Questions and Answers

On The National Highway System Designation Act Of 1995

(Last Updated March 15, 1996)

TITLE I -- National Highway System

TITLE II -- Transportation Funding Flexibility

TITLE III -- Miscellaneous Highway Provisions

SECTION 101 - National Highway System Designation

Question 101-1: Will the Federal Highway Administration (FHWA) field offices and the State transportation agencies be provided copies of maps referred to in the Act as the Official Submission, National Highway System (NHS), dated November 13, 1995?

Answer: Yes. Copies are being sent to each FHWA Region and Division. Questions concerning the maps should be directed to Thomas Weeks, Robert Gorman, or William Marley in the Intermodal and Statewide Programs Division, Telephone: 202/366-0233. [12/29/95]

Question 101-2: Do the State and urbanized area maps dated November 13, 1995, include the connections to major intermodal terminals submitted by the States in response to the April 14, 1995, guidelines?

Answer: No. The maps include only those included during the development of the proposed system. They do not include any additional connections submitted by the States. The Act requires the Secretary to submit the additional connections to Congress for approval within 180 days of enactment. Connections to terminals that the FHWA’s Office of Environment and Planning has accepted under the April 14 guidelines, however, are eligible for improvements with NHS funds. [12/29/95]

Question 101-3: The Act authorizes the Secretary to make modifications to the system at the request of a State. Can States now submit modifications to the approved system?

Answer: Yes; however, the FHWA would prefer that States delay requests until implementation guidance is issued. (See next question.) Proposed modifications with supporting documentation must be submitted through the FHWA Division and Regional Offices to the Office of Environment and Planning (HEP-10). Proposals will be evaluated on merit based on the overall objectives of the NHS. Until further guidance is provided, the States should refer to the June 12, 1992, instructions for developing the proposed NHS and the April 14, 1995, guidance for identifying connections to major intermodal terminals in developing supporting information for a proposed modification. [12/29/95]

Question 101-4: Will the FHWA issue guidelines for use by the States in proposing modifications to the NHS?

Answer: Yes. Interim guidance will be issued as soon as possible. [12/29/95]

Question 101-5: Will further submissions by the States be required to comply with the provision which directs the Secretary to submit proposed connections to major intermodal terminals to Congress for approval within 180 days of enactment?

Answer: No. Information provided by the States in response to the April 14, 1995, guidelines will allow the FHWA to fully comply with this requirement. [12/29/95]

Question 101-6: Will the proposed connections to major intermodal terminals automatically become a part of the NHS when they are accepted by the FHWA?

Answer: No. The Act specifically provides for congressional approval of the additional connections to intermodal terminals before they become a part of the system. (Also, see the first question and answer for Section 101.) [12/29/95]

Question 101-7: Are the connections to intermodal terminals which have been accepted by FHWA automatically eligible for NHS funding or are additional approvals required?

Answer: Connections to terminals which have been formally accepted by the FHWA are automatically eligible for NHS funding without further system approval actions. [12/29/95]

Question 101-8: Can FHWA approve additional connections for NHS funding before they are approved by Congress?

Answer: Yes, if the FHWA finds that the connection is consistent with the April 14, 1995, guidelines. [12/29/95]

Question 101-9: What types of improvements to connections to intermodal terminals are eligible for NHS funding?

Answer: The NHS funds may be used for any improvements to connections which meet the basic eligibility requirements of 23 United States Code (U.S.C.) 103(i). [12/29/95]

Question 101-10: Now that feasibility studies have been completed for several of the congressional high-priority corridors, will the FHWA modify the NHS to include high priority corridor segments?

Answer: Yes. The FHWA will work with the affected States to ensure that appropriate corridor segments are included in the system.[12/29/95]

Question 101-11: Is there a mileage limitation for the NHS? If so, what is the limitation?

Answer: Yes. The Act limits the system to 250,000 kilometers (155,000 miles) but authorizes the Secretary to increase or decrease the mileage by plus or minus 15 percent. Therefore, the system is limited to 287,500 kilometers (178,250 miles). [12/29/95]

Question 101-12: Will the States be allocated additional mileage?

Answer: No. Further additions to the system must be justified on a case-by-case basis. [12/29/95]

NHS and Outdoor Advertising

Question 101-13: With approval of the NHS legislation, will there be some routes added to the NHS which haven’t been subject to the control of outdoor advertising in the past?

Answer: Yes. There will probably be some highways which are included in the NHS and which were not formerly on the primary system that are now going to be subject to outdoor advertising control. Identification of highways subject to control under the Highway Beautification Act and the NHS will be the responsibility of the FHWA Division Offices and the State highway agencies. [12/29/95]

Question 101-14: Will the State highway agencies be required to amend their State outdoor advertising control law to include routes added to the NHS which were not on the Federal-aid primary system?

Answer: Existing State legislation will be sufficient from an FHWA standpoint because Subsection 131(t) defined “primary system” and “Federal-aid primary system” for purposes of 23 U.S.C. 131 as the Federal-aid primary system in existence on June 1, 1991, and any highway which is not on such system but which is on the NHS. However, if a State uses an old definition of “primary system” in its State law, that refers to old Section 103(b), or if the State law does not refer to the NHS, the State may need to examine its State law in this respect. [12/29/95]

Question 101-15: If a State, local government, etc. has an on-going amortization program which would impact a route that will be subject to the control of outdoor advertising after approval of the NHS, what will be the FHWA position?

Answer: No lawfully erected outdoor advertising sign located adjacent to a controlled highway on the National Highway System can be required to be removed without the payment of just compensation.

For example, if an existing sign on a route added to the NHS is in the middle of an amortization period where the ordinance declared the sign to be removed in 1992, with a 5-year amortization period, the sign cannot be removed without the payment of just compensation as long as the route remains on the NHS. [6/24/96]

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SECTION 202 - Funding Restoration

Question 202-1: What are Restoration Funds and how can they be used?

Answer: Funds have been reallocated from certain programs to the Restoration Fund category to lessen the impact of the reduction in fiscal year (FY) 1996 authorizations pursuant to Section 1003(c) of the Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991 (Public Law [P.L.] 102 240). Funds provided to States in this category may be used for any project eligible for assistance under Chapter 1 of Title 23, U.S.C. [12/29/95]

Question 202-2: Are funds provided specifically for urbanized areas?

