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###### Department of Transportation

###### National Highway Traffic Safety Administration 

          - 23 CFR Part 1345 
          - [Docket No. NHTSA-2005-22879] 
          - RIN 2127-AJ72 

# AGENCY:

National Highway Traffic Safety Administration, Department of Transportation 

      ( print page 69079)    

# ACTION:

Interim final rule; technical amendments. 

# SUMMARY:

This document makes technical amendments to the regulation governing the Occupant Protection Incentive Grant program, 23 CFR part 1345, in light of new legislation extending the program. It updates information to conform to the new time period covered by the program and changes the due date for the submission of applications. 

# DATES:

The technical amendments made in this rule are effective November 14, 2005. Comments on the change in the application due date must be submitted by December 14, 2005. 

# ADDRESSES:

                        Your comments must be written and in English. To ensure that your comments are filed correctly in the Docket, please include the docket number of this document in your comments. Comments should be submitted (preferably in two copies) to: Docket Management, Room PL-401, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590. (Docket hours are Monday-Friday, 10 a.m. to 5 p.m., excluding Federal holidays.) You may also submit your comments to the docket electronically by logging onto the Docket Management System (DMS) Web site at                         *http://dms.dot.gov*. Click on “Help & Information” or “Help/Info” to obtain instructions for filing your comments electronically.                     

# FOR FURTHER INFORMATION CONTACT:

For program issues: Judy Hammond, Injury Control Operations and Resources, NTI-200, telephone (202) 366-2121, fax (202) 366-7394. For legal issues: David Bonelli, Office of Chief Counsel, NCC-113, telephone (202) 366-1834, fax (202) 366-3820, NHTSA, 400 Seventh Street, SW., Washington, DC 20590. 

# SUPPLEMENTARY INFORMATION:

Section 2003 of The Transportation Equity Act for the 21st Century (TEA-21), Public Law 105-178 (1998) established a new occupant protection incentive grant program under Section 405 of Title 23, United States Code. Under this program, States could qualify for incentive grant funds by adopting and implementing effective programs to reduce highway deaths and injuries resulting from individuals riding unrestrained or improperly restrained in motor vehicles. The program, which made grant funds available from fiscal year (FY) 1998 through FY 2003, was designed to stimulate increased safety belt and child safety seat use. Funding was continued through FY 2005 by Congressional appropriations extending TEA-21 grant programs. 

On August 10, 2005, the President signed into law the Safe, Accountable, Flexible, Efficient Transportation Equity Act—A Legacy for Users (SAFETEA-LU), Public Law 109-59. SAFETEA-LU extends the occupant protection incentive grant program from FY 2006 through FY 2009 by amending provisions of 23 U.S.C. 405. The legislation updates a grant condition that previously required States to maintain occupant protection program spending from other sources at or above average levels from the two fiscal years prior to the enactment of TEA-21 (FY 1996-1997). As amended, 23 U.S.C. 405(a)(2) now requires States to maintain spending from other sources at or above average levels from the two fiscal years prior to the enactment of SAFETEA-LU (FY 2003-2004). The legislation increases the amount of funds to which a State is entitled by amending the apportionment percentage and updating the fiscal year under 405(c). Prior to the amendment, a State was entitled to an amount equal to 25 percent of its Section 402 apportionment for FY 1997. A State now is entitled to an amount equal to 100 percent of its section 402 apportionment for FY 2003. The legislation also specifies that grant funds may be transferred among programs authorized under 23 U.S.C. 405, 408, and 410. The previous legislation, TEA-21, authorized the transfer of funds among programs authorized under 23 U.S.C. 405, 410, and 411. 

SAFETEA-LU amends section 405(a)(4) to specify the Federal share to which a State is entitled. While the new program begins in FY 2006, the Federal share is based on the number of fiscal years, beginning after September 30, 2003, that the State has received a grant under the Section 405 program. Thus, counting back to FY 2004, for the first or second year in which a State receives a grant, the Federal share must not exceed 75 percent; for the third or fourth year, the Federal share must not exceed 50 percent; and for the fifth or sixth year, the Federal share must not exceed 25 percent. The determination of the Federal share for the predecessor program under Section 405 remains unchanged. 

This document amends the provisions of 23 CFR part 1345 to reflect these statutory changes and to extend the occupant protection incentive grant program through FY 2009. We are amending § 1345.4(a)(1)(iv) to indicate that States must maintain aggregate expenditures from other sources at or above the average level of expenditures in FY 2003-2004. We are amending § 1345.4(b)(1) to specify that the amount of a grant shall be equal to 100 percent of the amount apportioned to the State under 23 U.S.C. 402 for FY 2003. We are making a number of other changes to § 1345.4(b) to specify the Federal share, based on the number of years that a State participates in the program. We are amending § 1345.6 to indicate that unobligated funds from this grant program may be transferred to programs authorized under 23 U.S.C. 408 and 410. To clarify the application and certification process for State participants under the new legislation, we are adding definitions for “first fiscal year” and “subsequent fiscal years” in § 1345.3. We are also eliminating references to “section 2003 of TEA-21.” 

We are changing the application due date in § 1345.4(a)(4) from August 1 of the applicable fiscal year to February 15. We believe that an earlier application due date is appropriate for the new program because less lead time is necessary for States to submit applications under the extension of this well-established program. The new due date will allow these grant funds to be awarded in time for spring national safety belt mobilization campaigns. We are soliciting comments from the States on this change in the application due date. 

These technical amendments are mostly conforming amendments and will not impose or relax any substantive requirements or burdens on State grant participants. Therefore, we find good cause that notice and opportunity for comment on these amendments (with the exception of the change in application due date) are not necessary under the Administrative Procedures Act. We also find good cause to limit the period for comment on the change in the application due date to 30 days. A limited comment period is necessary to give States adequate time after the effective date of the final rule to submit applications. A limited comment period is also justified because we are soliciting comment on a single issue. 

## Statutory Basis for This Interim Final Rule 

                    The statutory basis for this rule is the Safe, Accountable, Flexible, Efficient Transportation Equity Act—A Legacy for Users (SAFETEA-LU), Public Law 109-59 (2005). SAFETEA-LU extends the occupant protection incentive grant program from FY 2006 through FY 2009 by amending provisions of 23 U.S.C. 405.                           ( print page 69080)    

## Regulatory Analyses and Notices 

### A. Executive Order 12866 and DOT Regulatory Policies and Procedures 

Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. This rulemaking document is not significant under Executive Order 12866 or the Department of Transportation's (DOT) regulatory policies and procedures. (44 FR 11034, February 26, 1979). The effect of this rulemaking action is to make technical amendments to the regulation governing the Occupant Protection Incentive Grant program, in light of new legislation extending the program. It will not impose any additional burden on any person. The agency believes that this impact is minimal and does not warrant the preparation of a regulatory evaluation. 

### B. Environmental Impacts 

We have not conducted an evaluation of the impacts of this interim final rule under the National Environmental Policy Act. This rulemaking action makes technical amendments to the regulation governing the Occupant Protection Incentive Grant program, in light of new legislation extending the program. This rulemaking does not impose any change that would have any environmental impacts. Accordingly, no environmental assessment is required. 

### C. Regulatory Flexibility Act 

                    Pursuant to the Regulatory Flexibility Act, we have considered the impacts of this rulemaking action on small entities (5 U.S.C. 601*et seq.*). I certify that this rulemaking action will not have a significant economic impact upon a substantial number of small entities within the context of the Regulatory Flexibility Act. The interim final rule makes technical amendments to a regulation governing the Occupant Protection Incentive Grant Program. States are the recipients of any funds awarded under this program, and they are not considered to be small entities, as that term is defined in the Regulatory Flexibility Act. Accordingly, we have not prepared a Final Regulatory Flexibility Analysis.                 

### D. Executive Order 13132, Federalism 

E.O. 13132 requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” This interim final rule does not change the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government as specified in E.O. 13132. This interim final rule merely extends the occupant protection incentive grant program through FY 2009, as directed by statute. We are soliciting public comment on one substantive change made in this interim final rule—the change in application due date in Section 1345.4(b)(4) from August 1 of the applicable fiscal year to February 15. 

### E. Paperwork Reduction Act 

                    This interim final rule does not add any new information collection requirements, as that term is defined by the Office of Management and Budget (OMB) in 5 CFR part 1320. The existing requirements have been submitted previously to and approved by OMB, pursuant to the Paperwork Reduction Act (44 U.S.C. 3501,                     *et seq.*). These requirements have been approved under OMB No. 2127-0600, through April 30, 2008.                 

### F. The Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. This action will not result in additional expenditures by state, local or tribal governments or by any members of the private sector. Therefore, the agency has not prepared an economic assessment pursuant to the Unfunded Mandates Reform Act. 

### G. Civil Justice Reform 

This interim final rule does not have any retroactive effect. A petition for reconsideration or other administrative proceedings are not required before parties may file suit in court. 

### H. 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://dms.dot.gov*.                 

# List of Subjects in 23 CFR Part 1345

      - Grant programs—Transportation
      - Highway safety
      - Reporting and recordkeeping requirements

In consideration of the foregoing, 23 CFR Part 1345 is amended to read as follows: 

# PART 1345—INCENTIVE GRANT CRITERIA FOR OCCUPANT PROTECTION PROGRAMS 

1. The authority citation is amended to read as follows: 

Authority:Pub. L. 105-78; Pub. L. 109-59; 23 U.S.C. 405; delegation of authority at 49 CFR 1.50.   

2. Section 1345.1 is revised to read as follows: 

§ 1345.1

This part establishes criteria, in accordance with 23 U.S.C. 405, for awarding incentive grants to States that adopt and implement effective programs to reduce highway deaths and injuries resulting from individuals riding unrestrained or improperly restrained in motor vehicles. 

3. Section 1345.2 is revised to read as follows: 

§ 1345.2 

The purpose of this part is to implement the provisions of 23 U.S.C. 405 and to encourage States to adopt effective occupant protection programs. 

4. Section 1345.3 is amended by removing paragraph designations (a) through (f) and adding the following definitions in alphabetical order to read as follows: 

§ 1345.3 

* * * * *

*First fiscal year*                             means the first fiscal year beginning after September 30, 2003.                         

* * * * *

*Subsequent fiscal years*                             means the second, third, fourth, fifth, or sixth fiscal year beginning after September 30, 2003.                         

* * * * *

5. Section 1345.4 is amended by revising paragraphs (a)(1)(iv), (a)(4), and (b) to read as follows: 

§ 1345.4

(a) * * * 

(1) * * * 

                            (iv) It will maintain its aggregate expenditures from all other sources, except those authorized under Chapter 1 of Title 23 of the United States Code, for its occupant protection programs at                                   ( print page 69081)                                or above the average level of such expenditures in fiscal years 2003 and 2004 (either State or federal fiscal year 2003 and 2004 can be used);                         

* * * * *

(4) To qualify for grant funds in any fiscal year, the application must be received by the agency not later than February 15 of the fiscal year in which the State is applying for funds. 

* * * * *

                            (b)                             *Limitations on grants.*                             A state may receive a grant in a fiscal year subject to the following limitations:                         

(1) Beginning in fiscal year 2006, the amount of a grant under § 1345.5 shall equal up to 100 percent of the State's 23 U.S.C. 402 apportionment for fiscal year 2003, subject to availability of funds. 

(2) In the first and second fiscal years beginning after September 30, 2003 that a State receives a grant, it shall be reimbursed for up to 75 percent of the cost of its occupant protection program adopted pursuant to 23 U.S.C. 405. 

(3) In the third and fourth fiscal years beginning after September 30, 2003 that a State receives a grant, it shall be reimbursed for up to 50 percent of the cost of its occupant protection program adopted pursuant to 23 U.S.C. 405. 

(4) In the fifth and sixth fiscal years beginning after September 30, 2003 that a State receives a grant, it shall be reimbursed for up to 25 percent of the cost of its occupant protection program adopted pursuant to 23 U.S.C. 405. 

6. Section 1345.5 is amended by revising the first sentence in paragraph (d)(4) introductory text; revising the introductory text of paragraph (g), and revising paragraph (g)(1) to read as follows: 

§ 1345.5 

* * * * *

(d) * * * 

(4) To demonstrate compliance with this criterion in the first fiscal year the State receives a grant based on this criterion, the State shall submit a plan to conduct a program that covers each element identified in paragraphs (d)(1) through (d)(3) of this section. * * * 

* * * * *

                            (g)                             *Certifications in subsequent fiscal years:*                             (1) To demonstrate compliance in subsequent fiscal years the State receives a grant based on criteria in paragraphs (a), (b), (c) or (f) of this section, if the State's law, regulation or binding policy directive has not changed, the State, in lieu of resubmitting its law, regulation or binding policy directive as provided in paragraphs (a)(3), (b)(2), (c)(2)(i) or (f)(2) of this section, may submit a statement certifying that there have been no substantive changes in the State's laws, regulations, or binding policy directives.                         

* * * * *

7. Section 1345.6 is amended by revising paragraphs (b) and (c) to read as follows: 

§ 1345.6 

* * * * *

(b) If any amounts authorized for grants under this part for a fiscal year are expected to remain unobligated in that fiscal year, the Administrator may transfer such amounts to the programs authorized under 23 U.S.C. 408 and 23 U.S.C. 410, to ensure to the extent possible that each State receives the maximum incentive funding for which it is eligible. 

(c) If any amounts authorized for grants under 23 U.S.C. 408 and 23 U.S.C. 410 are transferred to the grant program under this part in a fiscal year, the Administrator shall distribute the transferred amounts so that each eligible State receives a proportionate share of these amounts, subject to the conditions specified in § 1345.4. 

Issued on: November 7, 2005. 

Jacqueline Glassman, 

Deputy Administrator. 

[FR Doc. 05-22496 Filed 11-10-05; 8:45 am] 

BILLING CODE 4910-59-P