealing sleeve only or both the affected sealing sleeve and the oil feed tube.

We gave the public the opportunity to participate in developing this AD. We considered the comment received. The commenter supports the NPRM (80 FR 69625, November 10, 2015).

We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting this AD as proposed.

RR has issued RR Alert Non-Modification Service Bulletin (NMSB) No. RB.211-72-AJ035, Revision 2, dated August 10, 2015 and RR Service Bulletin (SB) No. RB.211-72-H754, including the Supplement, Revision 1, dated July 29, 2015. The Alert NMSB No. RB.211-72-AJ035, Revision 2, dated August 10, 2015, provides guidance on identification and replacement of the sealing sleeve, part number (P/N) FW15003. The SB No. RB.211-72-H754, including the Supplement, Revision 1, dated July 29, 2015, provides information on the replacement of the sealing sleeve, P/N FW15003, and oil feed tube, P/N FW14193, with a sealing sleeve, P/N KH28323 and oil feed tube, P/N KH28324. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

We estimate that this AD affects 58 engines installed on airplanes of U.S. registry. We also estimate that it will take about 1.2 hours per engine to comply with this AD. The average labor rate is $85 per hour. Required parts cost about $5,850 per engine. Based on these figures, we estimate the cost of this AD on U.S. operators to be $345,216.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain EA GP7270 turbofan engines. The NPRM published in the Federal Register on October 23, 2015 (80 FR 64373). The NPRM was prompted by reports of the installation of non-conforming honeycomb cartridges in the HPC adjacent to the HPC rotor stage 2 to 5 spool and stage 7 to 9 spool. The NPRM proposed to require removal and replacement of the affected HPC rotor stage 2 to 5 and stage 7 to 9 spools and adjacent honeycomb cartridges. We are issuing this AD to correct the unsafe condition on these products.

We reviewed EA Service Bulletin (SB) EAGP7-72-327, dated July 21, 2015; and SB EAGP7-72-328, dated July 21, 2015. The SBs describe procedures for removal and replacement of the affected HPC rotor stage 2 to 5 spools and HPC rotor stage 7 to 9 spools and adjacent honeycomb cartridges. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.

A commenter supports the NPRM (80 FR 64373, October 23, 2015).

EA requested that we expand the applicability to include GP7272 and GP7277 turbofan engines models. EA stated that the AD applies to GP7272 and GP7277 turbofan engines ratings in addition to GP7270.

We disagree. No GP7272 or GP7277 turbofan engines have been delivered. New engines would be delivered in the corrected configuration and would not be impacted by this AD. We did not change this AD.

EA requested that we change the unsafe condition statement to “We are issuing this AD to prevent a hazardous engine condition.” because no engine failures have occurred in the field due to non-conforming honeycomb cartridges.

We disagree. The unsafe condition describes the condition we are trying to prevent and is the justification for this AD. It does not describe what has occurred in the past. We did not change this AD.

EA requested that we include “honeycomb cartridges” in the Summary and Relevant Service Information paragraphs to indicate that the honeycomb cartridges require replacement.

We agree because the proposed change more completely describes the requirements of this AD. We changed the Summary and Relevant Service Information paragraphs of this AD.

EA requested that we revise the Relevant Service Information, Applicability, and Compliance paragraphs of this AD to allow future revisions of the applicable Service Bulletins (SBs).

We disagree. We are only authorized to mandate use of SBs that we have reviewed and which are published. Since future revisions of SBs are not yet published, we are not authorized to mandate their use. We did not change this AD.

EA requested that we revise Compliance paragraph (e)(1)(ii) of this AD to “Remove and replace the honeycomb cartridges on the HPC stage 5 vanes with a part eligible for installation.”

EA also requested that we revise Compliance paragraph (e)(2)(ii) to “Remove and replace the honeycomb cartridges on the HPC stage 6, stage 7, and stage 8 vanes with a part eligible for installation.”

We agree. We changed “remove” to “remove from service” and “seal” to “cartridges” and added “. . . with a part eligible for installation” in compliance paragraphs (e)(1)(ii) and (e)(2)(ii) of this AD.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously:

• Αre consistent with the intent that was proposed in the NPRM (80 FR 64373) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 64373).

We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

We estimate that this AD affects zero engines installed on airplanes of U.S. registry. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $0.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to B-N Group Ltd. Models BN-2, BN-2A, BN-2A-2, BN-2A-3, BN-2A-6, BN-2A-8, BN-2A-9, BN-2A-20, BN-2A-21, BN-2A-26, BN-2A-27, BN-2B-20, BN-2B-21, BN-2B-26, BN-2B-27, BN2A MK. III, BN2A MK. III-2, BN2A MK. III-3 BN2A, BN2B, and BN2A MKIII (all models on TCDS A17EU and A29EU) airplanes. That NPRM was published in the Federal Register on December 24, 2015 (80 FR 80291), and proposed to supersede AD 2007-06-06, Amendment 39-14987 (72 FR 12557; March 16, 2007).

The NPRM proposed to correct an unsafe condition for the specified products and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country. The MCAI states that:

The MCAI can be found in the AD docket on the Internet at: http://www.regulations.gov/#!documentDetail;D=FAA-2015-7777-0002.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the relevant data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (80 FR 80291, December 24, 2015) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 80291, December 24, 2015).

We reviewed Britten-Norman Service Bulletin Number SB 310, Issue 4, dated September 25, 2015. The service information describes procedures for inspections, and if necessary, replacement of the pitot/static pressure head. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this final rule.

We estimate that this AD will affect 93 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour.

Based on these figures, we estimate the cost of this AD on U.S. operators to be $7,905, or $85 per product.

In addition, we estimate that any necessary follow-on actions would take about 2 work-hours and require parts costing $10,000, for a cost of $10,170 per product. We have no way of determining the number of products that may need these actions.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-7777; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

On April 3, 2015, the Aircraft Owners and Pilots Association (AOPA) Senior Vice President for Government Affairs & Advocacy wrote to the FAA's Director of the Office of Airport Compliance and Management Analysis proposing revisions to FAA's current policy regarding compensation for flight instructors and persons maintaining aircraft within the context of flying club operations. AOPA stated in its letter that it sought “to help current flying clubs and airport sponsors comply with the FAA guidance outlined in 5190.6B, and to provide future flying clubs the opportunity to strengthen and unify general aviation pilots.” AOPA said that its goal is “to provide guidance that is attainable and ensures educated compliance from all airport users,” and asked for “updated guidance regarding compensation for flight instructors and maintainers” because “flight instructors and aviation mechanics are valuable assets to the aviation industry, and should be granted the privilege of fair compensation for their efforts on a local level.”

AOPA proposes clubs be permitted to compensate member flight instructors and member mechanics for services rendered to the club or club members. Such compensation, AOPA suggests, should be monetary or in the form of credit against payment of dues or flight time.

The FAA requested comments on whether AOPA's recommendations are consistent with the FAA's general policies regarding commercial aeronautical services and on-airport flying clubs, and if so, whether the stated agency policy on flying clubs should be revised to amend its definition of flying clubs. In particular, the FAA sought comments from commercial service providers that engage in flight training and aircraft rental, from associations representing such service providers, and other interested parties. Public comments were received and considered, and changes to the existing policy were adopted.

FAA Order 5190.6B, FAA Airport Compliance Manual (Order), paragraph 10(6)(a), published on September 30, 2009, defines a flying club as: “a nonprofit or not-for-profit entity (e.g., corporation, association, or partnership) organized for the express purpose of providing its members with aircraft for their personal use and enjoyment only.” The Order states that,

The Order also notes that “flying clubs may not offer or conduct . . . aircraft rental operations. They may conduct aircraft flight instruction for regular members only, and only members of the flying club may operate the aircraft.” FAA Order 5190.6B at para. 10.6(c)(1). The Order also states that “no flying club shall permit its aircraft to be used for flight instruction for any person, including members of the club owning the aircraft, when such person pays or becomes obligated to pay for such instruction. FAA Order 5190.6B at para. 10.6(c)(3). An exception applies when the instruction is given by a lessee based on the airport who provides flight training and the person receiving the training is a member of the flying club. Id. Flight instructors who are also club members may not receive payment for instruction except that they may be compensated by credit against payment of dues or flight time” and that “any qualified mechanic who is a registered member and part owner of the aircraft owned and operated by a flying club may perform maintenance work on aircraft owned by the club. The flying club may not become obligated to pay for such maintenance work except that such mechanics may be compensated by credit against payment of dues or flight time.” Flying clubs are defined in such a way as to differentiate from for-profit aeronautical businesses offering aeronautical services to general public, e.g., FBOs, flight schools and aircraft rental providers.

The owner of any federally-obligated airport (airport sponsor) is required by the sponsor grant assurances to operate that airport for the use and benefit of the public and to make that airport available to all types, kinds, and classes of aeronautical activity on fair and reasonable terms, without unjust discrimination.

AOPA states that its recommendations are designed to promote flying clubs by allowing flight instructors and mechanics who are club members to receive monetary compensation for services conducted for other club members or club aircraft:

The FAA received comments from 44 airport users including flight instructors, pilots and flying club members. Thirty-seven of the airport users were flying club members who submitted a letter identifying themselves as “Flying Club Participants at Air Venture 2015”. The remaining seven airport users submitted individual comments. Two industry groups submitted comments: Flight School Association of North America (FSANA) and National Air Transportation Association of North America (NATA). FSANA is a membership-based association representing flight schools and firms involved in flight training. NATA is an organization representing the interest of aviation businesses such as aircraft fueling, maintenance, parts sales, storage, rental, airline servicing, flight training, Part 135 on-demand air charter, and fractional aircraft program management.

Forty-three airport users offered support of both AOPA Policy Proposals: An individual commenter believes that the policy change would provide an incentive for pilots who belong to flying clubs to remain current and continue their education in a convenient, cost-effective, and familiar environment. Another commenter indicated that small airports rely on flying clubs because there is not enough business activity to support a flight school. This commenter is an inactive pilot because there is no aircraft rental or flight training available at the airport. However, the club at a local airport has several certificated flight instructors (CFI). Many CFIs have full time jobs and are not interested in donating their evenings and weekends without compensation. The president of a nonprofit flying club at Skyhaven Airport in Rochester, New Hampshire, indicates that the airport does not have a flight school. None of the club members can receive proficiency checkouts or additional training in club aircraft without violating the airport's policy. There are several CFIs in the community that would join the club if they could be compensated.

Supporters of the AOPA proposal believe the proposed policy change would (1) provide enhanced opportunities for students to fulfill their educational needs in surroundings they find appealing and accessible; (2) provide incentive for pilots who are members of flying clubs to remain current; and (3) create additional opportunities and incentives for certificated flight instructors to actively participate in flying clubs.

A commenter is opposed to a change in policy. He believes it will weaken “for profit” flight schools which have suffered financially for the past eight years.

FSANA believes that flying clubs can be a positive asset to the community. FSANA recognizes that flying clubs that are not for profit have a business advantage over for profit flight schools. They also believe a flying club should not be classified as a commercial operator. FSANA supports compensation for certificated flight instructors and mechanics as long as flying clubs serve the needs of their members and not promote their services to the general public and do not compete with commercial operators. FSANA encouraged the FAA to create awareness and enforce transparency for the flying club community and airport sponsors to ensure that flying clubs do not compete with commercial operators and promote themselves to the general public.

NATA recognizes AOPA's initiative is intended to increase public interest in flying by strengthening flying clubs. Of concern to NATA are those entities that classify themselves as flying clubs but are commercial aviation businesses thus avoiding compliance with an airport sponsor's minimum standards. NATA asserts that flying clubs that offer their services to the general public should not be able to enjoy the protection of a non-profit flying club to avoid complying with an airport's minimum standards. NATA does not object to either of AOPA's proposals but recommends that CFIs and mechanics receive either (1) monetary compensation or (2) discounted/waived regular club member dues or flying time, but not both. NATA believes that without such a restriction, outside instructors or mechanics could receive waived dues and monetary compensation for performing work without ever having invested in the club as would a bona-fide member. NATA suggests that the policy change with these limitations will be beneficial and will create a more level playing field.

FSANA and NATA suggest that any clarification of the policy should emphasize that (1) flying clubs should at no time hold themselves out as fixed based operators, flight schools, or as businesses at which people can learn to fly; and (2) CFIs and mechanics should be permitted to receive monetary compensation as long as flying clubs of which they are members meet adequate criteria, which may include the airport sponsor's authorization and/or sponsor-imposed conditions. FSANA and NATA also recommended that flying clubs must not indicate in any form of marketing and/or communications that they are a flight school, and flying clubs must not indicate in any form of marketing and/or communications that they are a business where people can learn to fly.

FAA's primary concern is that flying clubs operating at federally-obligated airports must conform to the FAA definition found in FAA Order 5190.6B, paragraph 10.6. As stated, the Order defines “a flying club as a nonprofit or not-for-profit entity (e.g., corporation, association, or partnership) organized for the express purpose of providing its members with aircraft for their personal use and enjoyment only.” In addition, the ownership of the club aircraft must be vested in the name of the flying club or owned by all its members, the property rights of the members of the club shall be equal and no part of the net earnings of the club will inure to the benefit of any individual in any form, including salaries, bonuses, etc. These flying clubs can be distinguished from commercial service providers that use the term “flying club” to describe their operation in order to avoid having to comply with the airport's minimum standards for commercial service providers Those “flying clubs” do not conform to the FAA definition and put other commercial aeronautical service providers at an economic disadvantage. Generally, they hold themselves out to the public as alternatives to traditional flight schools and aircraft rental providers, and charge only nominal annual “club fees.”