Answer: Yes. A percentage of these funds must be obligated in urbanized areas with a population of 200,000 or more. A formula for developing the percentage has been prescribed by law. [12/29/95] Question 202-3: Can these funds be used for planning purposes?

Answer: Yes, 1 and 1/2 percent of the funds provided to each State in this category may be used for highway planning and research (23 U.S.C. 307(c)). Additionally, 1/2 of 1 percent may be used for metropolitan planning projects (23 U.S.C. 134). [12/29/95]

Question 202-4: If a State elects to use restored funds for planning or research purposes, what administrative requirements will be applicable?

Answer: Restored funds used for planning or research will be administered in accordance with the provisions of 23 Code of Federal Regulations (CFR), Part 420, as is currently the case with the optional use of Minimum Allocation (MA), NHS, and Surface Transportation Program funds for such purposes. [12/29/95]

Question 202-5: Will Restoration Funds be included in the Minimum Allocation (MA) apportionment?

Answer: No, funds in this category will not affect the calculation of the equity accounts. (MA under 23 U.S.C. 157, Donor State Bonus under Section 1013(c), Hold Harmless under Section 1015(a), and 90 percent Payment Adjustment under 1015(b) of P.L. 102-240.) [12/29/95]

Question 202-6: Will obligations of these funds be subject to the obligation ceiling for FY 1996?

Answer: Yes. [12/29/95]

Question 202-7: Will these funds lapse if not obligated for projects?

Answer: The funds available in this category are available to be obligated for eligible projects during the FY in which made available plus an additional 3 Fys. [12/29/95]

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SECTION 204 - State Unobligated Balance Flexibility

Question 204-1: Which categories of funds are available for transfer under this section?

Answer: Any categories that had unobligated balances as of September 30, 1995, and are subject to the obligation limitation are available for the transfer. [12/29/95]

Question 204-2: Does this mean that unobligated ISTEA demonstration project balances may be transferred?

Answer: No. The ISTEA demonstration project funds are not subject to the obligation limitation and therefore are not available for transfer under this provision. [12/29/95]

Question 204-3: Can funds specifically allocated to urbanized areas be transferred?

Answer: Yes, if the metropolitan planning organization (MPO) agrees in writing with the transfer. [12/29/95]

Question 204-4: Could transferring funds under this provision affect a State's future apportionments, specifically equity accounts such as MA?

Answer: No. [12/29/95]

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SECTION 205 - Relief from Mandates

Section 205 (a) - Suspension of Management Systems

Question 205(a)-1: Are certifications and status reports still required?

Answer: Certifications are no longer required. However, in order to prepare the required annual report to Congress, the States will need to provide information on the status of implementation of each system and on their plans for continued development of the systems no later than February 29, 1996. This information will also be provided to assist the Comptroller General in his report. [1/31/96]

Question 205(a)-2: What effect does this provision have on the Congestion Management System requirements in Transportation Management Areas?

Answer: The NHS legislation does not affect the requirement in 23 U.S.C. 134(i)(3) that the planning process in all transportation management areas (TMAs) include a congestion management system (CMS). As with all planning process requirements, compliance with this requirement will be addressed during metropolitan planning process certification reviews for all TMAs.

The legislation also does not affect the requirement in 23 U.S.C. 134(l) that Federal funds may not be programmed in a carbon monoxide and/or ozone nonattainment TMA for any highway project that will result in a significant increase in single occupant vehicle capacity unless the project is based on an approved CMS. Until September 30, 1997, the interim CMS procedures in 23 CFR 450.336(b) may be used to meet this requirement. After this date, such projects will need to be based an approved CMS. [1/31/96]

Question 205(a)-3: If a State opts out of the systems but the State, an MPO, or other agency continues to develop and implement systems on its own, will development and implementation still be eligible for funding?

Answer: Yes. There are no changes in the legislative provisions regarding eligibility of funding. [1/31/96]

Question205(a)-4: What is the impact of this provision on the Safety Management Systems?

Answer: Notwithstanding the NHS provisions to make highway management systems optional, the Department will continue to aggressively promote and support the development of safety management systems in all States. We are showcasing "best practices" as well as providing training to ensure that all States take advantage of safety management system benefits. The FHWA intends to encourage States to continue to implement Safety Management Systems. [1/31/96]

Section 205(b) - Asphalt Pavement Containing Recycled Rubber

Question 205(b)-1: Will States still be required to use crumb rubber in asphalt pavements?

Answer: Just as with other recycled materials, the use of waste tire rubber is encouraged in engineering applications, including asphalt paving, where it is both cost effective and it can be properly engineered. States will not be required to use crumb rubber in asphalt paving. [12/29/95]

Section 205 (c) - Metric Requirements

Question 205(c)-1: What future plans does the FHWA have regarding metric signing?

Answer: The FHWA will not require metric legends on highway signs, but will not object to any State wishing to install them. [12/29/95]

Question 205(c)-2: Can a State use Federal funds for highway signs with metric legends?

Answer: There is a provision under the 1996 Department of Transportation (DOT) Appropriations Act (Section 324) which prohibits the use of Federal funds during FY 1996 for metric legend signs. This is the third consecutive year that Congress established the funding prohibition. [12/29/95]

Question 205(c)-3: What guidance is available for the design, construction, and installation of metric legend signs?

Answer: In an effort to support those States who wish to prepare for an orderly conversion of highway sign legends to metric units, the FHWA has two publications available: the “Standard Alphabets for Highway Signs,” and a draft “Standard Highway Sign” book (the final edition is scheduled for publication in 1997). The FHWA will also make available a metric edition of the Manual on Uniform Traffic Control Devices (MUTCD) in 1998. In revising the MUTCD, the FHWA will be guided by the American Association of State Highway and Transportation Officials’ (AASHTO) publications “Guide to Metric Conversion” and “Traffic Engineering Metric Conversion Factors.” [12/29/95]

Question 205(c)-4: What are the FHWA plans for the period between now and September 30, 2000 regarding the States' use of the metric system in design, advertizing, or preparing plans, specifications, and estimates, or other documents?

Answer: The FHWA will continue to support the States and AASHTO for an orderly transition to the metric system.

All project-related metric conversion activities by any State will be on a voluntary basis until September 30, 2000. The following FHWA policies/requirements will be modified accordingly:

The FHWA internal policies are not affected by the legislation. The following FHWA metric policies will not change:

Question 205(c)-5: What are the FHWA plans after September 30, 2000?

Answer:. After September 30, 2000, all PS&E’s must be in metric units only. [12/29/95]

Section 205(d) - Repeal of National Maximum Speed Limit Compliance Program

Question 205(d)-1: When was the National Maximum Speed Limit (NMSL) repealed?

Answer: With the President signing the NHS Designation Act of 1995 on November 28, 1995, the repeal of the NMSL was effective in each State on December 8, 1995 unless:

If these conditions are met, the repeal of the NMSL will be applicable to that State on the 60th day following the date the State legislature convenes. [12/29/95]

Question 205(d)-2: To whom should the State Chief Executive Officer's request for the later applicability date be directed?

Answer: The new law does not specify the manner in which the State Chief Executive Officer must make the declaration. We presume that the declaration should be made in accordance with State law. The Department would like to be advised of the State's intentions. [12/29/95]

Question 205(d)-3: What happens if a State chooses the later applicability date?

Answer: This option maintains the status quo regarding maximum speed limits in the State until the State legislature convenes and allows the State to consider necessary administrative or legislative action in this area. Sixty (60) days after the legislature reconvenes, the NMSL will no longer be applicable in the State. [12/29/95]

Question 205(d)-4: Does NMSL repeal automatically raise the State's maximum speed limit to the pre-NMSL speed limit?

Answer: No. In most States the maximum limits are set pursuant to a law or administrative requirement and therefore, individual State action is required to change the speed limit. However, in some States the speed limits automatically revert to the limits in effect before the NMSL. [12/29/95]

Question 205(d)-5: Do States have to change their maximum speed limit?

Answer: No, States do not have to change their speed limits and can retain their existing maximum speed limits. However, they should review their respective State laws and regulations to ensure that their speed limits are not predicated on the existence of a NMSL. In at least two States (Minnesota and New Hampshire), the Governor has been granted authority to set maximum speed limits. Administrative or legislative action is needed to change maximum speed limits in the other States. [12/29/95]

Question 205(d)-6: How many States are considering increasing their speed limits?

Answer: At this point, the estimate on how many States will increase their maximum speed limits varies anywhere from nine to 37. This information has been gathered from an informal polling of the FHWA and National Highway Traffic Safety Administration (NHTSA) field offices, the Insurance Institute for Highway Safety poll of Governors' Highway Safety Representatives, and media reports. [12/29/95]

Question 205(d)-7: Why is there such a range in these estimates?

Answer: Different sources within States have been contacted by various groups seeking information about how the repeal of the NMSL will affect each State. Since administrative or legislative action is required in most States, there is no way to accurately predict the outcome. [12/29/95]

Question 205(d)-8: Can a State set different maximum speed limits for passenger cars versus heavy trucks and other commercial vehicles?

Answer: Yes. However, the DOT cautions that differential speed limits increase the speed variance on roadways, which in turns increases the chances of a crash occurring. Lane changes increase as the ranges of vehicle speeds on the roadway increase. [12/29/95]

Question 205(d)-9: Are there any additional Federal funds available to absorb the costs associated with repeal of the NMSL (i.e., replacing speed limit signs, re-marking no-passing zones, conducting engineering studies, etc.)?

Answer: No additional funds are authorized in relation to the repeal of NMSL. Existing Federal-aid funds are available to the States for eligible projects on Federal-aid routes. [12/29/95]

Question 205(d)-10: What action will be taken if a State sets a speed limit greater than the design speed?

Answer: The FHWA will work closely with States and recommend that appropriate engineering criteria be used in setting speed limits. [12/29/95]


Question 205(d)-11: Will States be required to submit NMSL certification or compliance statements normally due on January 1, 1996 for FY 1995?

Answer: With the repeal of the NMSL, States are not required to submit the NMSL certification or compliance statements. [12/29/95]

Question 205(d)-12: Is compliance with the monitoring and reporting procedures associated with the NMSL still required?

Answer: The repeal of the NMSL eliminates any Federal requirements for collecting and monitoring data on speed limits. [12/29/95]

Question 205(d)-13: What will happen with 23 CFR 1260?

Answer: After all States have met the provisions of Section 205(d) and had an opportunity to either change their speed limits or leave them as is, the FHWA will take the necessary steps to delete the provisions in 23 CFR 1260. [12/29/95]

Question 205(d)-14: Will the DOT formally notify the States on the change to the NMSL?

Answer: Since the law has deleted the NMSL program requirements, the only formal notification needed is a technical correction in the Federal Register to delete 23 CFR 1260. [12/29/95]

Question 205(d)-15: Many States have recently installed new speed monitoring equipment. Will the States be encouraged to continue a voluntary speed monitoring program?

Answer: States are strongly encouraged to continue monitoring speed for their own information and in order to submit data that is necessary for the Safety Report specified under Section 347 of P.L. 104-59, the NHS Designation Act if they change their speed limits from NMSL levels. [12/29/95]

Question 205(d)-16: Will there be voluntary submission of speed data for FHWA to do a national report on speed statistics? Speed trend data are now reported in the annual Highway Statistics Report in tables V-137-139. Will this continue?

Answer: The FHWA and NHTSA will continue to monitor speeds on a national basis and may depend on Highway Performance Monitoring System as well as other voluntarily submitted speed data to continue to do this. [12/29/95]

Section 205(e) - Elimination of Penalty for Non-Compliance with Motorcycle Helmets

Question 205(e)-1: Will States without helmet laws be subject to a 3-percent transfer penalty of specified Federal-aid funds in FY 1996?

Answer: No. Section 205(e) of the NHS eliminated the requirement for States to have universal motorcycle helmet use laws or be subject to a transfer penalty. However, the DOT continues to support the use of all types of occupant protection tools and devices to reduce the incidence of serious injury in traffic crashes. [12/29/95]

Question 205(e)-2: Can funds that were transferred to the Section 402 program from those States that did not comply with motorcycle helmet use laws in FY 1995 and prior years be restored to construction programs?

Answer: No. Funds that were transferred to the Section 402 program in FY 1995 because of non-compliance with motorcycle use laws may not be transferred back to the Federal-aid categories from which they were transferred. [12/29/95]

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SECTION 301 - Traffic Monitoring, Management, And Control of NHS

Question 301-1: Weren't traffic management system operating costs previously eligible for Federal-aid reimbursement?

Answer: The ISTEA provided for reimbursement of “start-up costs” associated with traffic management and control systems with NHS funding (23 U.S.C. 103(i)). Provisions in the Act limited this “start-up” period to 2 years. The Congestion Mitigation and Air Quality Improvement (CMAQ) Program guidance included a similar 2 year provision for reimbursement of “start-up” costs under the CMAQ program. Revised CMAQ guidance issued on July 13, 1995, increased the “start-up” cost eligibility period for CMAQ funding to 3 years. The ISTEA also provided for reimbursement of capital and operating costs for traffic monitoring, management, and control facilities and programs with Surface Transportation Program (STP) funding (23 U.S.C. 133(b)(6)), but imposed no limit on the eligibility period. Section 301 of the NHS Act revises the NHS eligibility to make it consistent with the STP criteria by eliminating the 2-year limitation. We will examine the CMAQ eligibility in light of the general Federal-aid eligibility enacted in Section 301. [12/29/95]

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SECTION 302 - Transferability of Apportionments

Question 302-1: Section 302 increases the percentage of Highway Bridge Replacement and Rehabilitation Program (HBRRP) funds that a State can transfer to the NHS or the STP from 40 to 50 percent. Does this revision affect any other provision?

Answer: No, it does not affect any other provision. The transfer of HBRRP funds to the NHS or STP will be accomplished using the same procedures as previously used under the 40-percent provision of the ISTEA. [12/29/95]

Question 302-2: Who has the approval authority for the transfer of HBRRP funds?

Answer: Under the current delegation of authority the Regional Administrators are delegated the authority to approve requests for the transfer of HBRRP funds to the NHS or STP. [12/29/95]

Question 302-3: 23 U.S.C. 144(g)(3) identifies a range of 15 percent to 35 percent of HBRRP funds that must be utilized on bridges not on a Federal-aid system. Do these percentages apply to a State’s original annual apportionment of HBRRP funds or to the amount remaining after a transfer from HBRRP as permitted by Section 302?

Answer: The percentages apply to the State’s original annual apportionments of HBRRP funds. Transfers from HBRRP to NHS or STP do not affect the amounts directed to non-Federal-aid system bridge work. [12/29/95]

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SECTION 304 - Design Criteria for the National Highway System

Question 304-1: When will the FHWA develop design standards to take into account the environmental, scenic, aesthetic, historic, community, and preservation impacts of proposed highway improvements?

Answer: The present standards adopted by the FHWA contain significant flexibility to take into account the stated considerations. Currently, the FHWA has contracted for the development of a guidebook that will show engineers ways to consider "aesthetic, historic and cultural values" when designing highways. This guide is intended to be a tool to assist design engineers applying the green book’s criteria flexibly to better preserve scenery along highways. We will continue to work with AASHTO to develop criteria to further incorporate these factors through their committee process. Comments relating to these efforts, by other interested parties, will be sought and considered in any future work and possible changes to standards. [12/29/95]

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SECTION 305 - Applicability of Transportation Conformity Requirements

Question 305-1: In what ways does the NHS Act impact transportation conformity?

Answer: Section 305 of the NHS Act clarifies that the transportation conformity requirements apply only to areas designated “nonattainment” under Section 107(d) of the Clean Air Act (CAA) (42 U.S.C. 740 (d)), and to areas that have been redesignated as attainment, but are still subject to the maintenance plan requirements of the CAA.

This supports EPA’s existing transportation conformity regulation which was promulgated on November 24, 1993, and eliminates the ambiguity that was the basis of a recent U.S. District Court decision Environmental Defense Fund v. Browner, NO. C-92-1636-TEH (N.D. Cal. October 13, 1994, February 10, 1995) that would require conformity be applied to the attainment areas. The enactment of the NHS would be grounds for dismissal of the lawsuit upon which the above mentioned court decision was based.

A nonattainment area is one that does not meet the national ambient air quality standard for the specific pollutant. This action in effect amends the CAA in such a way that clarifies that conformity does not apply to attainment areas. [12/29/95]

Question 305-2: What additional limitation does Section 305 of the NHS place upon transportation conformity?

Answer: Transportation conformity requirements apply only to those specific transportation-related pollutants for which an area is either designated nonattainment or is subject to a maintenance plan approved under Section 175(a) of the CAA. This provision in the NHS also supports the Environmental Protection Agency's (EPA) existing transportation conformity regulation by further limiting conformity in nonattainment and maintenance areas to those specific pollutants only. [12/29/95]

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SECTION 306(c) - Motorist Call Boxes

Question 306(c)-1: What are the requirements for installing Motorist Call Boxes?

Answer: It is the option of public agency with the responsibility and jurisdiction for the roadway to develop a policy for installation of Motorist Call Boxes. [12/29/95]

Question 306(c)-2: What are the standards for the sponsorship logos on call boxes?

Answer: Currently there are no standards for sponsorship logos for call boxes. Standards will have to be developed and incorporated into the MUTCD through the Federal Register rulemaking process. These standards will allow the local agencies to develop their logo policy. [12/29/95]

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SECTION 309 - Preventive Maintenance

Question 309-1: Can preventive maintenance projects be approved for STP routes?

Answer: Yes, preventive maintenance activities may be approved on any Federal-aid highway as defined in 23 U.S.C. [12/29/95]

Question 309-2: Will there be any changes to the current requirements for preventive maintenance projects as defined in the May 21, 1992; July 27, 1992; June 14, 1993; and October 12, 1993 memorandums?

Answer: We are not proposing any changes at this time. These various memoranda may be consolidated at some time in the future but the types of work that are considered eligible and the requirements for safety considerations remain in effect. [12/29/95]

Question 309-3: Are there any other changes in preventive maintenance being proposed?

Answer: No, the only change made by the current legislation was to increase the flexibility provided to a State by allowing cost-effectiveness to be demonstrated by other than the State's pavement management system and to allow preventive maintenance activities on all Federal-aid highways, not just the Interstate. [12/29/95]

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SECTION 311 - Eligibility of Bond and Other Debt Instrument Financing for Reimbursement as Construction Expenses

Question 311-1: Are bonds and other debt instruments eligible for reimbursement as construction expenses?

Answer: States can be reimbursed with Federal-aid funds for bond principal, interest costs, issuance costs, and insurance on Title 23 projects. To date, Federal-aid funds have been limited to bond retirement costs on certain categories of projects and interest costs were only eligible on some Interstate projects. [12/29/95]

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SECTION 313 - Toll Roads

Question 313-1: The ISTEA amendments to 23 U.S.C. 129, resulting in significant changes to FHWA policy regarding toll highways, were implemented by two memoranda from Headquarters. How have the provisions of the NHS bill modified that guidance?

Answer: For the most part, that guidance continues to be valid except for the following:

  1. Federal share is now a uniform 80 percent for toll facilities.
  2. Loans can now be made to non-toll facilities with dedicated revenue sources.
  3. A loan can be made for any phase of a project including engineering and right-of-way work.
  4. A loan is not required to be subordinated to any other debt financing.
  5. Interest rates on loans may be at or below market rates.
  6. Loan repayments can be used for various credit enhancements.

We plan to issue new implementing guidance that will incorporate the previous guidance memoranda, including appropriate changes as a result of the NHS bill, into one consolidated document. [12/29/95]

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SECTION 314 - Scenic Byways

Question 314-1: How are scenic byways on Interstate and primary highways impacted by this section?

Answer: This provision allows States to exclude from scenic byway designation any segment of the highway that is inconsistent with the State’s criteria for designation. The exclusion must have a reasonable basis and not be done solely to evade Federal outdoor advertising requirements. [12/29/95]

Question 314-2: Can the State place scenic byway identification signs within excluded areas and show a continuous scenic byway on its highway map?

Answer: Yes. The amendment also clarifies that solely for purposes of system continuity, trail blazer signs and mapping of excluded segments are not prohibited. [12/29/95]

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SECTION 318 - Non-Federal Share for Certain Toll Bridge Projects

Question 318-1: Does this provision apply to all toll bridges that are under the jurisdiction of a toll agency that meets the requirements of Section 144(l)?

Answer: No, this provision applies to the Golden Gate Bridge only. Although the section is generic as written, it was intended to only apply to the Golden Gate Bridge and no other structures. [12/29/95]

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SECTION 319 - Congestion Mitigation and Air Quality Improvement Program

Question 319-1: How does the NHS Designation Act affect my State’s apportionment of CMAQ funds?

Answer: The NHS Act freezes the distribution factors used to apportion funds each State received under the CMAQ program to Federal FY 1994 (October 1, 1993 --September 30, 1994) levels for the remainder of ISTEA. Areas redesignated to attainment status before FY 1994 would not be included in the apportionment factors. Changes to nonattainment classifications (from Marginal to Moderate for example) occurring during FY 1994 would affect the distribution; any changes occurring before or after FY 1994 will have no effect on the distribution of CMAQ funds for FY 1996 or FY 1997. [12/29/95]

Question 319-2: Are traffic monitoring, management and control facilities still eligible for CMAQ funding?

Answer: Yes, the NHS Act specifically permits CMAQ funding for the establishment and operation of traffic monitoring, management, and control facilities or programs provided that the Secretary of Transportation after consultation with the Administrator of EPA finds that the program or facility is likely to contribute to the attainment of a national ambient air quality standard. If at some point the FHWA, in consultation with EPA, determines the operation of these new improvements are no longer contributing to continuing improvements in air quality, further operating costs will become ineligible for CMAQ funds. We expect to reissue the CMAQ Program guidance with further clarification on the issue in the near future. [12/29/95]

Question 319-3: Are there any other changes in the NHS which impact CMAQ project funding?

Answer: Yes, there are two changes: (1) States now have the ability to receive credit against their share of project costs through private donations of materials or services; and (2) The mandatory 80 percent Federal share for bicycle and pedestrian projects has been lifted and bicycle and pedestrian projects will now be treated in the same manner as other Federal-aid highway projects. [12/29/95]

Question 319-4: Will new guidance be issued to replace the revised CMAQ guidance of July 13, 1995?

Answer: An update to the revised guidance with any changes related to the NHS Act will be issued as soon as practicable. [12/29/95]

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SECTION 321 - Utilization of the Private Sector for Surveying and Mapping Services

Question 321-1: Section 321 requires the FHWA to take an active role in encouraging use of private sector sources for mapping and surveying sources. What steps does the FHWA intend to pursue to achieve this end?

Answer: The FHWA is initially planning to issue policy guidance through publication in the Federal Register, and full opportunity to provide comments will be given to all interested parties. [12/29/95]

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SECTION 322 - Donations of Funds, Materials, or Services for Federally Assisted Projects

Question 322-1: How will States receive matching credit for materials or services donated to Federally assisted projects?

Answer: This provision allows private funds, materials, or services to be donated to a specific Federal-aid project and permits the State to apply the value to the State’s matching share. To date, States could only receive credit for State and local funds or for donations of private property incorporated into a Federal project. [12/29/95]

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SECTION 327 - Use of Recycled Paving Material

Question 327-1: When will the required research for development of performance grading for crumb rubber modifier (CRM) binders be initiated?

Answer: The FHWA awarded a research contract in September 1994 to Oregon State University-Corvallis, Oregon (OSU). This is approximately a $2.5 million pooled-fund effort with 33 States participating. This research involves design, construction, and evaluation of asphalt pavement containing recycled rubber using different mixtures, plant configurations, and environmental conditions for both recyclability and performance. This research project is also looking at what is necessary to incorporate CRM binders into the Strategic Highway Research Program performance grade system. This work is now well underway.

Western Research Institute-Laramie, Wyoming (WRI), is also conducting research for the FHWA under Section 6016 of ISTEA on the fundamental properties of asphalt. As a part of this research, WRI is looking at the interaction between asphalt and CRM. Results from this work are being incorporated into the OSU project. We do not anticipate the need for additional research in this area.

Industry and agency representation are involved in both of the research contracts now underway. [12/29/95]

Question 327-2: When will the grant funds be made available to the States?

Answer: No specific funding was provided for this section. We will review our contract research program for possible grants to States. [12/29/95]

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SECTION 328 - Roadside Barrier Technology

Question 328-1: What impact will the revisions to ISTEA Section 1058 have on the State DOTs ?

Answer: Previously, each State was required to certify each calendar year that at least 2.5 percent of all PERMANENT MEDIAN BARRIERS let to contract on Federal-aid projects was innovative. As amended, Section 1058 now applies to all PERMANENT or TEMPORARY CRASHWORTHY LONGITUDINAL BARRIERS other than a guardrail or guiderail. This will significantly expand the quantity of barriers included under this section. [12/29/95]

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SECTION 332 - High Priority Corridors

Question 332-1: This section modifies several high priority corridors initially identified in Section 1105(c) of the ISTEA and adds several new high priority corridors. When will FHWA make necessary changes to the NHS to incorporate the revised and new high priority corridors?

Answer: Most of the new high priority corridors are already included in the NHS, and in these cases, no further changes are needed. The FHWA will work with the affected States to make necessary changes to incorporate the high priority corridors in the NHS. [12/29/95]

Question 332-2: What is the significance of a route being identified as high priority corridor?

Answer: Under current law, high priority corridors are eligible for discretionary funds for feasibility and design studies under Section 1105(h) of the ISTEA. Other NHS routes are not eligible for these discretionary funds. Otherwise, high priority corridors have equal status to other NHS routes. [12/29/95]

Question 332-3: This section directs the Secretary, in cooperation with the States of Virginia and West Virginia, to conduct a feasibility study using funds available under Section 1105(h) of the ISTEA to determine the feasibility of establishing a route for the East-West Transamerica Corridor in these States. When will FHWA initiate this study?

Answer: In accordance with long established practices for conducting such studies, the FHWA will expect the two States to take the lead in undertaking this study. The FHWA will cooperate with the States in establishing the scope of the study and in defining the study methodology and will participate in all technical and policy decisions during the conduct of the study. [12/29/95]

Question 332-4: Where are the corridors that the Act designated as future parts of the Interstate System?

Answer: (1) The Corridor 5 ("I-73/74 North-South Corridor") segments extend from Charleston, South Carolina, following two alignments, to Portsmouth, Ohio; (2) Corridor 9 ("U.S. 220 and the Appalachian Thruway Corridor") extends from Bedford, Pennsylvania, north to the vicinity of Corning, New York; (3) Corridor 18 extends from the Lower Rio Grande Valley north to Houston, Texas, and Indianapolis, Indiana; and (4) Corridor 20 ("U.S. 59 Corridor") extends from Laredo, Texas, through Houston to the vicinity of Texarkana, Texas. [12/29/95]

Question 332-5: Are the designated future Interstates the same as those designated under 23 U.S.C. 139(b)?

Answer: No, the above corridors have been designated as future Interstates by the Act rather than through an administrative process. [12/29/95]

Question 332-6: What procedures will be followed in designating these future Interstates as part of the Interstate System? Are they the same as designations under 23 U.S.C. 139(a)?

Answer: The procedures for designation under Section 332 of the Act will be similar to those under Section 139(a). The requirement that segments of these corridors meet Interstate geometric and construction standards is the same; however, any segment of these corridors designated as future Interstates need only connect at one end to an open-to-traffic portion of the Interstate System. States will be required to submit a formal request to the FHWA with appropriate documentation to show that the two conditions in the Act have been met before the Federal Highway Administrator approves the Interstate designation. Any design exceptions will also have to be approved by the Administrator. [12/29/95]

Question 332-7: How will Interstate route numbers be determined?

Answer: Except for the legislatively mandated use of "I 99" on Corridor 9, proposed Interstate route numbers must continue to be submitted by each State involved for approval by the AASHTO and concurrence by the Administrator. [12/29/95]

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SECTION 338 - Intelligent Transportation Systems

Section 338(a) - Improved Collaboration in Intelligent Transportation Systems Research and Development

Question 338(a)-1: In what way will collaboration on research and development be improved?

Answer: This section amends Section 6054 of the Intelligent Transportation Systems (ITS) Act, which addresses strategic planning and implementation to improve collaboration in ITS research and development.

Collaborative research and development refers to research done on a cost shared basis with a variety of entities, including State and local governments, colleges and universities, corporations, institutions, partnerships, sole proprietorships, and trade associations incorporated or established under State law. Usually, the Federal share payable for such research should not exceed 50 percent unless approved by the Secretary. The research partner’s share may include direct costs incurred, including but not limited to, costs for personnel, travel, and hardware development.

This provision strengthens the Department’s ability to enter cooperative research, development, and testing arrangements. In addition to traditional contracts and grants, the Department would have the ability to use Cooperative Research And Development Agreements for ITS projects. [12/29/95]

Section 338(b) - Time Limit for Obligation of Funds for Intelligent Transportation Systems Projects

Question 338(b)-1: Are there any changes to the amount of time allowed to obligate funds for the ITS program?

Answer: Yes. This section requires that ITS funds be obligated by the last day of the FY following the FY for which they were made available. ITS funds that were made available before enactment of the NHS Designation Act remain available until expended. [12/29/95]

Section 338(c) - Conforming Amendments

Question 338(c)-1: Has the name "Intelligent Vehicle Highway Systems” or IVHS been updated?

Answer: Yes. This section simply updates the name of the program from Intelligent Vehicle Highway Systems or IVHS to Intelligent Transportation Systems or ITS. The change will be made in several places including ISTEA, the law making appropriations for the USDOT, the Hazardous Materials Transportation Authorization Act of 1994, and in Section 5316(d) of the U.S. Code under University Research Centers. [12/29/95]

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SECTION 339 - Eligibility

Section 339(a) - Pennsylvania Turnpike and Interstate Route 95

Question 339(a)-1: Will this section result in Pennsylvania receiving any additional Interstate funds for completion of this interchange?

Answer: As provided by the ISTEA, the final apportionment of Interstate Construction funds was made in October 1994. The State may use its present unobligated balance of Interstate Construction funds for any of the interchange elements made eligible for this section but additional Interstate Construction funds will not be available under present law. There is a possibility that present balances of Interstate Discretionary funds not yet allocated to the States may be available for the project. However, once the present balance is allocated, no additional Interstate Discretionary funds are anticipated to be available. [12/29/95]

Question 339(a)-2: What is the Federal share of the interchange elements covered by the section which are funded by NHS or other non-Interstate Federal-aid funds?

Answer: The Federal share is 90 percent regardless of the class of Federal-aid funds. [12/29/95]

Section 339(b) - Type II Noise Barriers

Question 339(b)-1: How has the eligibility for construction of Type II (retrofit) noise barriers changed?

Answer: Federal participation in the construction of retrofit noise barriers has been restricted. Federal funds may only be used to construct (1) "grandfathered" Type II barriers, i.e., those that were approved before the date of enactment of the NHS Act or (2) Type II barriers where the adjacent development existed before construction of the existing highway.

It should be noted that the development and implementation of Type II projects remain the option of a State highway agency. The FHWA intends to implement formal rulemaking procedures to make 23 CFR, Part 772, Procedures for Abatement of Highway Traffic Noise and Construction Noise, consistent with the NHS legislation. [12/29/95]

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SECTION 347 - Safety Report

Question 347-1: Are States still required to submit speed monitoring reports?

Answer: No. However, the NHS Act does require the Secretary of Transportation to prepare and submit to Congress a study of the costs of deaths and injuries resulting from motor vehicle crashes in States which raise their speed limits and the benefits associated with the repeal of NMSL. Congress directed that this report be done in cooperation with any State that raises its speed limit above the former NMSL. [12/29/95]

Question 347-2: What types of data will States be required to submit for this Safety Report?

Answer: The NHTSA, in cooperation with FHWA, will take the lead for DOT in compiling this report which will focus on States that raise their maximum speed limits after repeal of the NMSL. Data on the number and severity of speed-related crashes, fatalities and injuries, as well as associated costs will be requested. At a minimum, these data will be requested to establish a baseline on pre and post NMSL time periods. [12/29/95]

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SECTION 348 - Moratorium on Certain Emission Testing Requirements

Question 348-1: How will the moratorium affect transportation programs?

Answer: Transportation programs operating with an existing FHWA/Federal Transit Administration conformity determination will not be affected, since the conformity determination remains in effect. The assessment of transportation conformity involves an accounting with the State’s emissions budget which is modified only through changes to a control strategy State Implementation Plan (SIP). Revised inspection and maintenance (I/M) plans are submitted as SIPs, however; these revisions do not carry budgets and are not considered control strategy SIPs. Should the moratorium prompt a change in a State’s approach to I/M, these modifications would need to be reflected in a subsequent, revised control strategy SIP, and the emissions budget within such a SIP, before any impact on ensuing transportation programs could be evaluated. [12/29/95]

Question 348-2: What are the transportation conformity implications of modifications to I/M programs or the suspension or delay of such programs?

Answer: There are no direct transportation conformity implications from delays or changes in I/M program implementation until a revised control strategy SIP is submitted to EPA which accounts for these changes through a new emissions budget. When conformity of transportation plans and programs must be demonstrated to a submitted but unapproved control strategy SIP, implementation of control measures such as I/M may be assumed according to the commitment schedule included in the control strategy SIP.

Transportation conformity determinations are not required to reflect changes in I/M programs until the revised control strategy SIP has been submitted. The I/M SIP is not considered a control strategy SIP for transportation conformity. If a revised control strategy SIP is submitted which reflects changes in I/M programs, the next conformity determination must account for the new, revised motor vehicle emissions budget and assume implementation of control measures in the latest SIP revision. Existing conformity determinations are not affected. [12/29/95]

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SECTION 350 - State Infrastructure Bank Pilot Program

Question 350-1: What is a State Infrastructure Bank (SIB)?

Answer: A SIB is an infrastructure investment fund that can be created at the State or regional (multi-State) level to make loans and provide financial assistance to surface transportation projects. SIBs are designed to complement the regular Federal-aid program. [12/29/95]

Question 350-2: Who will receive the loans or other financial assistance?

Answer: SIBs can make loans or provide other assistance to public and private entities for Federal-aid-eligible highway and transit projects. For the initial use of SIB funds, Federal-aid highway funds can only be used for highway construction (as defined in Title 23), and transit funds can only be used for transit capital projects. [12/29/95]

Question 350-3: How will the pilot States be selected?

Answer: The legislation only specifies that the Secretary of Transportation can enter into agreements with a maximum of 10 States. The USDOT will establish procedures to solicit candidates for the Pilot Program and determine which States will make the best pilots. [12/29/95]

Question 350-4: What activities will be eligible for SIB assistance?

Answer: In addition to making loans, SIBs can enhance credit, serve as capital reserves, subsidize interest rates, ensure letters of credit, finance purchase and lease agreements, provide bond or other debt financing security, and provide other forms of assistance that leverage funds. However, Federal funds contributed to the SIB cannot be used for traditional "grants." [12/29/95]

Question 350-5: What funds can States put into SIBs?

Answer: There are no new Federal funds available to capitalize a SIB. Pilot States can deposit a maximum of 10 percent of most of their FY 1996 and FY 1997 Title 23 Federal-aid highway apportionments (excluding CMAQ funds and ISTEA demonstration project funds). STP or other funds which are sub-allocated to urbanized areas (over 200,000 population) can only be deposited into a SIB highway account with approval of the MPO for the area. Up to 10 percent of Federal transit funds for FY 1996 and FY 1997 of sections 3, 9, and 18 can also be deposited into a SIB. [12/29/95]

Question 350-6: Will any funds be available to administer the SIB Program?

Answer: At this time, no new funds will be available to administer the SIB Program. However, up to 2 percent of the Federal funds deposited can be used to administer SIBs. [12/29/95]

Question 350-7: How do SIB deposits count against the State's obligation ceiling?

Answer: SIB deposits count against the State's obligation ceiling when the source of the Federal-aid funds contributed ordinarily count against the obligation ceiling. Thus, NHS, STP, IM, Bridge, Interstate Reimbursement Segments, Hold Harmless, 90% Payments Adjustments, and Donor State Bonus apportionments would count against the obligation ceiling. SIB deposits do not count against the State's obligation ceiling when the source of Federal-aid funds contributed do not count against the obligation ceiling. Thus, Minimum Allocation apportionments contributed to a SIB would not count against the obligation ceiling. [12/29/95]

Question 350-8: Will the SIBs have any matching requirements?

Answer: When a State obligates Federal-aid highway apportionments for a SIB, it must match 25 percent of the Federal contribution (which effectively equals 20% of the total deposit). The non-Federal share can be reduced if the State has a lower non-Federal share for most of its other programs under Section 120(b) of Title 23. [12/29/95]

Question 350-9: Will there be any other requirements on the SIB?

Answer: Yes, there are a number of other Federal requirements. These include the requirement to maintain an investment grade rating and report annually to the USDOT. There are a number of other requirements on investment income and loan repayments. In addition, the Secretary cannot pay out Federal cash more quickly to SIBs than historical pay-out rates. The USDOT will also issue guidelines to ensure that other Federal requirements are met. These requirements only apply to the funds that capitalize the SIB and the initial activity for which the funds are used. [12/29/95]

Question350-10: Will the SIB Pilot Program be permanent or temporary?

Answer: The legislation provides for a test. However, once funds have been deposited into a SIB, they do not expire. By March 1, 1997, the Secretary of Transportation will report to Congress on the SIB Pilot Program results for consideration during the ISTEA reauthorization process. [12/29/95]

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SECTION 351 - Railroad-Highway Grade Crossing Safety

Section 351(a) - Intelligent Transportation Systems

Question 351(a)-1: Does the NHS legislation promote railroad-highway grade crossing safety through the ITS program?

Answer: Yes. This section requires the Secretary to ensure that the ITS program addresses, in a comprehensive and coordinated manner, the use of ITS technologies to promote safety at railroad-highway grade crossings. Specifically, the Secretary shall ensure that two or more operational tests funded by the ITS program are designed to promote highway traffic safety and railroad safety. The ITS program already has projects underway that reflect this requirement. [12/29/95]

Question 351(b)-1: Will the provisions of Section 351 materially affect the way the FHWA is administering the current grade crossing safety program?

Answer: No. Section 351 generally summarizes into an official statement of DOT policy those actions that are already being taken to implement the rail-highway crossings program. [12/29/95]

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SECTION 353 - Traffic Control

Section 353(a) - Signs 
Section 353(b) - Stripe 
Question 353(a)&(b)-1: How does Section 353 (a) and (b) change the current law?

Answer: The current law indicates that the Secretary of Transportation shall develop standards for traffic control devices on all public streets and highways. The standard is the MUTCD. This section makes these changes in compliance with the MUTCD. [12/29/95]

Question 353(a)&(b)-2: What effect does this section have on the MUTCD?

Answer: The above provisions of the law makes these items in compliance with the MUTCD. In the next edition of the MUTCD FHWA will include these changes in Sections 2B-4 "Stop Sign" and 3B-1 "Center Lines." [12/29/95]

Question 353(a)&(b)-3: Can other jurisdictions use the red, white, and blue pavement markings?

Answer: No. The legislation is very specific and only allows these pavement markings to be used on the Main Street of Bristol, Rhode Island. [12/29/95]

Question 353(a)&(b)-4: Can any jurisdictions use the "Right Turn on Red Without Stopping" sign?

Answer: No. The legislation is very specific and only allows this sign to be used in the State of Oregon. [12/29/95]

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SECTION 358 - Safety Research Initiatives

Section 358(b) - Work Zone Safety

Question 358(b)-1: Six methods were identified for increasing safety at highway construction sites. What are the FHWA plans for implementing these methods?

Answer: The Office of Highway Safety in cooperation with other offices of the FHWA is already working on several of the identified methods and plans to ultimately advance all of them. Those methods we are already pursuing or completed an action on are: (1) conduct work zone (WZ) safety conferences, (2) establish a WZ safety information clearing house, (3) conduct a national WZ safety promotional campaign, and (5) develop WZ training programs. [12/29/95]

Question 358(b)-2: What is the status of the four work zone safety improvement methods the FHWA is currently pursuing?

Answer: Relative to item (1), the FHWA along with AASHTO, the American Road and Transportation Builders Association, and the American Traffic Safety Services Association co-sponsored and funded a national WZ safety conference last December with participation by a broad representation of national organizations and groups that have a stake in improving WZ safety.

Preliminary steps have been taken for item (2) to focus on the need and desirability of developing a national clearing house. A task force is being organized to define the desirable characteristics and selection criteria for a WZ safety information clearing house. This information will be useful in developing the necessary contract documents for establishing the clearing house.

A survey of the State DOTs was completed by AASHTO per FHWA's request, to identify the interest and potential fiscal support for developing WZ public education and outreach safety campaign material which is item (3). The survey indicated strong support for this effort. Consequently the FHWA will contract, probably through a pooled fund effort, for development of safety campaign material that can be used by all the States as they desire for their statewide campaigns.

Finally for item (5), the FHWA has recently updated its basic WZ design training course as well as developed a new training course for work zone inspectors. Also, another course is under development through a contract with a consulting engineering. [12/29/95]

Section 358(c) - Radio and Microwave Technology for Motor Vehicle Safety Warning System

Question 358(c)-1: What does the study regarding radio and microwave technology for a motor vehicle safety warning system require?

Answer: This section requires that the Secretary, in consultation with the Federal Communications Commission and the National Telecommunications and Information Administration, conduct a study to develop and evaluate radio and microwave technology for a motor vehicle safety warning system in furtherance of safety in all types of motor vehicles. The equipment developed under the study shall be directed toward, but not limited to, advance warning to operators of all types of motor vehicles of the following: