Comments of the South Dakota Department of Transportation

to the

Federal Highway Administration

Docket No. FHWA-2008-0009,

"Highway Safety Improvement Program"

#### June 20, 2008

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# Introduction and Overview

The South Dakota Department of Transportation (SDDOT) respectfully
submits these comments in response to the notice of proposed rulemaking
issued by the Federal Highway Administration (FHWA) in this docket,
published at 73 Federal Register 22092 *et seq.* (April 24, 2008).

In the notice, FHWA has proposed various changes to 23 CFR part 924 to
incorporate changes to the Highway Safety Improvement Program (HSIP)
that resulted from the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) and to
reflect changes in the overall program that have evolved since the rules
were originally written.

SDDOT is concerned by the language in the proposed rules that grant FHWA
authority to approve the state's HSIP processes for the planning,
implementation, and evaluation of the SHSP, HSIP, and highway safety
improvement projects, as well as approving the process for analyzing
available safety data.

The Federal statute for the HSIP, 23 USC 148, does not require FHWA's
approval of the processes that are developed by the states. Indeed, FHWA
approval is conspicuous by its absence from the statute. A fair reading
of the statute can only lead to the conclusion that FHWA approvals of
plans under this section were not contemplated by the Congress.
Requiring approval of the processes suggests a stronger FHWA role in the
project selection process. FHWA will continue to have final approval for
any projects selected.

Specifically, a "State strategic highway safety plan" is defined as a
plan "developed by the State Transportation department" 23 USC
148(a)(6). That plan is to be developed after "consultation" with
various parties and is specifically subject to being "approved by the
Governor of the State or a responsible state agency" 23 USC
148(a)(6)(G). Congress used the word approval in describing the
Governor's role. If it had intended FHWA to have an approval authority,
it would have said so

Further reinforcing this view of the statutory schema, 23 USC 148((g)
requires a State to file reports with the Secretary (FHWA) on the
projects pursued by the State pursuant to the plan "approved" by the
Governor or other state official. This is hardly an "approval" role for
FHWA. The overall statutory scheme is one of state developed plans and
FHWA monitoring.

Even if FHWA should, contrary to the statutory scheme, conclude that it
has approval authority, we believe it should not pursue that authority
at this time and allow experience under the program to develop based on
a consultative relationship with States. In the unlikely event that a
consultative arrangement would not prove satisfactory, FHWA could
consider a proposed rulemaking to assert approval authority at such
later time.

In short, SDDOT considers aspects of the proposed rule to be
inconsistent with the statute and not sufficiently deferential to
states. In addition, the proposed rules would require that the processes
developed by the state also be done cooperatively with the officials of
the various units of local governments which is contrary to SAFETEA-LU
which requires consultation.

[Recommended Modifications]{.underline}

[Proposed Section 924.7 (b)]{.underline}. The proposed rule, as worded,
requires the FHWA approval of the state's processes for the planning,
implementation, and evaluation of the SHSP, HSIP, and highway safety
improvement programs. To be consistent with Proposed Section 924.13
(a)(2) which requires the evaluation of the SHSP to be done in
"consultation with the FHWA", we would support wording that indicates
that the processes would be developed in consultation with the FHWA, but
with no FHWA "approval". All references to FHWA approval should be
deleted form the rule before adoption.

We also strongly recommend changing the requirement that the processes
be developed "cooperatively" with officials of the various units of
local governments so that, instead, processes are developed in
"consultation" with the local officials. "Consultation" is the term used
in the language in the statute when describing the communication between
states and stakeholders, including local officials 23 USC 148(a)(6)(A).

[Proposed Section 924.9 (a)(3)(ii)(M).]{.underline} The proposed rule
requires the FHWA approval of the state's process for analyzing
available safety data. We support wording that would delete an FHWA
approval role and, instead, have states develop the processes in
consultation with the FHWA.

Conclusion

For the reasons stated above, SDDOT respectfully recommends that FHWA
modify the proposed rule as recommended.

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