FAA policy will emphasize three points: (1) Flying clubs should at no time hold themselves out as fixed based operators, flight schools, or as businesses offering services to the general public; and (2) CFIs and mechanics should be permitted to receive either monetary compensation or discounted/waived regular club member dues but not both; (3) flying clubs must not indicate, in any form of marketing and/or communications, that they are a flight school and flying clubs must not indicate in any form of marketing and/or communications that they are a business where people can learn to fly. FAA agrees with NATA that flight instructors and mechanics should be bona-fide club members paying dues as a condition to receiving compensation for services or a bona-fide member receiving a discount or waiver of dues with no compensation. To offer both compensation and discounted/waived dues may result in abuse and the use of outside instructors and mechanics who have no investment of time or commitment to the club. Additionally, FAA agrees with NATA and FSANA that flying clubs must distinguish themselves from other aeronautical service providers.

FAA expects that sponsors of federally-obligated airports will take appropriate action to ensure that commercial operators and flying clubs are properly classified, and the sponsor's actions are consistent with its grant assurances, specifically Grant Assurance 22, Economic Nondiscrimination.

FAA's policy regarding flying clubs is amended by revising FAA Order 5190.6B paragraphs 10.6(c)(3) and (4) and by adding paragraphs 10.6 (c)(8) and (9):

b. General The ownership of the club aircraft must be vested in the name of the flying club or owned by all its members. The property rights of the members of the club shall be equal; no part of the net earnings of the club will inure to the benefit of any individual in any form, including salaries, bonuses, etc. The flying club may not derive greater revenue from the use of its aircraft than the amount needed for the operation, maintenance and replacement of its aircraft.

(c)(3). A flying club may permit its aircraft to be used for flight instruction in a club-owned aircraft as long as both the instructor providing instruction and person receiving instruction are members of the club owning the aircraft, or when the instruction is given by a lessee based on the airport who provides flight training and the person receiving the training is a member of the flying club. In either circumstance, a flight instructor may receive monetary compensation for instruction or may be compensated by credit against payment of dues or flight time; however that individual may not receive both compensation and waived or discounted dues or flight time concurrently. The airport sponsor may set limits on the amount of instruction that may be performed for compensation.

(c)(4). A qualified mechanic who is a registered member and part owner of the aircraft owned and operated by a flying club may perform maintenance work on aircraft owned by the club. The mechanic may receive monetary compensation for such maintenance work or may be compensated by credit against payment of dues or flight time; however that individual may not receive both compensation and waived or discounted dues or flight time concurrently. The airport sponsor may set limits on the amount of maintenance that may be performed for compensation.

(c)(8). Flying Clubs may not hold themselves out to the public as fixed based operators, a specialized aviation service operation, maintenance facility or a flight school and are prohibited from advertisements as such or be required to comply with the appropriate airport minimum standards.

(c)(9). Flying Clubs may not indicate in any form of marketing and/or communications that they are a flight school, and Flying Clubs must not indicate in any form of marketing and/or communications that they are a business where people can learn to fly.

Background

Pursuant to the provisions of the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention, implemented by the Convention on Cultural Property Implementation Act (Pub. L. 97-446, 19 U.S.C. 2601 et seq.), the United States entered into a bilateral agreement with the Republic of Colombia (“Colombia”) on March 15, 2006, concerning the imposition of import restrictions on certain archeological and ethnological materials from Colombia (the “Agreement”). On March 17, 2006, CBP published CBP Dec. 06-09 in the Federal Register (71 FR 13757), which amended 19 CFR 12.104g(a) to reflect the imposition of these restrictions and included a list designating the types of articles covered by the restrictions.

Import restrictions listed in 19 CFR 12.104g(a) are effective for no more than five years beginning on the date on which the agreement enters into force with respect to the United States. This period may be extended for additional periods of not more than five years if it is determined that the factors which justified the initial agreement still pertain and no cause for suspension of the agreement exists.

Since the initial document was published on March 17, 2006, the import restrictions were extended on March 15, 2011. CBP published CBP Dec. 11-06 in the Federal Register (76 FR 13879) which amended 19 CFR 12.104g(a) to reflect the extension for an additional period of five years.

On July 23, 2015, the Department of State received a request by the Government of Colombia to extend the Agreement. Subsequently, the Department of State proposed to extend the Agreement. After considering the views and recommendations of the Cultural Property Advisory Committee, the Assistant Secretary for Educational and Cultural Affairs, United States Department of State, determined that the cultural heritage of Colombia continues to be in jeopardy from pillage of archaeological and ethnological materials and made the necessary determinations to extend the import restrictions for an additional five years. Diplomatic notes have been exchanged, reflecting the extension of those restrictions for an additional five-year period. Accordingly, CBP is amending 19 CFR 12.104g(a) to reflect this extension of the import restrictions.

The Designated List of archaeological and ethnological materials from Colombia covered by these import restrictions is set forth in CBP Dec. 06-09. The Designated List may also be found at the following Internet Web site address: http://eca.state.gov/cultural-heritage-center/cultural-property-protection/bilateral-agreements/colombia.

The restrictions on the importation of these archaeological and ethnological materials from Colombia are to continue in effect for an additional five years. Importation of such materials continues to be restricted unless the conditions set forth in 19 U.S.C. 2606 and 19 CFR 12.104c are met.

This amendment involves a foreign affairs function of the United States and is, therefore, being made without notice or public procedure (5 U.S.C. 553(a)(1)). In addition, CBP has determined that such notice or public procedure would be impracticable and contrary to the public interest because the action being taken is essential to avoid interruption of the application of the existing import restrictions (5 U.S.C. 553(b)(B)). For the same reasons, a delayed effective date is not required under 5 U.S.C. 553(d)(3).

Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply.

It has been determined that this rule is not a significant regulatory action under Executive Order 12866.

This regulation is being issued in accordance with 19 CFR 0.1(a)(1).

For the reasons set forth above, part 12 of title 19 of the Code of Federal Regulations (19 CFR part 12), is amended as set forth below:

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.ofr.gov and the Government Printing Office's Web page at: http://www.thefederalregister.org.

The Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L. 112-141) and the Fixing America's Surface Transportation Act (FAST Act) (Pub. L. 114-94) continue the Highway Safety Improvement Program (HSIP) under section 148, title 23 of the United States Code (U.S.C.) as a core Federal-aid program with the purpose to achieve a significant reduction in fatalities and serious injuries on all public roads. The MAP-21 amended the HSIP by requiring the DOT to establish several new requirements and removes several provisions that were introduced under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). A revision to 23 CFR part 924 is necessary to align with the MAP-21 and FAST provisions and clarify existing program requirements. A key component of this rule is the requirement for States to collect and use a set of roadway data elements for all public roadways, including local roads. Data elements include elements to classify and delineate roadway segments (e.g., beginning and end point descriptors), elements to identify roadway physical characteristics (e.g., median type and ramp length), and elements to identify traffic volume. The purpose of this requirement, in addition to satisfying a statutory requirement, is to improve States' ability to estimate expected number of crashes at roadway locations, with the ultimate goal to improve States' allocation of safety resources.

This final rule retains most of the major NPRM provisions without change, with the exception of the Model Inventory of Roadway Elements (MIRE) fundamental data elements (FDE). The MAP-21 requires DOT to establish a subset of model roadway elements (a.k.a. MIRE) FDE (23 U.S.C. 148(e)(2)(A)). Based on the review and analysis of comments received in response to the NPRM, FHWA revised the required MIRE FDE in this final rule to clarify where the data elements shall be collected (i.e. based on functional classification, rather than volume). The MIRE FDE are the minimum roadway data elements an agency would need to conduct system-wide network screening and can be divided into the following categories: (1) MIRE FDE that define roadway segments, intersections and interchanges/ramps, (2) MIRE FDE that delineate basic information needed to characterize the roadway type and exposure, and (3) MIRE FDE that identify governmental ownership and functional classification consistent with the HSIP reporting requirements. The FHWA believes that the roadway data elements are the fundamental set of data elements that an agency would need in order to conduct enhanced safety analyses to improve safety investment decisionmaking through the HSIP. The MIRE FDE also has the potential to support other safety and infrastructure programs in addition to the HSIP.

The MAP-21 also requires the DOT to establish the update cycle for Strategic Highway Safety Plans (SHSP) (23 U.S.C. 148(d)(1)(A)) and the content and schedule for the HSIP report (23 U.S.C. 148(h)(2)). An SHSP is a statewide-coordinated safety plan that identifies a State's key safety needs and guides investment decisions toward strategies and countermeasures with the most potential to save lives and prevent injuries. This final rule establishes an SHSP update cycle of at least every 5 years, consistent with the NPRM and current practice in most States. For example, 45 States updated their SHSP or had an SHSP update underway within a 5-year timeframe. A number of those States are on the third version of their SHSP. Of those States that have not delivered an SHSP update, they have an update planned or well underway. The final rule also maintains the requirement that States submit their HSIP reports on an annual basis, by August 31 each year. In addition to existing reporting requirements, DOT requires that State DOTs document their safety performance targets required under 23 U.S.C. 150(d) and the basis on which those targets were established in their annual HSIP report, and describe progress to achieve those safety performance targets in future HSIP reports. The DOT also requires States to use the HSIP online reporting tool to submit their annual HSIP reports, consistent with the NPRM and the Office of the Inspector General's recommendations in the 2013 HSIP Audit.1 Currently, a majority of States use the HSIP online reporting tool to submit their annual HSIP reports. All HSIP reports are publicly available on the FHWA Web site. 2

While the MAP-21 allowed HSIP funds to be eligible for any type of highway safety improvement project (i.e., infrastructure or non-infrastructure); the FAST Act limits this flexibility. In response to the FAST Act provisions and comments received on the NPRM, FHWA removes the provision that required FHWA to assess the extent to which other eligible funding programs are programmed for non-infrastructure projects prior to using HSIP funds for these purposes in this final rule. The DOT also adopts language throughout the final rule to be consistent with the performance management requirements under 23 U.S.C. 150.

Lastly, as described in the NPRM, this final rule removes all existing references to the HRRR Program, 10 percent flexibility provisions, and transparency reports since MAP-21 eliminated these provisions.

Of the three requirements mandated by MAP-21 and addressed in this rule (MIRE FDE, SHSP update cycle, and HSIP Report Content and Schedule), FHWA believes that only the requirement regarding the MIRE FDE would result in additional costs. The SAFETEA-LU and the existing regulation already require States to update their SHSP on a regular basis; the final rule establishes a cycle of at least every 5 years for States to update their SHSP. The final rule does not change the existing schedule for the HSIP report. The MAP-21 results in only minimal proposed changes to the HSIP report content related to reporting safety performance targets required under 23 U.S.C. 150(d); however, additional costs as a result of this new content are negligible and the removal of the transparency report requirements reduces existing reporting costs. The costs to establish the safety performance targets required under 23 U.S.C. 150(d) are considered under the concurrent rulemaking for safety performances measures (Docket number FHWA-2013-020). There were no comments to the docket indicating that any of the changes listed above, other than those relating to MIRE FDE, would result in increased costs to the States. Therefore, FHWA bases its cost-benefit analysis on the MIRE FDE component only and uses the “MIRE Fundamental Data Elements Cost-Benefit Estimation” Report 3 for this purpose.

Table 1 displays the estimated total net present value cost of the requirements for States to collect, maintain, and use the proposed MIRE FDE for all public roadways.

Total costs are estimated to be $659.1 million undiscounted, $508.0 million discounted at 3 percent, and $378.7 million discounted at 7 percent. Although not a specific requirement of this final rule, the cost estimate also includes an estimate of the cost for States to extend their statewide linear referencing system (LRS) to all public roads, since an all-public-roads LRS is a prerequisite to realizing the full benefits from collecting and using the MIRE FDE. This cost is estimated to be $32,897,622 nationally (discounted at 7 percent). The cost estimates reflect the additional costs that a State would incur based on what is not being collected through the Highway Performance Monitoring System (HPMS) or not already being collected through other efforts. In order for the rule to have net safety benefits, States would need to analyze the collected data, use it to identify locations with road safety improvement potential, shift project funding to those locations, and those projects would need to have more safety benefits than the projects invested in using current methods which do not incorporate the proposed MIRE FDE. Additional costs for data quality control, local agency coordination, and data analysis are also included in the MIRE FDE Cost-Benefit Estimation Report.

The cost for developing a statewide LRS would equate to on average $645,051 for each State and the District of Columbia. The cost for data collection for an average State is estimated to be $1,546,169 for the initial data collection and $85,398 for management and administration costs,4 $566,820 for maintenance costs 5 and $4,582,879 for miscellaneous costs 6 over the analysis period of 2015-2035 (2014 U.S. dollars).7 These estimates are net present value average costs on a per average State basis discounted at 7 percent. As such, across the 50 States and the District of Columbia, it is possible that the aggregate cost for the initial data collection would be approximately $79 million over 10 years and the total maintenance, management, and administration and miscellaneous costs would approach $267 million over the 20 year analysis period.8

The MIRE FDE are beneficial because collecting this roadway and traffic data and integrating those data into the safety analysis process would improve an agency's ability to locate problem areas and apply appropriate countermeasures, hence improving safety. The FHWA did not estimate the benefits of this rule. Instead, FHWA has conducted a breakeven analysis. There were no comments to the docket indicating that a different type of analysis should be performed, except that the cost-benefit analysis should also consider a benefit/cost ratio of 10:1 since this is the average benefit/cost ratio for a typical highway safety improvement project. Table 2 shows the reduction in fatalities and injuries due to improvements in safety investment decisionmaking with the use of the MIRE FDE that would be needed for the costs of the data collection to equal the benefits and for the benefits to exceed the cost 10 times.

Using the 2014 comprehensive cost of a fatality of $9,300,000 and $109,800 for an average injury,9 results in an estimated reduction of one fatality and 98 injuries per average State over the 2015-2035 analysis period would be needed to result in a benefit-cost ratio greater than 1:1.10 To achieve a benefit/cost ratio of 10:1, each State would need to reduce fatalities by 15 and injuries by 984 over the same analysis period.11 The FHWA believes this is possible because the MIRE FDE, in combination with crash data, will support more cost-effective safety investment decisions and ultimately yield greater reductions in fatalities and serious injuries per dollar invested. Further, the experiences to date in States that are already collecting and using roadway data comparable to the MIRE FDE suggests there is a very high likelihood that the benefits of collecting and using the proposed MIRE FDE will outweigh the costs.

On March 28, 2014, at 79 FR 17464, the FHWA published a NPRM proposing to revise the regulations in 23 CFR part 924 Highway Safety Improvement Program. The HSIP is a core Federal-aid program with the purpose to achieve a significant reduction in fatalities and serious injuries on all public roads. The HSIP requires a data-driven, strategic approach to improving highway safety on all public roads that focuses on performance. The NPRM was published to incorporate the new statutory requirements of MAP-21 and the FAST Act, as well as general updates to provide consistency with 23 U.S.C. 148 and to provide State and local safety partners with clarity on the purpose, definitions, policy, program structure, planning, implementation, evaluation, and reporting of the HSIP. Specifically, MAP-21 removed the requirement for States to prepare a Transparency Report, removed the HRRR set-aside, and removed the 10 percent flexibility provision for States to use safety funding in accordance with 23 U.S.C. 148(e) [as it existed under SAFETEA-LU]. The MAP-21 also adds data system and improvement requirements, State SHSP update requirements, and requirements for States to develop HSIP performance targets. The DOT is addressing specific requirements related to HSIP performance target requirements through a separate, but concurrent, rulemaking effort (FHWA-2013-0020).

As discussed above, the MAP-21 required the Secretary of Transportation to establish a subset of the model inventory of roadway elements, or the MIRE FDE, that are useful for the inventory of roadway safety. The U. S. Government Accountability Office (GAO) supported collection of FDEs on the progress made toward accomplishing the HSIP goals in a November 2008, report entitled “Highway Safety Improvement Program: Further Efforts Needed to Address Data Limitations and Better Align Funding with States' Top Safety Priorities.” As discussed in the NPRM, the GAO report recommended that the Secretary of Transportation direct the FHWA Administrator to take specific actions and FHWA published, “Guidance Memorandum on Fundamental Roadway and Traffic Data Elements to Improve the Highway Safety Improvement Program.” 12 As part of addressing GAO's recommendations, FHWA engaged in efforts to obtain public input. The FHWA hosted a peer exchange at the 2009 Asset Management Conference, two Webinars in December 2009, and one listening session at the January 2010 Transportation Research Board meeting to obtain input on possible approaches to address the GAO's recommendations. During the Webinars and the listening session, FHWA listened carefully to the comments and concerns expressed by the stakeholders and used that information when developing the August 1, 2011, Guidance Memorandum. The August 1 Guidance Memorandum formed the basis for the State Safety Data System guidance published on December 27, 2012.

The FHWA received 62 letters submitted to the docket containing approximately 425 individual comments. Comments were received from 41 State departments of transportation (State DOT), 4 local government agencies, 10 associations (e.g. the American Association of State Highway and Transportation Officials (AASHTO), American Transportation Safety Services Association (ATSSA), and Geospatial Transportation Mapping Association (GTMA)), and 7 private citizens. The FHWA has reviewed and analyzed all the comments received. The FHWA has also reviewed and considered the implications of the FAST Act on the HSIP Final Rule. The significant issues raised in the comments and summaries of the FHWA's analyses and determinations are discussed below.

The FHWA did not receive any substantive comments regarding the proposed change to clarify that the purpose of this regulation is to prescribe requirements for the HSIP, rather than to set forth policy and therefore revises the regulation as proposed.

As proposed in the NPRM, FHWA removes the following definitions because they are no longer used in the regulation: “integrated interoperable emergency communication equipment,” “interoperable emergency communications system,” “operational improvements,” “safety projects under any other section,” “State,” and “transparency report.” There were no substantive comments to the docket regarding the proposed removal of these definitions; therefore FHWA removes them in this final rule.

In the NPRM, FHWA also proposed to remove the definition of “high risk rural road” (HRRR) because this term is no longer used in the regulation. The Delaware DOT supported the removal of the term. However, ATSSA and the American Highway Users Alliance suggested retaining the definition of the term “high risk rural road” because there is still a special rule that links to HRRRs in MAP-21. The Arizona DOT suggested that, if an HRRR is considered a public road, it should be treated like any other public road, rather than as part of a special rule, and HSIP funds should be used to target locations of high frequency of fatalities or serious injuries. As a result, Arizona DOT suggested that a consistent definition for HRRR should be established that applies to all States. Under 23 U.S.C. 148(a)(1), States have the flexibility to define high risk rural road in accordance with their updated SHSP. Because the definitions portion of the regulation is meant to define specific terms used in the regulation, the FHWA deletes the definition in the final rule, since the term is not used in the regulation.

In the NPRM, the FHWA proposed to remove the definition of “highway-rail grade crossing protective devices” from the regulation. The ATSSA, the Railway Supply Institute, and the American Highway Users Alliance all opposed the removal of the definition. The Railway Supply Institute and the American Highway Users Alliance cited the provisions in 23 U.S.C. 130 that allow funds to be available for the installation of protective devices at railway-highway crossings. The commenters suggested that given that statutory requirement, it is important to provide a clear definition of the type of devices eligible for funding under this section of law, and that the existing definition of protective devices in 23 CFR 924.3 does that and should be retained. In addition, commenters noted that a version of this term was retained in 23 CFR 924.11. The FHWA agrees and retains the definition in the final rule with a slight modification to the term, revising it to “railway-highway crossing protective device.” The FHWA uses the term “railway” rather than railroad throughout the regulation for consistency with the program title under 23 U.S.C. 130.

Although FHWA did not propose a change to the term “hazard index formula” the FHWA received a comment from Washington State DOT suggesting the term implies an unsafe condition. The AASHTO and Georgia DOT commented that the term “hazard,” which is used throughout the regulation, implies an unsafe condition on a roadway. The commenters suggested that the use of the term “hazard” creates a liability for many State DOTs since it implies that an unsafe condition does exist when it does not. The commenters requested that the term “risk” or “relative risk” be used, because it would be more accurate and not inadvertently create potential liability for State DOTs, and would be more in keeping with the state of the practice. Because “hazard index formula” is an industry standard term and changing it would cause confusion, FHWA retains the existing term. The FHWA agrees with the commenter that the hazard index formula is used for determining the relative risks at a railway-highway crossing and therefore revised the definition to refer to “relative risk.” Because the term “hazard” is used throughout the legislation, FHWA retains the term for consistency between the legislation and the regulation.

In the NPRM, FHWA proposed to revise the definition for the term “highway” to clarify the definition of 23 U.S.C. 101(a) and the provision that HSIP funds can be used for highway safety improvement projects on any facility that serves pedestrians and bicyclists pursuant to 23 U.S.C. 148(a)(4)(B)(v) and (e)(1)(A). The GTMA suggested that, given the role of roadway pavement markings in supporting advanced lane detection vehicle technologies, the term “markings” be included as one of the associated elements of a road, street, or parkway in the definition of the term “highway.” The FHWA agrees and includes “markings” in the definition of the term “highway.”

The FHWA proposed to revise the definition of “highway safety improvement program” in the NPRM by adding the acronym “HSIP” to indicate that when the acronym HSIP is used in the regulation it is referring to the program carried out under 23 U.S.C. 130 and 148, and not the program of highway safety improvement projects. The FHWA proposed to include a listing of the HSIP components—Strategic Highway Safety Plan (SHSP), Railway-Highway Crossings program, and program of highway safety improvement projects—in the definition. The GTMA suggested that the definition indicate that the program is designed to significantly reduce traffic fatalities and serious injuries on all public roads through the implementation of the provisions in 23 U.S.C. 130 and 148. The FHWA agrees and revises the definition to indicate that the purpose of the HSIP is to reduce fatalities and serious injuries on all public roads through the implementation of the provisions of 23 U.S.C. 130, 148, and 150. The FHWA adds a reference to 23 U.S.C. 150 in the final rule to be inclusive of all applicable legislation. The FHWA also adds the term “data-driven,” as suggested by the Rhode Island DOT, to describe the SHSP and to clarify that it is developed from a data-driven approach.

In the NPRM, FHWA proposed to revise the definition of “highway safety improvement project” to specify that it includes strategies, activities, and projects and that such projects can include both infrastructure and non-infrastructure projects under 23 U.S.C. 148(a)(4)(A) and (c)(2)(C)(i). The ATSSA disagreed with the expansion of the definition to include both infrastructure and non-infrastructure projects, stating that the HSIP was created to focus on safety infrastructure investments. The FAST Act limits HSIP eligibility to the inclusions list in 23 U.S.C. 148(a)(4)(B). Therefore, FHWA removes the general reference to non-infrastructure projects as proposed in the NPRM. The ATSSA also disagreed with the removal of the listing of example projects from the regulation. The ATSSA reasoned that the list was created for a reason to serve as a guidepost and to direct States in their investment decisions, and that while it is not an exhaustive list, it does reiterate the types of infrastructure projects that funds should be focused on in the States. Because it is not an exhaustive list, FHWA believes it is best to refer readers to 23 U.S.C. 148(a) for the most current list of example projects.

The FHWA replaces the term “public grade crossing” with “public railway-highway crossing” because the term public grade crossing is no longer used in the regulation. It was replaced with public railway highway crossing in section 924.9 in the NPRM. In addition, consistent with the NPRM, FHWA revises the definition of this term to clarify that associated sidewalks, pathways, and shared use paths are also elements of a public grade crossing pursuant to 23 U.S.C. 130(l)(4)(A)(i) and (ii). There were no substantive comments regarding this change.

The ATSSA, GTMA, and Maine DOT supported the proposed addition to the definition of “public road” that non-State-owned public roads and roads on tribal lands are considered public roads pursuant to 23 U.S.C. 148(a)(12)(D), (b)(2), (c)(2)(A)(i), (c)(2)(D)(ii), and (d)(1)(B)(viii) in the NPRM. Virginia DOT suggested clarification regarding Federal roadways as well as alleys and service roads maintained by a public agency. The FHWA reiterates that Federal roadways are included in the definition of public road, unless otherwise noted, and that a public road is any road open to public travel, which includes alleys and service roads. The purpose of the HSIP is to reduce fatalities and serious injuries on all public roads. Therefore, FHWA encourages State DOTs to coordinate with all relevant stakeholders to meet the requirements of the program. Comments from Alaska and Arizona DOTs regarding data collection on public roads and roads open to public travel are addressed in section 924.17.

Although FHWA did not propose changes to the term “road safety audit” in the NPRM, ATSSA suggested that FHWA clarify that the purpose of the “road safety audit” is to improve road safety for all users. The FHWA agrees and makes this change in the final rule.

The FHWA removes “vehicle data” from the listing of safety data components in the definition of “safety data” to be consistent with MAP-21, 23 U.S.C. 148(a)(9)(A), as proposed in the NPRM. As suggested by the GTMA, FHWA adds the term “characteristics” to reinforce that “roadway” refers to the physical attributes of the road segment.

In the NPRM, FHWA proposed to expand the definition of “safety stakeholder” to include a list of stakeholders. Although the list is not exhaustive, FHWA proposed including this list to ensure that States are aware of the range of stakeholders that are, at a minimum, required to be involved in SHSP development and implementation efforts. While the Mid-America Regional Council (the Metropolitan Planning Organization (MPO) for the bi-state Kansas City region) supported the inclusion of MPOs in the list of safety stakeholders, the GTMA suggested that FHWA add State and local emergency medical response officials and private sector representatives involved with roadway safety and data collection because they could provide valuable perspectives on the impacts of crashes. The FHWA agrees that these entities could provide meaningful information and States are encouraged to include such entities, as well as others that are not listed, in their safety planning efforts. The FHWA retains the definition as proposed in the NPRM to be consistent with MAP-21.

Although FHWA proposed to revise the definition of “serious injury” in the NPRM, FHWA deletes the definition of “serious injury” in the final rule due to the concurrent rulemaking for safety performance measures (FHWA-2013-0020 at 79 FR 13846). A specific definition of serious injury is not necessary for this regulation. States have effectively managed the HSIP using their own definition for serious injury since the inception of the HSIP. The MAP-21 or FAST did not make any changes to how the HSIP is managed or administered regarding serious injury. Not including a serious injury definition in this regulation gives States the flexibility to consider their own definition of serious injuries for problem identification. However, since it is necessary for all States to use the same definition of “serious injury” for safety performance measures, the term will be defined exclusively in 23 CFR part 490.

In the NPRM, FHWA proposed to revise the definition of “strategic highway safety plan” to indicate that the SHSP is a multidisciplinary plan, rather than a data-driven one to be consistent with MAP-21. Wisconsin DOT supported the concept that the SHSP is a multidisciplinary plan and that the multidisciplinary component is an important part of the plan. The Rhode Island DOT indicated that they view the SHSP as a multidisciplinary plan that is developed from a data-driven approach, and therefore felt that removing data-driven requirement from SHSP seems to contradict with the objective of HSIP. Delaware DOT and ATSSA also disagreed with removing the term “data-driven” and suggested it be retained due to the importance of linking investments of HSIP funds to data in MAP-21. The FHWA agrees that the SHSP should be developed based on data and revises the definition in the final rule to reflect that the SHSP is a comprehensive, data-driven plan consistent with the definition in 23 U.S.C. 148. The term comprehensive as used here means multidisciplinary. Additional clarification will be provided in guidance.

In the NPRM, FHWA proposed to add definitions for “spot safety improvement” and “systemic safety improvement” to clarify the difference between these types of improvements. The Minnesota DOT suggested further clarification to the definition of “systemic safety improvement,” since it goes beyond a countermeasure that is being widely installed. Minnesota DOT suggested further definition is needed so States can confidently deploy systemic safety projects in small quantities when needed, and prohibit large quantity deployments of unproven countermeasures under the guise of a systemic safety project. The FWHA agrees and revises the definition in the final rule to indicate that systemic safety improvements are proven safety countermeasures. The FHWA adopts the definition for “spot safety improvement” as proposed in the NPRM.

As proposed in the NPRM, FHWA adds two definitions of terms used in the regulation: “Model Inventory of Roadway Elements (MIRE) Fundamental Data Elements” and “reporting year.” There were no significant comments to the docket regarding these definitions; however, FHWA incorporates minor editorial changes to the definition of “Model Inventory of Roadway Elements (MIRE) Fundamental Data Elements” in the final rule.

As proposed in the NPRM, FHWA incorporates minor editorial modifications in paragraph (a) to explicitly state that the HSIP's objective is to significantly reduce fatalities and serious injuries, rather than “the occurrence of and potential for fatalities and serious injuries” as written in the existing regulation.

In the NPRM, FHWA proposed to delete from paragraph (b) the provisions related to 10 percent flex funds, due to the removal of the flex fund provisions in MAP-21. The AASHTO and Georgia DOT supported the elimination of the 10 percent flex funds provision in exchange for being able to use the funds to maximize the potential safety benefit of HSIP expenditures. The FHWA also proposed to add language that funding shall be used for highway safety improvement projects that maximize opportunities to advance safety consistent with the State's SHSP and have the greatest potential to reduce the State's fatalities and serious injuries. The AASHTO and Minnesota DOT suggested that the language, as proposed, appeared to be unduly detailed or prescriptive and would not allow a State the flexibility and ability to program safety projects that might act to curtail State programming flexibility beyond any statutory requirement. Georgia DOT also expressed concern that the proposed language implies that all projects can be compared side-by-side to one another, which is not possible or practicable. Montana DOT expressed similar concerns. As a result, the FHWA revises the language in the final rule to state that HSIP funds shall be used for highway safety improvement projects that are consistent with the State's SHSP, and that HSIP funds should be used to maximize the opportunities to advance highway safety improvement projects that have the greatest potential to reduce the State's roadway fatalities and serious injuries.

In the NPRM, FHWA further proposed to clarify that prior to using HSIP funds for non-infrastructure related safety projects, other Federal funds provided to the State for non-infrastructure safety programs (including but not limited to those administered by the National Highway Traffic Safety Administration (NHTSA) and Federal Motor Carrier Safety Administration (FMCSA)) should be fully programmed. The FHWA's intent in the NPRM was for States to use all available resources to support their highway safety needs and make progress toward a significant reduction in fatalities and serious injuries on all public roads. The NPRM further stated that in the case of non-infrastructure projects involving NHTSA grant funds, State DOTs should consult State Highway Safety Offices about the project eligibility under 23 U.S.C. 402.

The AASHTO expressed concern that a lack of flexibility by the Federal agencies will impact any opportunities that States may have to be innovative in using such funds to address non-infrastructure types of safety projects. The AASHTO, virtually all of the States that commented on this provision, California Walks, and a private citizen supported the ability to use HSIP funds for non-infrastructure projects, but expressed concern that the added requirement of “all other eligible funding for non-infrastructure projects must be used prior to using HSIP funds” may be limiting and a detriment. Michigan DOT stated that non-HSIP funding for non-infrastructure based safety solutions may not be under the direction of the State DOT and, therefore, the flexibility of State DOTs in the use of HSIP funding should not be restricted by the decisions made on how non-HSIP funds are used by other entities. The AASHTO stated that if a non-infrastructure project/program meets the HSIP approved criteria, the State DOT should be able to utilize the funds as needed. The Michigan DOT also suggested that the Federal-aid highway program is a State-administered, federally funded program, and the proposed language appears to exceed the boundaries of the Federal role in project selection. The ATSSA expressed disagreement with the use of HSIP funds for non-infrastructure projects. The GTMA expressed support for the use of HSIP funds to integrate FMCSA and NHTSA crash data into a basemap designed to develop a more comprehensive and strategic approach to safety, including training and other data initiatives to assist in using basemap data to assist in the enforcement of behavioral and FMCSA-related laws. They also expressed their support for the use of HSIP funds for the collection of mobile imaging, LiDAR, retroreflectivity, friction and 3D pavement and bridge deck imaging data. Understanding the need to strike a balance, GTMA encouraged FHWA to put in place strong accounting measures to ensure that any funds transferred from HSIP to other safety or non-safety programs be traceable and that a justification be provided prior to approval. The GTMA strongly supported the proposed provision to require other eligible funding to be used for non-infrastructure projects in order to help maintain programmatic integrity and transparency among the various safety programs. Georgia, Kentucky, Idaho, Montana, North Dakota, South Dakota, and Wyoming DOTs suggested there be a stronger tie to fund projects and programs that are supported by the SHSP. The FAST Act limits HSIP eligibility to the inclusions list in 23 U.S.C. 148(a)(4)(B); accordingly, the FHWA removes this provision in the final rule.

As proposed in the NPRM, FHWA removes the first sentence of existing paragraph (c) regarding the use of other Federal-aid funds, since this information is repeated in § 924.11 (Implementation) and is better suited for that section. The FHWA also incorporates minor edits to the paragraph to provide more accurate references to the National Highway Performance Program (NHPP) and the Surface Transportation Program (STP) Federal-aid programs, and removes references to the Interstate Maintenance (IM), National Highway System (NHS), and Equity Bonus funding sources, since these funding programs have been consolidated into other program areas. The California State Association of Counties (CSAC) expressed concerns with the policy that safety improvements that are provided as part of a broader Federal-aid project should be funded from the same source as the broader project. The CSAC expressed support for the principle that safety should be considered in all Federal-aid projects, yet cautioned that there may be circumstances when a smaller agency would need to use HSIP funding in addition to other funding sources in order to deliver a complete project. Alaska DOT suggested that the proposed changes are less clear and limit flexibility by limiting funding to one type of Federal-aid per project.

The FHWA's intent is not to limit flexibility, rather to promote the use of all available funding sources to implement safety improvements. In general, it is FHWA's policy that safety improvements/features should be funded with the same source of funds as the primary project. However, FHWA realizes there are some exceptions that may occur on a limited basis, such as when a programmed highway safety improvement project(s) overlaps with a standard road project, or for a designated period of time when a State wishes to advance implementation of an innovative safety countermeasure. The FHWA reiterates that the intent of this provision remains unchanged from the existing HSIP regulation and retains the proposed language.

In paragraph (a), FHWA clarifies the structure of the HSIP, as proposed in the NPRM, by specifying that the HSIP is to include a SHSP, a Railway-Highway Crossings Program, and a program of highway safety improvement projects. As discussed in the NPRM, FHWA believes that listing the three main components will help States better understand the program structure. The GTMA expressed support for this change.

In the NPRM, FHWA proposed to clarify in paragraph (b) that the HSIP shall include a separate process for planning, implementation, and evaluation of the HSIP components described in § 924.7(a) for all public roads in the State. The North Carolina DOT suggested that the language needed to be clarified if the intent of the revision is to require the HSIP process to cover all public roads versus develop different processes for State maintained and non-State maintained public roads. As a result, FHWA revises the final rule to clarify that the HSIP process shall address all public roads in the State. The FHWA also incorporates minor revisions, as proposed in the NPRM, to require that the processes be developed in cooperation (rather than consultation) with the FHWA Division Administrator and be developed in consultation (rather than cooperatively) with officials of the various units of local and tribal governments; it further adds that other safety stakeholders shall also be consulted, as appropriate. In addition, FHWA clarifies that the processes developed are in accordance with the requirements of 23 U.S.C. 148. Finally, FHWA removes the existing last sentence of the regulation that references what the processes may include, since that language is more appropriate for guidance documents, rather than regulation.

The GTMA supported the revisions in this section with the suggestion that additional stakeholders be included in the definition of “safety stakeholder” in § 924.3.

As discussed in the NPRM, FHWA reorganizes and revises paragraph (a) so that it reflects the sequence of actions that States should take in the HSIP planning process. As a result of this reorganization, the HSIP planning process now includes six distinct elements, including a separate element for updates to the SHSP, which currently exists under the safety data analysis process. The FHWA also removes existing paragraph (a)(3)(iii) regarding the HRRR program to reflect the change in statute. While there were no public comments regarding the proposed reorganization of paragraph (a), there were comments related to several individual items, which are included in the discussion below along with key revisions to each element of § 924.9(a).

The FHWA revises paragraph (a)(1) to group data as “safety data,” rather than specifying individual data components and specifies that roadway data shall include MIRE FDE as defined in § 924.17 and railway-highway crossing data shall include all fields from the DOT National Highway-Rail Crossing Inventory. As discussed in the NPRM, MIRE FDE are a basic set of elements an agency would need to conduct enhanced safety analyses regardless of the specific analysis tools used or methods applied and they have the potential to support other safety and infrastructure programs in addition to the HSIP. While Washington State DOT supported including safety data on all public roads, the Wyoming, South Dakota, North Dakota, Indiana, Vermont, Massachusetts, Utah, Montana, Oklahoma, Illinois, Kentucky, Arizona, North Carolina, California, and Virginia DOTs all expressed concern with collecting MIRE FDE on all public roads. These DOTs expressed concerns related to collecting data on low volume, unpaved, and tribal lands roads where there are not significant numbers of crashes or safety concerns compared to other roads. The commenters suggested that the time required to collect such data, as well as the associated costs, creates extra burden and resource investments. The GTMA supported the efforts to create a nationwide base map of all public roads and suggested that the MIRE FDE are in line with MAP-21 requirements. The FHWA retains the language for paragraph (a)(1) as proposed in the NPRM, but incorporates substantial changes to the MIRE FDE as discussed below in § 924.17 to address comments expressing concern for the increased cost and burden for collecting data on all public roads.

As proposed in the NPRM, FHWA revises paragraph (a)(2) to clarify that safety data includes all public roads. The FHWA retains the language for paragraph (a)(2) as proposed in the NPRM, with minor editorial changes.

As proposed in the NPRM, FHWA reorders and combines some of the items formerly in paragraph (a)(3)(ii) to reflect the sequence of actions States should take in HSIP planning. The revisions highlight the importance of the SHSP in the HSIP planning process and that it is a separate element. Key revisions, as well as those for which there were significant comments, are discussed herein. The MAP-21 requires FHWA to establish a SHSP update cycle, so FHWA proposed a maximum 5-year update cycle in paragraph (a)(3)(i) to reflect current practice in some States. The FHWA received support for the 5-year update cycle from most of the State DOTs who commented about the update cycle. Washington State DOT supported the 5-year update cycle, but also suggested that some States may desire a shorter update cycle. Therefore, Washington State DOT suggested FHWA provide flexibility to allow States to update their SHSP more frequently. Missouri DOT updates their SHSPs every 4 years and requested similar flexibility in the update requirement. The GTMA suggested that States be required to submit their first SHSP 7 years from the date of enactment of MAP-21 and that subsequent plans be updated every 5 years. The MAP-21 requires States to update their SHSP by August 1st of the fiscal year following the establishment of the update requirements. The FHWA retains the language as proposed in the NPRM noting that the regulation also states, “A SHSP update shall be completed no later than five years from the previous date.” This language allows States to update their SHSPs more frequently than every 5 years, providing flexibility for States who choose more frequent updates.

Paragraph (a)(3)(iii) proposed the FHWA Division Administrator to approve the update process. Virginia DOT suggested that the requirement for a “process” description and approval should be clarified and recommended that language be added to specify when documentation must be submitted to FHWA for review and approval of a State's SHSP update process. The GTMA suggested that any process review be conducted by the FHWA Administrator's office, not the Division Administrator. Their recommendation is that FHWA Division Administrators should provide guidance in the SHSP development process, and since they are involved in the development then someone else should have responsibility for providing approval. The FHWA retains the language as proposed because the FHWA Division Administrators have been delegated the authority to act on behalf of the Administrator. Further, since the Divisions are involved in the update process, they are in the best position to determine if that process is consistent with MAP-21 requirements.

To address comments from AASHTO, Idaho, Montana, North Dakota, South Dakota, Wyoming, and Georgia DOTs, as well as GTMA, FHWA revises paragraph (a)(3)(vii) to reflect that the SHSP update shall identify key emphasis areas and strategies that have the greatest potential to reduce highway fatalities and serious injuries and focus resources on areas of greatest need. The FHWA removes the phrase “greatest potential for a rate of return on safety investments,” to address comments suggesting that such language implies preparing project-level cost benefit analyses which are not appropriate at the planning level. The use of the term “rate of return” was not intended to reference a statistical methodology. The GTMA suggested changing the phrase “key features when determining SHSP strategies” in paragraph (a)(3)(vii) to mirror the legislation to read “key factors . . .” The FHWA retains the phrase “key features,” as proposed in the NPRM, because FHWA feels this language to be consistent with the level of detail appropriate for the SHSP.

To respond to a comment from GTMA requesting clarification on the process and potential resources for implementing strategies in the emphasis areas described in paragraph (a)(3)(xi), FHWA reiterates that this item serves as a basic, high-level description of the process covered in paragraph (a)(4) and does not require a validation process for each project at this level of SHSP planning. For example, some States (such as Louisiana, Maryland and Pennsylvania) include in their SHSP a section that explains how they plan to successfully implement the SHSP. They describe the process for ongoing communication and feedback from SHSP partners, which action items have been identified for each partner, and how the plan will be tracked and monitored. Other States (such as Virginia and Rhode Island) have also included emphasis area plans in their SHSPs, which outline the strategies, related action steps, and the agency responsible for implementing the strategies/steps. States can also discuss potential funding sources to implement the SHSP, such as the HSIP, NHTSA's Section 402 funds, etc. There were no comments regarding the remaining paragraphs within paragraph (a)(3), therefore they are revised as proposed in the NPRM.

The FHWA revises this item, as proposed in the NPRM, incorporating a suggestion from Kentucky DOT to phrase paragraph (a)(4)(i) to reflect that the purpose of HSIP is to “reduce fatalities and serious injuries” to provide consistent language throughout the regulation. To correspond with changes made in § 924.3, FHWA incorporates minor editorial edits in paragraph (a)(4)(ii) to remove the term “hazard,” replacing it with the term “risk” and deleting the word “grade” from “railway-highway crossings.”

As stated in the NPRM, paragraph (a)(5) contains no substantial edits.

The FHWA incorporates minor edits in the final rule to reflect comments from Virginia DOT suggesting that the process for establishing priorities for implementing highway safety improvement projects “considers” (rather than “includes”) the sub-items listed. The FHWA believes this revision will provide States with more flexibility in establishing their processes. Given this flexibility, it is important that States conduct a periodic review of their HSIP practices and procedures to identify noteworthy practices and opportunities to advance HSIP implementation efforts.

As proposed in the NPRM, FHWA revises paragraph (b) by changing, adding, and removing references to various legislation for consistency with other sections in this regulation. The FHWA revises the language proposed in the NPRM that clarifies the use of these funding categories is subject to the individual program's eligibility criteria and the allocation of costs based on the benefit to each funding category, to be consistent with Office of Management and Budget's (OMB) revised administrative requirements and cost principles under 2 CFR part 200.

In paragraph (c), as proposed in the NPRM, FHWA clarifies that HSIP-funded non-infrastructure safety projects (e.g. transportation safety planning; collection, analysis, and improvement of safety data) shall also be carried out as part of the Statewide and Metropolitan Transportation Improvement Planning (STIP) processes consistent with the requirements of 23 U.S.C. 134 and 135 and 23 CFR part 450. In the NPRM, the FHWA also proposed to add a requirement that States distinguish between infrastructure and non-infrastructure projects in the STIP in order to assist in formalizing the required tracking of the funds programmed on infrastructure and non-infrastructure projects for State and FHWA reporting purposes. Similar to the comments regarding the use of funds for non-infrastructure projects in § 924.5, ATSSA expressed disagreement with the use of HSIP funds for non-infrastructure projects, as did GTMA. The FAST Act limits HSIP eligibility to the inclusions list in 23 U.S.C. 148(a)(4)(B); accordingly, FHWA removes the proposed language requiring States to distinguish between infrastructure and non-infrastructure projects in the STIP.

As proposed in the NPRM, FHWA removes former paragraph (b) describing the 10 percent flex funds and former paragraph (c) describing funding set asides for improvements on high risk rural roads to reflect changes associated with MAP-21.

In the NPRM, FHWA proposed adding new paragraph (b) to require States to incorporate an implementation plan by July 1, 2015, for collecting MIRE FDE in their State's Traffic Records Strategic Plan and that they shall complete collection of the MIRE FDE on all public roads by September 30, 2020. The preamble for the NPRM also stated that due to the uncertainty in time periods for publishing rulemakings, it is possible that the dates will be changed to reflect a specific time period based upon the effective date of a final rule for this NPRM. While the Missouri DOT acknowledged that it could have an implementation plan in place by July 1, 2015, many State DOTs and the Association of Monterey Bay Area Governments stated that the both the July 2015 deadline for an implementation plan and the 5-year deadline for complete collection of MIRE FDE were too aggressive. The AASHTO and California, Maine, Massachusetts, and Missouri DOTs suggested that the proposed September 2020 timeframe for collecting data on all public roads was aggressive and likely not achievable; however, Delaware DOT indicated that they could meet the deadline. The AASHTO, Georgia, Oklahoma, South Dakota, and Vermont DOTs suggested a 10-year timeframe for collecting data would be more appropriate. The GTMA suggested that FHWA amend the language to require complete collection of MIRE FDE on all NHS routes by September 30, 2018, and all public roads by September 30, 2022. The AASHTO suggested that the regulation be modified to allow States to develop an implementation plan that prioritizes the collection of MIRE FDE as resources are made available. Georgia DOT submitted a similar comment.

The FHWA understands concerns expressed by the commenters. As a result, FHWA revises the final rule language to require States to incorporate specific quantifiable and measureable anticipated improvements for the collection of MIRE FDE into their Traffic Records Strategic Plan by July 1, 2017. The additional 2 years provided in this final rule will give States additional time to coordinate with all relevant entities, including local and tribal agencies, to identify and prioritize MIRE FDE collection efforts. The FHWA also revises the final rule to specify that States shall have access to a complete collection of the MIRE FDE on all public roads by September 30, 2026. This change clarifies that States only need to have access to data, rather than to actually collect the data themselves. It also extends the deadline for complete collection of the MIRE FDE on all public roads by 6 years from what was proposed in the NPRM. Based on the NPRM comments described above, FHWA believes that 10 years is adequate to complete collection of the MIRE FDE as revised in this final rule in section 924.17.

As proposed in the NPRM, FHWA adopts new paragraph (c) requiring the SHSP to include actions that address how the SHSP emphasis area strategies will be implemented.

In paragraph (d), FHWA removes language regarding specific use of 23 U.S.C. 130(f) funds for railway-highway crossings, because reference to 23 U.S.C. 130 as a whole is more appropriate than specifying just section (f). The FHWA retains language about the Special Rule under 23 U.S.C. 130(e)(2) authorizing use of funds made available under 23 U.S.C. 130 for HSIP purposes if a State demonstrates it has met its needs for installation of railway-highway crossing protective devices to the satisfaction of the FHWA Division Administrator, in order to ensure that all States are aware of this provision.

As proposed in the NPRM, FHWA revises paragraph (g) [formerly paragraph (h)] regarding the Federal share of the cost of a highway safety improvement project carried out with funds apportioned to a State under section 23 U.S.C. 104(b)(3) to reflect 23 U.S.C. 148(j). The GTMA expressed support for allowing 23 U.S.C. 120 and 130 reimbursement exceptions to be made available for the HSIP. The FHWA removes existing paragraphs (g) and (i) because the regulations are covered elsewhere and therefore do not need to be in this regulation. In particular, existing paragraph (g) is addressed in 23 CFR 450.216, which documents the requirements for the development and content of the STIP, including accounting for safety projects. In addition, existing paragraph (i) regarding implementation of safety projects in accordance with 23 CFR part 630, subpart A, applies to all Federal-aid projects, not just HSIP, and is therefore not necessary in the HSIP regulation.

The FHWA retains existing paragraphs (a), (e), and (f) with minimal editorial changes. The ATSSA expressed support for paragraph (e) that highway safety improvement projects be implemented with other funds and suggested that care should be taken to ensure that highway safety improvement projects funded with other programs are in addition to projects funded by the HSIP, not instead of. The ATSSA disagreed with the existing provision in paragraph (f) that again allows HSIP funds to be used for non-highway construction projects. These are existing provisions for which FHWA does not adopt any changes, except revisions to be consistent with OMB's revised administrative requirements and cost principles under 2 CFR part 200.

The FHWA incorporates the following changes to paragraph (a) regarding the evaluation of the HSIP and SHSP:

The FHWA proposed to revise paragraph (a)(1) to clarify that the process is to analyze and assess the results achieved by highway safety improvement projects and the Railway-Highway Crossing Program, and not the HSIP as stated in the existing regulation. As stated in the NPRM, this change is consistent with the clarifications to Program Structure, as described in § 924.7. The Delaware and Virginia DOTs and GTMA expressed concern that the evaluation of individual projects could be time intensive without achieving the goal of understanding the overall impact of safety programs. The FHWA revises paragraph (a)(1) to reference the program of highway safety improvement projects, rather than individual projects. Texas DOT requested further details regarding the evaluation process. The FHWA will provide further clarification in guidance, but in general States are required to develop evaluation processes to best meet their individual program needs. Evaluation processes might include an inventory of previously implemented HSIP projects to support safety performance evaluations of individual projects, countermeasures, and the program as a whole. These processes might also specify specific methodologies and available resources to support evaluation. As stated in the NPRM, States currently evaluate highway safety improvement projects to support the evaluation of the HSIP; therefore this clarification does not require States to change their evaluation practices or the way they report their evaluations to FHWA. The FHWA also proposed to revise the outcome of this process to align with the performance targets established under 23 U.S.C. 150 as a requirement in section 1203 of MAP-21, which is the subject of a concurrent rulemaking for safety performance measures (FHWA-2013-0020 at 79 FR 13846). The FHWA revises the language in the final rule to reflect that contributions to improved safety outcomes are important, as well as attaining performance targets, based on a comment from AASHTO and several State DOTs to emphasize long-term, outcome-oriented focus as well as short-term targets. The process for evaluating achievement toward performance targets is described in more detail in the concurrent rulemaking for safety performance measures (FHWA-2013-0020 at 79 FR 13846).

The FHWA revises paragraph (a)(2), as proposed in the NPRM, to clarify that the evaluation of the SHSP is part of the regularly recurring update process that is already required under the current regulations. As part of this change, FHWA removes existing paragraph (a)(2)(i) because ensuring the accuracy and currency of the safety data is part of regular monitoring and tracking efforts. The FHWA revises new paragraph (a)(2)(i) [formerly paragraph (a)(2)(ii)] to reflect that evaluation of the SHSP includes confirming the validity of the emphasis areas and strategies based on analysis of current safety data.

Finally, in new paragraph (a)(2)(ii) [formerly paragraph (a)(2)(iii)] FHWA clarifies that the SHSP evaluation must identify issues related to the SHSP's implementation and progress that should be considered during each subsequent SHSP update. Subsequent SHSP updates will need to take into consideration the issues experienced in implementing the previous plan and identify methods to overcome those issues. Washington DOT commented that while it recognizes the value in reporting the lessons learned from implementation, it was unsure what was meant in the NPRM preamble by “issues experienced” and “steps taken to overcome,” and suggested that examples would provide greater clarity to what is meant by “issues.” The FHWA will provide further clarification in guidance, but an example of an “issue experienced” could be not meeting a SHSP goal or objective. For instance, if a SHSP emphasis area objective is not met, this may suggest a strategy is ineffective, or in some cases, the strategy may not have been implemented as planned. The State should try to identify why the objective was not met and consider alternatives in their SHSP update.

As proposed in the NPRM, FHWA incorporates a minor revision to paragraph (b)(1) to specify that safety data used in the planning process is to be updated based on the results of the evaluation under § 924.13(a)(1).

Finally, FHWA incorporates minor revisions to paragraph (c) to remove references to the STP and NHS [now NHPP], as well as 23 U.S.C. 402 since this is not the primary intent of these programs; removed the reference to 23 U.S.C. 105 since this program was repealed under MAP-21; and replaces the reference to 23 U.S.C. 104(f) with 104(d) to reflect the change in legislation numbering. There were no substantial comments to these revisions in the NPRM.

The FHWA revises the language in the final rule that clarifies that the use of these funding categories is subject to the individual program's eligibility criteria and the allocation of costs based on the benefit to each funding category to be consistent with OMB's revised administrative requirements and cost principles under 2 CFR part 200.

The FHWA removes the requirements for reporting on the HRRR program and the transparency report, as proposed in the NPRM, because MAP-21 removes these reporting requirements.

The FHWA revises the HSIP report requirements to specify what should be contained in these reports. In paragraph (a), FHWA requires that the report be submitted via the HSIP online reporting tool. The AASHTO, Arizona, Delaware, Georgia, Indiana, Michigan, New York, Oklahoma, Rhode Island, Utah, and Texas DOTs all suggested that improvements be made to the online reporting tool. While many supported the principle of submitting reports online, several State DOTs expressed concern with the current functionality of the online reporting tool and suggested that it be improved before use of the tool was mandatory. The State DOTs indicated that there are usability issues with the current tool making it cumbersome to use. Some expressed concern that the tool is error-prone. In addition, States suggested that the security features be improved so that all reviewers and contributors could obtain access.

The FHWA understands that there have been difficulties with the online reporting tool and will continue to host user group discussions to identify and prioritize future enhancements. The FHWA will also continue training and technical assistance activities to support States HSIP reporting efforts. To respond to comments regarding access to and security of the online report tool, FHWA issued a Memorandum of User Profile and Access Control System (UPACS) Credentials on October 4, 2009,13 to provide States with information regarding FHWA's implementation of e-Authentication as a part of the e-Government initiative to enable trust and confidence in e-Government transactions. In this memorandum, FHWA indicated that, in adherence to the DOT Information Assurance guidance, all State DOT users and MPO users accessing FHWA web-based applications would be required to obtain a Level-2 credential by April 1, 2010. The intent for submitting online reports is to ensure consistent reporting across all States and support national HSIP evaluation efforts. Forty-seven States currently use the HSIP online reporting tool to support the HSIP reporting efforts.

As proposed in the NPRM, FHWA replaces paragraphs (a)(1)(i) and (ii) in their entirety. In paragraph (a)(1)(i), FHWA indicates that the report needs to describe the structure of the HSIP, including how HSIP funds are administered in the State, and a summary of the methodology used to develop the programs and projects being implemented under the HSIP on all public roads. In paragraph (a)(1)(ii), FHWA requires that the report describe the process in implementing the highway safety improvement projects and compare the funds programmed in the State transportation improvement program for highway safety improvement projects with those obligated during the reporting year. The FHWA also requires that the report include a list of highway safety improvement projects (and how each relates to the State SHSP) that were obligated during the reporting year, including non-infrastructure projects. There were no substantive comments regarding these changes. The FHWA retains the reference to non-infrastructure projects here since States would still be required to report on HSIP expenditures for those non-infrastructure activities that remain on the inclusions list in 23 U.S.C. 148(a)(4)(B) (e.g. transportation safety planning; collection, analysis, and improvement of safety data).

The FHWA reorganizes new paragraph (a)(1)(iii) to emphasize the importance of long-term safety outcomes and to clarify safety performance target documentation requirements, consistent with comments received on the NPRM. The AASHTO, Vermont, and Arkansas DOTs suggested that FHWA emphasize the long-term outcome-oriented focus, in addition to annual targets. Virginia DOT commented that the language and requirements of regulations 23 CFR parts 490, 924, and 1200 should be consistent with respect to SHSP and HSIP/HSP target setting. The ATSSA suggested that it might be helpful to clarify the details expected related to safety performance targets. As a result, FHWA separates paragraph (a)(1)(iii) into three parts in the final rule. Paragraph (a)(1)(iii)(A) focuses on long-term safety outcomes and requires States to describe general highway safety trends. The FHWA moves all language regarding safety trends to paragraph (a)(1)(iii)(A) of the final rule in order to group similar information together. In addition, FHWA adds a requirement in paragraph (a)(1)(iii)(A) that general highway safety trends for the total number of fatalities and serious injuries for non-motorized users shall be provided in order to reflect the importance of safety for this user group. Paragraph (a)(1)(iii)(B) focuses on documenting the safety performance targets and clarifies that documentation of the safety performance targets shall include a discussion of the basis for each established target, how the established target supports the long-term goals in the SHSP, and for future HSIP reports, any reasons for differences in the actual outcomes and targets. As proposed in the NPRM for paragraph (a)(1)(iii), the safety performance targets required by 23 U.S.C. 150(d) shall be presented for all public roads by calendar year. Paragraph (a)(1)(iii)(C) focuses on the applicability of the special rules and does not change from the NPRM.

As proposed in the NPRM, paragraph (a)(1)(iv) requires that the report assess improvements accomplished by describing the effectiveness of highway safety improvement projects implemented under the HSIP. Virginia DOT suggested that this item describe the evaluation and reporting of individual projects and their type grouping based on outcome frequencies because, for example, intersection crash rates are calculated differently from road crash rates. The FHWA does not specify how the States assess or report on the effectiveness of highway safety improvements. States are required to have an evaluation process under 23 CFR 924.13, but have the flexibility to develop that process to best meet their needs.

Finally, as proposed in the NPRM, FHWA adds a new paragraph (a)(1)(v) to require that the HSIP report be compatible with the requirements of 29 U.S.C. 794(d) (Section 508 of the Rehabilitation Act) whereas previously only the transparency report was required to be compatible. Washington State DOT expressed concern that some States and local agencies may have difficulty in complying with 29 U.S.C. 794(d), Section 508, and that the burden of meeting this requirement may shift to the reporting agency. As a result, they suggested that FHWA consider providing examples of Section 508 compliant reports on the Web site. The HSIP reports are currently available on FHWA's Web site 14 and are 508 compliant. The HSIP MAP-21 Reporting Guidance 15 describes in detail the DOT Web site requirements. Also, reporting into the HSIP Online Reporting Tool meets all report requirements and DOT Web site requirements.

There are no changes to the existing regulation regarding the report describing progress to implement railway-highway crossing improvements.

In the NPRM, FHWA proposed to add a new § 924.17 containing the MIRE FDE for the collection of roadway data. The proposed section consisted of two tables of MIRE FDE listing the MIRE name and number for roadway segments, intersections, and interchanges or ramps as appropriate. The tables differentiated the required MIRE FDE for roads with Average Annual Daily Traffic (AADT) greater than or equal to 400 vehicles per day (Table 1) and roads with AADT less than 400 vehicles per day (Table 2). The FHWA received a significant number of comments regarding the MIRE Fundamental Data Requirements, particularly related to the cost and burden of collecting the data, the required data elements, the requirement to collect data on low-volume roads, and the implementation timeline. Comments related to the implementation timeline are discussed in § 924.11 and comments regarding costs to collect and maintain the data, including comments on FHWA's cost assumptions, are discussed in the Regulatory Analysis section. The following paragraphs describe the remaining docket comments regarding the MIRE FDE. Following the discussion of the docket comments is a description of the changes FHWA adopted in this final rule to address the comments where appropriate.

Required Data Elements: North Dakota suggested that States should be allowed to determine what data is appropriate for their analysis and how it should be collected. Massachusetts DOT indicated that they had previously attempted a program to define and identify distinct intersections and interchanges and found it to be significantly more challenging than anticipated. Ohio DOT supported the data elements to classify and delineate roadway segments, elements to identify roadway physical characteristics, and elements to identify traffic volume, indicating that these requirements will ensure that States have the necessary data to better target roadway investments with the greatest potential to reduce crashes. Delaware DOT and Delaware Valley Regional Planning Commission also supported the required data elements. Arizona, New York, and Texas DOTs, as well as GTMA, suggested additional data elements may be useful such as median/shoulder width, horizontal curve data, speed limit, roadway paved width, median barrier type, shoulder texturing, and centerline texturing, while the League of American Bicyclists and California Walks and Massachusetts DOT suggested that bicycle and pedestrian count information or elements along roadways (bike lanes) or intersections (pedestrian accommodations) be included to help States address crashes associated with non-motorized users. The Virginia DOT echoed those comments, stating that presence/type of bicycle facility (40) and sidewalk presence (51) should be included as data elements that must be collected for urban roadways, stating that this is critical as non-motorized fatalities represent more than 10 percent of all traffic fatalities in Virginia and this information will be important to help analyze and identify safety needs of non-motorized users of the transportation system.

Local, low volume, and unpaved, gravel, and dirt roads: AASHTO, Arizona, Delaware, Montana, Texas, Utah, and Washington State DOTs expressed concern with the requirement to collect data on all public roads, particularly as it related to local, low volume, and unpaved, gravel, and dirt roads. Arizona DOT and GTMA expressed support for exempting unpaved, gravel, or dirt roads from MIRE FDE requirements. The Idaho, Montana, North Dakota, South Dakota, and Wyoming DOTs stated that there is not sufficient justification for rules that would require expenditure of considerable funds on data collection, particularly data regarding dirt and gravel roads and other low volume rural roads. They commented that scarce funds would be better directed to actual safety projects. Those DOTs suggested that it is unlikely that data elements related to unpaved roads are “critical” to overall safety management; therefore, FHWA should exclude them from the MIRE requirements. Arizona and Georgia DOTs and the Kansas Association of Counties suggested that States be allowed to develop their own methodologies to estimate AADT on local roads.

As discussed in the NPRM, FHWA includes this section on MIRE FDE to comply with section 1112 of MAP-21 that amends 23 U.S.C. 148 to require model inventory of roadway elements as part of data improvement. As mandated under 23 U.S.C. 148(f)(2), the Secretary of Transportation shall (1) establish a subset of the model inventory of roadway elements that are useful for the inventory of roadway safety; and (2) ensure that States adopt and use the subset to improve data collection. Considering this requirement in conjunction with the other requirements in 23 U.S.C. 148, FHWA cannot exempt certain roads entirely from the MIRE FDE requirements. Section 148(f)(1) of Title 23 U.S.C. defines a data improvement activity to include a project or activity to develop a basemap of all public roads, as well as safety data collection, including data identified as part of the model inventory of roadway elements, for creating or using on a highway basemap of all public roads in a State. In addition, there is frequent mention of safety data for all public roads throughout section 148 (e.g., 23 U.S.C. 148(a)(2), (a)(9), (c)(2)). If all public roads are to be included in the identification and analysis of highway safety problems and opportunities as required by 23 U.S.C. 148(c)(2), FHWA believes that States should be able to at least locate all crashes on all public roads with an LRS. Lastly, the general purpose of the HSIP program is to achieve a significant reduction in traffic fatalities and serious injuries on all public roads (23 U.S.C. 148(b)(2)). Because the collection of these inventory elements ultimately supports implementation of the HSIP, it is important that MIRE FDE be collected for all of the roads eligible under the HSIP. To address comments raised during the rulemaking process, FHWA adds a definition for the term “open to public travel” for the purpose of MIRE FDE; changes the categorization of MIRE FDE from AADT to functional classification and surface type; further reduces the MIRE FDE for unpaved roads; and eliminates intersection data elements for local paved roads in the final rule. A brief description of each of these changes is provided below.

Categorize MIRE FDE requirements for paved roads based on functional classification and surface type, rather than AADT: Several commenters expressed concern about not having AADT (or a good method to estimate AADT) for all public roads, which would make it difficult to determine the applicability of the MIRE FDE requirements using the AADT thresholds proposed in the NPRM. Based on data from a sample of 3 States, FHWA estimates that roughly 72 percent (or 2,941,375 miles) of all public roads have an AADT of less than 400 and would therefore be subject to the FDE requirements proposed in Table 2 of the NPRM. In general, the roads with less than 400 AADT are lower functionally classified roads. According to FHWA Highway Statistics, there were 2,821,867 million miles of roads functionally classified as local roads in the United States in 2011 and 2012. This estimate equates very closely with the estimated miles of roadways subject to the NPRM Table 2 requirements, which were based on AADT estimates. Given the relatively low frequency that actual AADT counts are collected on low volume roads, FHWA changes the criteria for determining if a road is subject to MIRE FDE requirements to the functional classification of the roadway. Functional classification is the process by which streets and highways are grouped into classes, or systems, according to the character of traffic service that they are intended to provide. There are three major highway functional classifications: arterial, collector, and local roads. Non-local paved roads (e.g., arterials and collectors) would be subject to Table 1 in this final rule; whereas, local functionally classified roads would be subject to the Table 2 MIRE FDE requirements. As illustrated in the Table 3 below, this maintains the approximate proportion of roads that would fall into each category as compared to using a threshold of 400 AADT and will address nearly the same amount of fatalities. As an added advantage, this should be easier for the States to administer. The Table 1 and Table 2 MIRE FDE tables are suggested only for use on paved roads.

Create an Unpaved Roads Category: Several commenters expressed concerns with collecting the reduced set of the FDEs proposed in Table 2 of the NPRM on unpaved roads. Their concerns centered around the relative lack of a safety problem on these roads and the difficulty in collecting the information. The AASHTO and many State DOTs suggested that FHWA create a third roadway category for MIRE FDE data collection on unpaved roads. Based on 2011 and 2012 data, unpaved roads accounted for an average of 34.7 percent of U.S. roadway miles (1,395,888 miles).16 Fatality data from the same years indicate that only 2.0 percent of fatalities (655) occurred on these unpaved roads.17 Therefore, the FHWA creates a separate, reduced set of FDEs in Table 3 of the final rule that would be required for any unpaved public road. Table 3 MIRE FDE for unpaved roads in the final rule will require States to locate and identify these roads within the State's LRS per HPMS and to provide the functional classification and roadway ownership, which was required in MAP-21. While the FAST Act includes a provision that would allow States to elect not to collect fundamental data elements for the model inventory of roadway elements on public roads that are gravel roads or otherwise unpaved, the MIRE FDE as defined in this regulation are the minimum subset of the roadway and traffic data elements from FHWA's MIRE that are used to support a State's data-driven safety program. States will still be expected to geospatially locate crashes and the reduced FDEs to these unpaved roadway segments to monitor their safety if they intend to use HSIP funds on these roads.

Eliminate Intersection FDEs for Local Roads: Some commenters suggested that the burden to collect local road intersection data was greater than the benefit, since they would likely not use the predictive analysis methods for these facilities. From 2011-2012 there was an average of 1,117 intersection or intersection-related fatalities on roads functionally classified as “local.” 18 This constitutes approximately 3.4 percent of the annual average total (32,739) for all fatalities during this time period. Network screening for these low traffic volume roads can be performed using system-wide or corridor level analyses that combine (but do not distinguish) roadway segment, intersection, and ramp crashes. Corridor-level network screening would identify “intersection” hot spots, as well, and then an agency could collect specific roadway data relative to that location as needed. Therefore, given the ability to identify intersection problems through corridor-level analysis, FHWA eliminates the MIRE FDE requirement for local intersections, reducing the number of required data elements in Table 2 of the final rule from 14 to 9.

The proposed changes discussed above will significantly reduce the data collection burden on States as summarized in Table 4 below. The number of miles of non-local roads for which Table 1 in the final rule applies is approximately 8,000 miles less than proposed in the NPRM. Table 2 of the final rule applies to nearly 1.5 million fewer miles of roads and the number of data elements for those roadway miles is reduced from 14 elements to 9 elements. Table 3, which was not included in the NPRM, includes approximately 1.4 million miles of unpaved roads with only 5 data elements, comprised of name, classification, ownership and length, which does not require additional collection of data. As a result, the final rule includes three tables: Table 1—MIRE FDE for Non-Local (based on functional classification) Paved Roads, Table 2—MIRE FDE for Local (based on functional classification) Paved Roads, and Table 3—MIRE FDE for Unpaved Roads. The FHWA incorporates these changes to address comments regarding the need to reduce the burden on States while maintaining the minimum roadway data needed to make better safety investment decisions.

To address the comments suggesting additional data elements, FHWA suggests that the MIRE FDE included in this final rule are the minimum roadway elements required to conduct system-wide network screening. States may choose to collect additional elements as needed to support system-wide or site-specific analysis. In addition, FHWA does not require a specific method for traffic volume data collection. Agencies may use a methodology that best meets the needs of the State.

The FHWA considered all comments received before the close of business on the comment closing date indicated above, and the comments are available for examination in the docket (FHWA-2013-0019) at Regulations.gov. The FHWA also considered comments received after the comment closing date and filed in the docket prior to the publication of this final rule. The FHWA also considered the HSIP provisions of the FAST Act in the development of this final rule. The FHWA finds good cause under 5 U.S.C. 553(b)(3)(B) to incorporate the provisions of the FAST Act without the need for further notice and comment. The FHWA believes additional public comment would be unnecessary as the FAST Act provisions are not discretionary and update the regulation to reflect current law. Specifically, FHWA removes the provision that required FHWA to assess the extent to which other eligible funding programs are programmed for non-infrastructure projects prior to using HSIP funds for these purposes in this final rule since FAST limited eligibility to those items specifically listed in 23 U.S.C. 148(a)(4)(B).

The FHWA has determined that this proposed action is a significant regulatory action within the meaning of Executive Order 12866 and within the meaning of DOT regulatory policies and procedures due to the significant public interest in regulations related to traffic safety. It is anticipated that the economic impact of this rulemaking will not be economically significant within the meaning of Executive Order 12866 as discussed below. This action complies with Executive Orders 12866 and 13563 to improve regulation.

While MAP-21 resulted in requiring the Secretary to establish three requirements (i.e., MIRE FDE, SHSP update cycle and HSIP report content and schedule), FHWA based the economic analysis in the NPRM on the costs associated with the MIRE FDE only. Because States are already required to update their SHSP on a regular basis, and the proposal for States to update their SHSP at least every 5 years is consistent with current practice, FHWA expects any costs associated with updating the SHSP will be minimal. Alaska, Delaware, Indiana, Maine, North Carolina, and Washington State DOTs agreed that at least a 5-year SHSP update cycle is appropriate and will not create an undue financial burden on the State. Therefore, this assumption remains valid. The FHWA did not propose any changes to the report schedule or frequency in the NPRM. There were only minor changes to the report content related to safety performance targets required under 23 U.S.C. 150(d) and FHWA believed that any associated costs would be offset by the elimination of the transparency report requirements. Further, the actual cost to establish the safety performance target is accounted for in the concurrent rulemaking for safety performance measures (Docket number FHWA-13-0020). There were no comments related to the HSIP report content or associated costs. Since the SHSP update schedule and report content and schedule requirements do not change from the NPRM to the final rule and the comments did not suggest otherwise, the economic analysis for the final rule is based on the MIRE FDE costs only.

The MIRE FDE costs in the NPRM were based on the “MIRE Fundamental Data Elements Cost Estimation Report” dated March 2013.19 The cost estimates developed as part of that report reflected the additional costs that a State would incur based on what is not being collected through HPMS or not already being collected for other purposes. The cost estimate used in the NRPM did not include the cost of analyzing the MIRE FDE and performance measure data. The FHWA received comments from AASHTO, California, Georgia, Idaho, Maine, Massachusetts, Michigan, Missouri, Montana, North Carolina, North Dakota, Pennsylvania, Rhode Island, South Dakota, Texas, Washington State, and Wyoming DOTs as well as the CSAC, Shasta (California) Regional Transportation Agency, and the Mid-America Regional Council MPO suggesting that the costs for collecting the required data would place a burden on their agencies. While many of the commenters expressed general support for the need for data to enhance safety programs, Massachusetts, Montana, and Washington State DOT, commented that the expenditures in collecting this data at the statewide level for all public roads would not be offset by the benefits and would divert funding away from other critical elements of their programs. Arizona DOT suggested that there is potentially more benefit by implementing systemic safety measures on many of the low volume public roads than in MIRE FDE data collection. Arizona, California, Illinois, Indiana, Kentucky, Maine, Massachusetts, Michigan, New York, Rhode Island, Vermont, and Wyoming DOTs all suggested that the costs to collect MIRE FDE would be extensive and likely exceed the cost estimated by FHWA. However, only Washington State DOT provided actual cost information. The cost information the commenters provided was used as additional input to the revised “MIRE Fundamental Data Elements Cost-Benefit Estimation Report” dated March 2015.20

Based on the comments received in the NPRM, FHWA updated the cost-benefit estimation to reflect: (1) the revisions to the category of roadways and the respective MIRE FDEs to be collected on those roadways, (2) a greater period of time for States to collect the information on those three categories of roadway, and (3) additional cost considerations (e.g., formatting and analyzing MIRE FDE data). The “MIRE Fundamental Data Elements Cost-Benefit Estimation” report dated March 2015,21 reflects these updates and estimates the potential cost to States in developing a statewide LRS and collecting the MIRE FDE for the purposes of implementing the HSIP on all public roadways. The cost estimates developed as part of this report reflect the additional costs that a State would incur based on what is not being collected through the HPMS or not already being collected through other efforts. The MIRE FDE Cost-Benefit Estimation Report reflects the total cost for States to collect the MIRE FDE on all public roads, including unpaved roads. While the FAST Act includes a provision that would allow States to elect not to collect fundamental data elements for the model inventory of roadway elements on public roads that are gravel roads or otherwise unpaved, this report includes the cost to collect the MIRE FDE on unpaved roads because they would still be required to meet the full needs of the States' HSIP.

With the passage of MAP-21, States are required to collect data on all public roads, including non-Federal-aid roads. To initiate this process, States need to develop a common statewide relational LRS on all public roads that is linkable with crash data, as required by 23 CFR 1.5 and described in recent FHWA guidance 22 issued on August 7, 2012. Based on this criterion, the report estimated that the cost of developing a statewide LRS beginning in June 2015 and concluding in June 2016 would be $32,897,622 nationally over this time period. This would equate to a cost of approximately $645,051 for each State and the District of Columbia to develop a relational LRS over the 12-month period. The data collection for an average State is $1,546,169 for the initial collection and $5,235,097 for the management, administration, maintenance and miscellaneous costs over the analysis period of 2015-2035 (in 2014 U.S. dollars). These are average costs on a per State basis discounted at 7 percent. As such, across the 50 States and the District of Columbia, it is possible that the aggregate cost for initial data collection would be approximately $79 million over 10 years and the total maintenance, management, administration and miscellaneous costs would approach $267 million over the 20-year analysis period.

Table 5 displays the comparison of estimated total national costs between the estimates provided in the NPRM and updated based on the revised analysis for the final rule. The analysis period for the NPRM assumed a 16-year analysis period (2013-2029). Based on the comments received, FHWA revised the data collection time period and extended the analysis over a 20-year period (2015-2035). Even though States are required to collect fewer data elements as compared to those proposed in the NPRM, the MIRE FDE costs for the final rule are higher than the NPRM, as illustrated in Table 5 below. Based on the comments received, FHWA revised the LRS cost to include a sliding scale based on roadway mileage, revised the baseline data collection assumptions to reflect the most recent HPMS data, added costs to develop a model to estimate traffic volumes, added costs for data quality assurance and control, and added costs for other miscellaneous activities including developing an implementation plan, using a local partner liaison, formatting and analyzing data, and supporting desktop and Web applications. In addition, baseline costs were inflated to 2014 dollars and the analysis period was extended from 16 to 20 years to accommodate the extended timeframe for data collection. The FHWA believes that this is a more accurate representation of the costs States can expect to incur to successfully collect and use the MIRE FDE.

The MAP-21 and FAST provides States the framework to achieve significant reductions in traffic fatalities and serious injuries on all public roads. Furthermore, MAP-21 required States to report on their safety performance in relation to the national safety performance measures in 23 U.S.C. 150(e). The collection of the MIRE FDE information will enhance States ability to:

• Develop quantifiable annual performance targets.

• Develop a strategy for identifying and programming projects and activities that allow the State to meet the performance targets.

• Conduct data analyses supporting the identification and evaluation of proposed countermeasures.

The benefits of this rulemaking can have a significant impact on improving safety on our Nation's roads, because collecting this roadway and traffic data and integrating those data into the safety analysis process will improve an agency's ability to locate problem areas and apply appropriate countermeasures, hence improving safety. More effective safety investments yield more lives saved and injuries avoided per dollar invested.

The benefits of this rule would be the monetized value of the crashes, fatalities, serious injuries, and property damage avoided by the projects identified and implemented using the proposed MIRE FDE minus the forgone monetized value of the crashes, fatalities, serious injuries, and property damage avoided by the projects identified and implemented using the current data and methods used by the States to allocate safety resources. The FHWA did not endeavor to estimate the benefits in this way for the NPRM, and did not receive any comments on how such benefits could be estimated. Therefore, FHWA continued use of a break-even analysis for the final rule cost estimate.

The “MIRE Fundamental Data Elements Cost-Benefit Estimation” 23 dated May 13, 2013, report calculated the benefits by estimating the reduction in fatalities and injuries needed to exceed a 1:1 ratio and a 10:1 ratio of benefits to costs. The 10:1 ratio was added following the NPRM since North Carolina DOT commented that the break-even analysis using a 1:1 or 2:1 ratio was too low to show the benefits of the added data collection efforts. Table 6 summarizes these needed benefits. The report used the 2014 comprehensive cost of a fatality of $9,300,000 and $109,800 for an injury, based on the value of a statistical life.24 The injury costs used in the report reflects the average injury costs based on the national distribution of injuries in the General Estimate System (GES) using a Maximum Abbreviated Injury Scale.

The report estimates that a reduction of 1 fatality and 98 injuries by each State over the 2015-2035 analysis period would be needed to result in a benefit/cost ratio of 1:1. To achieve a benefit/cost ratio of 10:1, each State would need to reduce fatalities by 15 and injuries by 984 over the same analysis period. The experiences to date in States that are already collecting and using roadway data comparable to the MIRE FDE suggests there is a very high likelihood that the benefits of collecting and using the proposed MIRE FDE will outweigh the costs.

For example, one study on the effectiveness of the HSIP found: 25

The magnitude of States' fatal crash reduction was highly associated with the years of available crash data, prioritizing method, and use of roadway inventory data. Moreover, States that prioritized hazardous sites by using more detailed roadway inventory data and the empirical Bayes method had the greatest reductions; all of those States relied heavily on the quality of crash data system.”

For example, this study cites Colorado's safety improvements, noting “Deployment of advanced methods on all projects and acquisition of high-quality data may explain why Colorado outperformed the rest of the country in reduction of fatal crashes.” 26 Illinois was also high on this study's list of States with the highest percentage reduction in fatalities. In a case study of Illinois' use of AASHTO Highway Safety Manual methods, an Illinois DOT official noted that use of these methods “requires additional roadway data, but has improved the sophistication of safety analyses in Illinois resulting in better decisions to allocate limited safety resources.” 27 Another case study of Ohio's adoption of a tool to apply the roadway safety management methods described in the AASHTO Highway Safety Manual concluded, “In Ohio, one of the benefits of applying various HSM screening methods was identifying ways to overcome some of the limitations of existing practices. For example, the previous mainframe methodology typically over-emphasized urban “sites of promise”—locations identified for further investigation and potential countermeasure implementation. These locations were usually in the largest urban areas, often with a high frequency of crashes that were low in severity. Now, several screening methods can be used in the network screening process resulting in greater identification of rural corridors and projects. This identification enables Ohio's safety program to address more factors contributing to fatal and injury crashes across the State, instead of being limited to high-crash locations in urban areas, where crashes often result in minor or no injuries.” 28 Another document quantified these benefits, indicating that the number of fatalities per identified mile is 67 percent higher, the number of serious injuries per mile is 151 percent higher, and the number of total crashes is 105 percent higher with these new methods than with their former methods.29 In summary, all three States experienced benefits to the effectiveness of safety investment decisionmaking through the use of methods that included roadway data akin to the MIRE FDE and crash data in their highway safety analyses.

Between 2008 and 2012, on average 35,157 people died in motor vehicle traffic crashes in the United States, and an estimated 2.23 million people were injured.30 31 The decrease in fatalities needed to achieve a 1:1 cost-benefit ratio would represent a 0.2 percent reduction of annual fatalities using the average 2008-2012 statistics. These statistics and the experiences to date in States already collecting and using roadway data comparable to MIRE FDE as cited above suggest that the benefits of collecting and using the MIRE will far outweigh the costs. For example, if each State and the District of Columbia reduced fatalities by two each because of improved decisionmaking due to enhanced data capabilities, the economic impact (savings) would approach $938,400,000. The FHWA believes that the MIRE FDE, in combination with crash data, will support more cost-effective safety investment decisions and ultimately yield greater reductions in fatalities and serious injuries per dollar invested.

In compliance with the Regulatory Flexibility Act (RFA) (Pub. L. 96-354, 5 U.S.C. 601-612), FHWA has evaluated the effects of these changes on small entities and anticipates that this action will not have a significant economic impact on a substantial number of small entities. The final rule addresses the HSIP. As such, it affects only States, and States are not included in the definition of small entity set forth in 5 U.S.C. 601. Therefore, the RFA does not apply, and I hereby certify that this action would not have a significant economic impact on a substantial number of small entities.

The FHWA has evaluated this final rule for unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48, March 22, 1995). As part of this evaluation, FHWA has determined that this action will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of greater than $128.1 million or more in any one year (2 U.S.C. 1532). The FHWA bases their analysis on the “MIRE Fundamental Data Elements Cost-Benefit Estimation” report.32 The objective of this report was to estimate the potential cost to States in developing a statewide LRS and collecting the MIRE FDE for the purposes of implementing the HSIP on all public roadways. The cost estimates developed as part of this report reflect the additional costs that a State would incur based on what is not being collected through the HPMS, or not already being collected through other efforts. The funds used to establish a data collection system, collect initial data, and maintain annual data collection are reimbursable to the States through the HSIP program.

Further, the definition of “Federal Mandate” in the Unfunded Mandate Reform Act excludes financial assistance of the type in which State, local, or tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. The Federal-aid highway program permits this type of flexibility.

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 dated August 4, 1999. The FHWA has determined that this action would not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA has also determined that this rulemaking would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.

The FHWA has analyzed this 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.

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.

The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.), Federal agencies must obtain approval from the OMB prior to conducting or sponsoring a “collection of information.” The FHWA has OMB approval under “Highway Safety Improvement Programs” (OMB Control No: 2125-0025) to collect the information required by State's annual HSIP reports. The FHWA recently received an extension to the Information Collection Request, with a new expiration date of May 31, 2017,33 in order to reflect the MAP-21 requirements reflected in this final rule.

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.

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 might disproportionately affect children.

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.

The agency 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 and meets the criteria for the categorical exclusion at 23 CFR 771.117(c)(20).

Executive Order 12898 requires that each Federal agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionally high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations. The FHWA has determined that this rule does not raise and environmental justice issues.

A regulation identifier 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.

PBGC's regulations on Allocation of Assets in Single-Employer Plans (29 CFR part 4044) and Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits under terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions in the regulations are also published on PBGC's Web site (http://www.pbgc.gov).

The interest assumptions in Appendix B to Part 4044 are used to value benefits for allocation purposes under ERISA section 4044. PBGC uses the interest assumptions in Appendix B to Part 4022 to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Appendix C to Part 4022 contains interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology. Currently, the rates in Appendices B and C of the benefit payment regulation are the same.

The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Assumptions under the asset allocation regulation are updated quarterly; assumptions under the benefit payments regulation are updated monthly. This final rule updates the benefit payments interest assumptions for April 2016 and updates the asset allocation interest assumptions for the second quarter (April through June) of 2016.

The second quarter 2016 interest assumptions under the allocation regulation will be 2.77 percent for the first 20 years following the valuation date and 2.86 percent thereafter. In comparison with the interest assumptions in effect for the first quarter of 2016, these interest assumptions represent no change in the select period (the period during which the select rate (the initial rate) applies), a decrease of 0.05 percent in the select rate, and a decrease of 0.09 percent in the ultimate rate (the final rate).

The April 2016 interest assumptions under the benefit payments regulation will be 1.00 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for March 2016, these interest assumptions represent a decrease of 0.25 percent in the immediate annuity rate and are otherwise unchanged.

PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.

Because of the need to provide immediate guidance for the valuation and payment of benefits under plans with valuation dates during April 2016, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

In consideration of the foregoing, 29 CFR parts 4022 and 4044 are amended as follows:

The Saint Lawrence Seaway Development Corporation (SLSDC) and the St. Lawrence Seaway Management Corporation (SLSMC) of Canada, under international agreement, jointly publish and presently administer the St. Lawrence Seaway Regulations and Rules (Practices and Procedures in Canada) in their respective jurisdictions. Under agreement with the SLSMC, the SLSDC is amending the joint regulations by updating the Regulations and Rules in various categories. The changes will update the following sections of the Regulations and Rules: Condition of Vessels; Seaway Navigation; and, Information and Reports. These updates are necessary to take account of updated procedures which will enhance the safety of transits through the Seaway. Many of these changes are to clarify existing requirements in the regulations. Where new requirements or regulations are made, an explanation for such a change is provided below. A Notice of Proposed Rulemaking was published in the Federal Register on February 5, 2016 (81 FR 6198). No comments were received. The joint regulations will become effective in Canada on March 21, 2016. For consistency, because these are joint regulations under international agreement, and to avoid confusion among users of the Seaway, the SLSDC finds that there is good cause to make the U.S. version of the amendments effective on the same date.

Regulatory Notices: Privacy Act: 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.

The SLSDC is amending four sections of the Condition of Vessels portion of the joint Seaway regulations. In § 401.10, “Mooring lines”, the two Corporations are permitting vessels not greater than 200 m in overall length to use soft lines instead of wire lines. Over the past 3 years, vessels greater than 150 m in overall length have been permitted to use type approved soft lines on a test basis, with successful results. Based on these same results, the SLSDC is amending § 401.11, “Minimum Requirements—mooring lines and fairleads” to permit the operator of vessels of more than 150 m but not more than 200 m to use either soft or wire lines.

In § 401.13, “Hand lines”, the SLSDC is changing the maximum diameter of hand lines to 18 mm from 17 mm due to the fact that 17 mm lines are no longer available. The change to § 401.17, “Pitch indicators and alarms,” will make a minor administrative change by removing the effective date for the requirement.

In the Seaway Navigation portion of the regulations, the two Corporations are making changes in several sections. Section 401.29, “Maximum draft”, is restructured in order to clarify the requirements for use of an operational Draft Information System. In § 401.37, “Mooring at tie-up walls”, the Seaway Corporations are requiring that crew members handling lines on tie-up walls wear approved personal flotation devices instead of life jackets that can be can be unsafe due to their bulky nature. The SLSDC is changing the requirement in § 401.45, “Emergency procedures”, to make clear that when a vessel is entering the locks too fast in an emergency situation, the vessel will not be required to deploy mooring lines.

In the Information and Reports section, a change to § 401.79, “Advance notice of arrival, vessels requiring inspection” is being made that would require all foreign flagged vessels of 300 GRT or above to submit an electronic Notice of Arrival.

The other changes to the joint regulations are merely editorial or to clarify existing requirements.

This regulation involves a foreign affairs function of the United States and therefore Executive Order 12866 does not apply and evaluation under the Department of Transportation's Regulatory Policies and Procedures is not required.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities. The St. Lawrence Seaway Regulations and Rules primarily relate to commercial users of the Seaway, the vast majority of who are foreign vessel operators. Therefore, any resulting costs will be borne mostly by foreign vessels.

This regulation does not require an environmental impact statement under the National Environmental Policy Act (49 U.S.C. 4321, et seq.) because it is not a major federal action significantly affecting the quality of the human environment.

The Corporation has analyzed this rule under the principles and criteria in Executive Order 13132, dated August 4, 1999, and have determined that this rule does not have sufficient federalism implications to warrant a Federalism Assessment.

The Corporation has analyzed this rule under Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48) and determined that it does not impose unfunded mandates on State, local, and tribal governments and the private sector requiring a written statement of economic and regulatory alternatives.

This regulation has been analyzed under the Paperwork Reduction Act of 1995 and does not contain new or modified information collection requirements subject to the Office of Management and Budget review.

Accordingly, the Saint Lawrence Seaway Development Corporation is amending 33 CFR part 401, Regulations and Rules, as follows:

I. Background

NASA published a final rule in the Federal Register on March 12, 2015, which became effective April 13, 2015. This rule is part of the NASA FAR Supplement regulatory review. As published, the rule contained errors that require the following changes:

• Revise section 1845.107-70(a)(1) to correct the title of the prescribed clause to “Contractor Requests for Government-furnished Property.”

• Revise section 1852.227-70 clause title to “NEW TECHNOLOGY—OTHER THAN A SMALL BUSINESS FIRM OR NONPROFIT ORGANIZATION.”

• Revise section 1852.245-70 clause title to “Contractor Requests for Government-furnished Property.”

• Update the authority citation of several NFS parts.

Accordingly, 48 CFR parts 1802, 1804, 1805, 1806, 1807, 1808, 1811, 1813, 1814, 1815, 1822, 1824, 1825, 1828, 1830, 1831, 1832, 1833, 1834, 1835, 1836, 1839, 1841, 1843, 1844, 1847, 1849, 1850, 1851, and 1852 are amended as follows:

I. Background A. The May 28, 2015, Proposed Rule

The Federal Acquisition Regulation (FAR), which governs the procurement of property and nonpersonal services by the government, is authorized by the Federal Property and Administrative Services Act of 1949, 40 U.S.C. 101 et seq. Pursuant to regulations of the General Services Administration under the authority of 40 U.S.C. 121(c) of the same Act, the FAR provides at 48 CFR 1.301 for agencies to issue their own acquisition regulations to implement or supplement the FAR. HUD's acquisition regulation (HUDAR) is found at 48 CFR chapter 24.

On May 28, 2015, HUD proposed revising certain sections prescribing contract clauses, and certain of the clauses and alternates, in the HUDAR (80 FR 30416). Many of these corrections were administrative or technical in nature, such as correcting references to contract clauses, designating certain forms to be used for specific purposes, and delegating certain functions to specific positions within the agency.

For example, the rule proposed designating the Deputy Chief Procurement Officer as the responsible official with the authority to approve, in writing, justifications for other than full and open procurements for proposed contracts over $13.5 million, but not exceeding $68 million (2406.304(a)(3)); and justifications for Limited Source considerations for proposed Federal Supply Schedule order or Blanket Purchase Agreement (BPA) in the same estimated contract price range (2408.405-6(d)(3)). The rule also proposed designating HUD Assistant Secretaries, or their equivalent, as the Source Selection Authorities for selections made using the tradeoff process (2415.303(a)(1)) and to allow Assistant Secretaries to delegate this function to other departmental officials. There is an exception for procurements of legal services, in which case the General Counsel is designated as the source selection authority (2415.303(a)(2)).

The rule proposed adding requirements concerning information to be collected by the Contracting Officer to determine a contractor's financial responsibility. The rule proposed adding a clause on consent to subcontract, applicable to contracts and task orders exceeding $10,000,000 in value (2452.244-70).

The rule proposed several administrative corrections, including: revising section 2404.7001 to refer to the correct contract clause 2452.204-70, “Preservation of, and Access to, Contract Records (Tangible and Electronically Stored Information (ESI) Formats),” and removing the title and redesignating the clause that is codified at section 2432.705-70 as 2432.705-70(a).

In part 2406, the rule proposed adding section 2406.303 which requires the use of HUD Form 24012 1 for justifications for other than full and open competition.

The rule also proposed to:

Finally, the proposed rule incorporated a new HUDAR matrix under subpart 2452.3. The matrix provides a quick reference for information about each clause or provision, including whether it is required, required when applicable, or optional for the various types of contracts.

This final rule follows publication of the May 28, 2015 proposed rule. HUD received no public comments on the proposed rule. However, HUD is making two related changes to the post-award conference provision and contract clause.

This final rule clarifies a point that was unclear as to incremental funding. In section 2432.703-1, as it currently is codified, the HUDAR regulation states that a fixed-price contract may be funded incrementally if the conditions in paragraph (b)(1)(i) and (b)(1)(ii)(A), (B), and (C) are met, or if the condition in (b)(1)(iii) is met (that the contract uses funds available from 2 or more fiscal years and Congress has otherwise authorized incremental funding). This is actually not quite correct. While it is correct that the conditions in (b)(1)(i) and (ii) and their subordinate paragraphs apply, if the condition in (b)(1)(iii) is applicable, it applies as well; in other words, where (b)(1)(iii) is applicable, it and all the other conditions apply; it is not an alternative to the other clauses. This final rule makes this applicability of (b)(1)(iii) more clear.

In the provision at 2437.110(e)(5), where the proposed rule required the post-award conference clause to be used in all contracts for services, the final rule modifies this provision so that the clause will be used only when the contractor will be required to attend a post-award conference. In other cases, the clause is unnecessary, and this change will reduce burden in those cases. The clause itself, at 2452.237-79, is revised to add an alternate clause for use when the post-award conference will be conducted via telephone or video conferencing. This is consistent with other revisions to provide for the use of electronic communications in this rule (such as the alternate clauses for electronic invoicing) and recognizes the increasing use of such communications. The matrix is also revised to reflect these changes.

Because HUD is now transitioning to the Department of Treasury's Bureau of Financial Services Invoice Processing Platform (IPP) system, clauses 2452.232-70 and 2452.232-71 are revised to add material relevant to the IPP in this final rule. In clause 2452.232-70, which covers invoice submission for fixed price contracts, the first clause listed is for the case where invoicing and payments will not be made through the IPP system, and this clause is similar to the proposed main clause through paragraph (d). Alternate I, as proposed, is for electronic submission of invoices via email in fixed price contracts other than performance-based contracts under which performance based payments will be used. Alternate I in this final rule covers the same subject, and is similar to the proposed rule, where the invoices will be submitted electronically by email but not submitted through the IPP system. New in this final rule is Alternate II, which covers the situation where, in all fixed price solicitations and contracts, invoices are required to be submitted electronically through the IPP system.

A similar change to account for the transition to the IPP system is also made in this final rule to clause 2452.232-71, which covers voucher submission for cost reimbursement, time-and-materials, and labor-hour contracts. As with the previous clause, the main clause and Alternate I deal, respectively with paper submission and electronic submission in cases where the IPP is not being used, and are essentially similar to the same clauses as proposed with the exception that the proviso that it applies where vouchering and payments will not be made through the IPP. This final rule adds Alternate II to cover all cost-reimbursement, time-and-materials, and labor-hour type solicitations and contracts when requiring vouchers to be submitted electronically to the IPP system. These transitional provisions simply update procedures to allow contracting to continue as HUD transitions to the IPP.

The proposed clause 2452.232-74, entitled “Not to Exceed Limitation,” is revised to clarify a particular point. The proposed rule provided that a contract states a specific amount of funding available for the performance of work, and that the government shall not order, nor the contractor be required, to perform work that exceeds the funding limit, and that the government may unilaterally increase the amount of funding obligated through contract modifications until the full contract value has been obligated. The proposed rule did not state what is required in the case where all the contract funding is not yet obligated but a particular funding limit has been reached and a contract modification is needed to provide additional funding. This final rule clarifies that if a necessary modification is not yet in place, or the work has reached the stated funding limit, the contractor must stop performance and may not start again until notified through a contract funding modification that funds are available.

The rule is being made final with no other changes from the proposed rule.

The information collection requirements contained in this final rule are currently approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB control number 2535-0091. The information collection requirements for the HUDAR are currently approved by OMB under control number 2535-0091. In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a currently valid OMB control number.

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531- 1538) (UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. This rule does not impose any federal mandate on any state, local, or tribal government or the private sector within the meaning of UMRA.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This final rule makes technical changes to existing contracting procedures and does not make any major changes that would significantly impact businesses. Accordingly, the undersigned certifies that this rule will not have a significant economic impact on a substantial number of small entities.

This final rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this final rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).

Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This final rule would not have federalism implications and would not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.

For the reasons discussed in the preamble, and pursuant to the authority under 42 U.S.C. 3535(d), HUD amends 48 CFR chapter 24 as follows: