[Federal Register Volume 87, Number 178 (Thursday, September 15, 2022)]
[Proposed Rules]
[Pages 56756-56846]
[FR Doc No: 2022-18995]

Vol. 87

Thursday,

No. 178

September 15, 2022

Part II

Department of Transportation

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National Highway Traffic Safety Administration

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23 CFR Part 1300

Uniform Procedures for State Highway Safety Grant Programs; Proposed
Rule

Federal Register / Vol. 87, No. 178 / Thursday, September 15, 2022 /
Proposed Rules

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

23 CFR Part 1300

[Docket No. NHTSA-2022-0036]
RIN 2127-AM45

Uniform Procedures for State Highway Safety Grant Programs

AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).

ACTION: Notice of proposed rulemaking.

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SUMMARY: This action proposes revised uniform procedures implementing
State highway safety grant programs, as a result of enactment of the
Infrastructure Investment and Jobs Act (IIJA, also referred to as the
Bipartisan Infrastructure Law or BIL). It also reorganizes, streamlines
and updates some grant requirements. The agency requests comments on
the proposed rule.

DATES: Comments in response to this notice of proposed rulemaking must
be submitted by October 31, 2022. In compliance with the Paperwork
Reduction Act, NHTSA is also seeking comment on a new information
collection. See the Paperwork Reduction Act section under Regulatory
Analyses and Notices below. Comments concerning the new information
collection requirements are due October 31, 2022 to NHTSA and to the
Office of Management and Budget (OMB) at the address listed in the
ADDRESSES section.

ADDRESSES: You may submit written comments, identified by docket number
or RIN, by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
     Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, Room W12-140, Washington, DC
20590-0001.
     Hand Delivery or Courier: 1200 New Jersey Avenue SE, West
Building, Ground Floor, Room W12-140, between 9 a.m. and 5 p.m. E.T.,
Monday through Friday, except Federal holidays. To be sure someone is
there to help you, please call<PHONE_NUMBER> before coming.
    Comments on the proposed information collection requirements should
be submitted to: Office of Management and Budget at www.reginfo.gov/public/do/PRAMain. To find this particular information collection,
select ``Currently under Review--Open for Public Comment'' or use the
search function. It is requested that comments sent to the OMB also be
sent to the NHTSA rulemaking docket identified in the heading of this
document.
    Instructions: All written submissions must include the agency name
and docket number or Regulatory Information Number (RIN) for this
rulemaking. Note that all comments received will be posted without
change to http://www.regulations.gov, including any personal
information provided. For detailed instructions on sending comments and
additional information on the rulemaking process, see the ``Public
Participation'' heading of the SUPPLEMENTARY INFORMATION section of
this document.
    For comments on the proposed collection of information, all
submissions must include the agency name and docket number for the
proposed collection of information. Note that all comments received
will be posted without change to http://www.regulations.gov, including
any personal information provided. Please see the Privacy Act heading
below.
    Docket: For access to the docket go to http://www.regulations.gov
at any time or to 1200 New Jersey Avenue SE, West Building, Ground
Floor, Room W12-140, Washington, DC 20590 between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal Holidays. Telephone: 202-366-
9826.
    Privacy Act: Please see the Privacy Act heading under Regulatory
Analyses and Notices.

FOR FURTHER INFORMATION CONTACT:
    For program issues: Barbara Sauers, Acting Associate Administrator,
Regional Operations and Program Delivery, National Highway Traffic
Safety Administration; Telephone number:<PHONE_NUMBER>; Email:
[email protected].
    For legal issues: Megan Brown, Attorney-Advisor, Office of the
Chief Counsel, National Highway Traffic Safety Administration, 1200 New
Jersey Avenue SE, Washington, DC 20590; Telephone number: (202) 366-
1834; Email: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Comments From the Public Meeting and Request for Comments
III. General Provisions
IV. Triennial Highway Safety Plan and Annual Grant Application
V. National Priority Safety Program and Racial Profiling Data
Collection
VI. Administration of Highway Safety Grants, Annual Reconciliation
and Non-Compliance
VII. Request for Comments
VIII. Regulatory Analyses and Notices

I. Background

    We face a crisis on our roadways. NHTSA projects that an estimated
42,915 people died in motor vehicle crashes in 2021.\1\ This projection
is the largest annual percentage increase in the history of the
Fatality Analysis Reporting System. Projections for the first quarter
of 2022 are even bleaker; an estimated 9,560 people died in motor
vehicle crashes during this period.\2\ If these projections are
confirmed, this will be the highest number of first-quarter fatalities
since 2002. Behind each of these numbers is a life tragically lost, and
a family left behind. This crisis is urgent and preventable. NHTSA is
redoubling our safety efforts and asking our State partners to join us
in this critical pursuit. The programs to be implemented under today's
rulemaking are an important part of that effort. Now, more than ever,
we all must seize the opportunity to deliver accountable, efficient,
and data-driven highway safety programs to save lives and reverse the
deadly trend on our Nation's roads.
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    \1\ National Center for Statistics and Analysis. (2022, May).
Early estimates of motor vehicle traffic fatalities and fatality
rate by sub-categories in 2021 (Crash[middot]Stats Brief Statistical
Summary. Report No. DOT HS 813 298). National Highway Traffic Safety
Administration. Available at https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813298.
    \2\ National Center for Statistics and Analysis. (2022, August).
Early estimate of motor vehicle traffic fatalities for the first
quarter of 2022 (Crash[middot]Stats Brief Statistical Summary.
Report No. DOT HS 813 337). National Highway Traffic Safety
Administration. Available at https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813337.
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    On November 15, 2021, the President signed into law the
``Infrastructure Investment and Jobs Act'' (known also as the
Bipartisan Infrastructure Law, or BIL), Public Law 117-58. The BIL
provides for a once-in-a-generation investment in highway safety,
including a significant increase in the amount of funding available to
States under NHTSA's highway safety grants. It introduced expanded
requirements for public and community participation in funding
decisions, holding the promise of ensuring better and more equitable
use of Federal funds to address highway safety problems in the
locations where they occur. The BIL amended the highway safety grant
program (23 U.S.C. 402 or Section 402) and the National Priority Safety
Program grants (23 U.S.C. 405 or Section 405). The BIL significantly
changed the application structure of the grant programs that were in
place under MAP-21 and the FAST Act. The legislation replaced the
current annual Highway Safety Plan

(HSP), which serves as both a planning and application document, with a
triennial HSP and Annual Grant Application, and it codified the annual
reporting requirement. The BIL also made the following changes to the
Section 405 grant program:
     Maintenance of Effort--Removed the maintenance of effort
requirement for the Occupant Protection, State Traffic Safety
Information System Improvements Grants, and Impaired Driving Grants;
     Occupant Protection Grants--Expanded allowable uses of
funds and specified that at least 10% of grant funds must be used to
implement child occupant protection programs for low-income and
underserved populations;
     State Traffic Safety Information System Improvements
Grants--Streamlined application requirements (e.g., allows
certification to several eligibility requirements and removes
assessment requirement) and expanded allowable uses of funds;
     Impaired Driving Countermeasures Grants--Expanded
allowable uses of funds;
     Alcohol-Ignition Interlock Law Grants--Added criteria for
States to qualify for grants (e.g., specified three ways for a State to
qualify) and amended allocation formula;
     24-7 Sobriety Programs Grants--Amended allocation formula;
     Distracted Driving Grants--Amended definitions, changed
allocation formula, and amended requirements for qualifying laws;
     Motorcyclist Safety Grants--Added an eligibility criterion
(i.e., helmet law);
     State Graduated Driver Licensing Incentive Grants--
Discontinued grant;
     Nonmotorized Safety Grants--Amended the definition of
nonmotorized road user and expanded allowable uses of funds;
     Preventing Roadside Deaths--Established new grant; and
     Driver and Officer Safety Education--Established new
grant.
    In addition, the BIL amended the racial profiling data collection
grant authorized under the ``Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users'' (SAFETEA-LU), Sec.
1906, Public Law 109-59 (Section 1906), as amended by the FAST Act, to
expand the allowable uses of funds and amend the cap on grant award
amounts. It also removed the time limit for States to qualify for a
1906 grant using assurances.
    As in past authorizations, the BIL requires NHTSA to implement the
grants pursuant to rulemaking. On April 21, 2022, the agency published
a notification of public meeting and request for comments (RFC). 87 FR
23780. In that document, the agency sought comment on several aspects
relating to this rulemaking. Today's action proposes regulatory
language to implement the BIL provisions and addresses comments
received at the public meeting and in response to the RFC.
    This Notice of Proposed Rulemaking (NPRM) proposes application,
approval, and administrative requirements for all 23 U.S.C. Chapter 4
grants and the Section 1906 grants, consistent with the requirements
set forth in the BIL. Section 402, as amended by the BIL, continues to
require each State to have an approved highway safety program designed
to reduce traffic crashes and the resulting deaths, injuries, and
property damage. Section 402 sets forth minimum requirements with which
each State's highway safety program must comply. Under new procedures
established by the BIL, each State must submit for NHTSA approval a
triennial Highway Safety Plan (``triennial HSP'') that identifies
highway safety problems, establishes performance measures and targets,
describes the State's countermeasure strategies for programming funds
to achieve its performance targets, and reports on the State's progress
in achieving the targets set in the prior HSP. 23 U.S.C. 402(k). Each
State must also submit for NHTSA approval an annual grant application
that provides any necessary updates to the triennial HSP, identifies
all projects and subrecipients to be funded by the State with highway
safety grant funds during the fiscal year, describes how the State's
strategy to use grant funds was adjusted based on the State's latest
annual report, and includes an application for additional grants
available under Chapter 4. (23 U.S.C. 402(l)) The agency proposes to
reorganize and rewrite subpart B of part 1300, as well as 23 CFR
1300.35 to implement these changes.
    As noted above, the BIL expanded the allowable uses of funds for
many of the National Priority Safety Program grants, amended allocation
formulas, added criteria for some grants and streamlined application
requirements for others, deleted one grant, and established two new
grants. For Section 405 grants with additional flexibility (Occupant
Protection Grants, State Traffic Safety Information System Improvements
Grants, Impaired Driving Countermeasures Grants, Alcohol-Ignition
Interlock Law Grants, Distracted Driving Grants, Motorcyclist Safety
Grants, Nonmotorized Safety Grants, and Racial Profiling Data
Collection Grants) and for the new grants (Preventing Roadside Deaths
Grants and Driver and Officer Safety Education Grants), where the BIL
identified specific qualification requirements, today's action proposes
adopting the statutory language with limited changes. The agency is
also proposing aligning the application requirements for all Section
405 and Section 1906 grants with the new triennial HSP and annual grant
application framework.
    While many procedures and requirements continue unchanged by
today's action, this NPRM makes limited changes to administrative
provisions to address changes due to the triennial framework and
changes made by revisions to the Uniform Administrative Requirements,
Cost Principles, and Audit Requirements for Federal Awards, 2 CFR part
200.

II. Comments From the Public Meeting and Request for Comments

    In response to the RFC, the following submitted comments to the
public docket on www.regulations.gov: Aaron Katz; American Association
of State Highway and Transportation Officials (AASHTO); Accident Scene
Management, Inc.; Advocates for Highway & Auto Safety (Advocates);
Amado Alejandro Baez; American Ambulance Association; American College
of Surgeons, Committee on Trauma; Art Martynuska; Brandy Nannini (on
behalf of both Responsibility.org and National Alliance to Stop
Impaired Driving); Brian Maguire, Scot Phelps, Daniel Gerard, Paul
Maniscalco, Kathleen Handal, and Barbara O'Neill (Brian Maguire, et
al.); California Office of Traffic Safety (CA OTS); Center for Injury
Research and Prevention at Children's Hospital of Philadelphia (CIRP);
Connecticut Highway Safety Office (CT HSO); Covington County Hospital
Ambulance Service; David Harden; Drew Dawson; Emergency Safety
Solutions, Inc. (ESS, Inc.); Florida Department of Health, Bureau of
Emergency Medical Oversight (FL DOH); Governor's Highway Safety
Association (GHSA); Haas Alert; Institute for Municipal and Regional
Policy at the University of Connecticut (IMRP); International
Association of Emergency Medical Services Chiefs (IAEMSC);
International Association of Fire Chiefs (IAFC); Joshua Snider;
Kathleen Hancock; League of American Bicyclists; Leigh Anderson; Leon
County, Emergency Medical Services; Lorrie Walker; Louis Lombardo;
Louisiana Bureau of Emergency Medical Services; Louisiana Highway
Safety Commission (LA HSC); Love to Ride;

Mari Lynch; Minnesota Department of Public Safety (MN DPS); National
Association of City Transportation Officials (NACTO); National
Association of Emergency Medical Technicians (NAEMT); National
Association of State 911 Administrators (NASNA); National Association
of State Emergency Medical Services Officials (NASEMSO); National
Safety Council (NSC); National Sheriffs' Association; New York State
Governor's Traffic Safety Committee (NY GTSC); Oregon Department of
Transportation Safety Office (OR DOT); Paul Hoffman; Rebecca Sanders;
Safe Kids Worldwide; Safe Routes Partnership; SafetyBeltSafe U.S.A.;
Saratoga County, NY Emergency Medical Services (Saratoga County); Scott
Brody; Pedestrian Safety Solutions; Tom Schwerdt; Transportation Equity
Caucus; Vision Zero Network; Washington Traffic Safety Commission (WA
TSC); Wisconsin Bureau of Transportation Safety (WI BOTS); Wisconsin
Bureau of Transportation Safety, Division of State Patrol (WI BOTS
Patrol); joint submission by the Departments of Transportation of
Idaho, Montana, North Dakota, South Dakota and Wyoming (5-State DOTs);
and three anonymous commenters. Five of these commenters (5-State DOTs;
WA TSC; Brandy Nannini; MN DPS; and CT HSO) expressed general support
for GHSA's comments. The WA TSC also expressed support for the comments
provided by the MN DPS, CA HSO and NY GTSC.
    NHTSA received communications directly from three organizations
prior to the Request for Comment. (See letter from Governor's Highway
Safety Association (GHSA); a letter from Mothers Against Drunk Driving
(MADD); and a joint letter from Governor's Highway Safety Association,
Responsibility Initiatives, National Alliance to Stop Impaired Driving,
Mothers Against Drunk Driving, National Safety Council, and Coalition
of Ignition Interlock Manufacturers.) Because of the substantive nature
of these communications, NHTSA added them to the docket for this rule.
    In this preamble, NHTSA addresses all comments and identifies any
proposed changes made to the existing regulatory text in part 1300.\3\
In addition, NHTSA makes several technical corrections to cross-
references and other non-substantive editorial corrections necessitated
by proposed changes to the rule. For ease of reference, the preamble
identifies in parentheses within each subheading and at appropriate
places in the explanatory paragraphs the CFR citation for the
corresponding regulatory text.
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    \3\ Fourteen commenters submitted comments that are outside the
scope of this rulemaking, including comments related to
infrastructure and road design, vehicle and other private
technologies, NHTSA's Section 403 authorities, suggestions for NHTSA
research and messaging, substantive requirements for data systems, a
recommendation that NHTSA mandate cell phone technology, a request
that NHTSA publish outside entities' research, and general
statements about the importance of traffic safety. As these comments
are outside the scope of NHTSA's Section 402 and 405 grant programs,
they are beyond the scope of this rulemaking and will not be
addressed further in this preamble.
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    Many commenters provided general input about the rulemaking process
or to overarching aspects of highway safety that cannot be tied to a
single regulatory provision. Those comments are discussed below.

A. Rulemaking Process

    Several commenters \4\ stated that NHTSA should ensure fidelity to
the spirit and letter of Congressional directives, minimize
administrative burden on States, and provide great flexibility in use
of funds. They explained that unnecessary administrative burdens shift
States' focus away from program delivery and discourage subrecipient
participation. The 5-State DOTs additionally recommended that NHTSA
strive to avoid duplicative planning and reporting burdens between DOT
agencies, and to consult with FHWA during the rulemaking process. As
will be clear throughout this preamble and in the proposed rule itself,
NHTSA's primary goal in this notice of proposed rulemaking is to
propose a regulation that will implement the statutory requirements for
the highway safety grant program. It is not our intention to impose
unnecessary administrative burdens on States or their subrecipients.
However, as a grantor agency, we have a responsibility to ensure that
Federal grant funds are spent for the purposes Congress specifies and
consistent with all legal requirements. Applicable legal requirements
include both the Section 402 and 405 statutory text, as well as other
Federal grant laws and regulation. Those statutory requirements include
the submission of a triennial plan that sets forth how a state will use
funds to reduce traffic crashes, fatalities, serious injuries, and
economic harm through the use of effective countermeasures.
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    \4\ AASHTO, GHSA, MN DPS, NY GTSC, WI BOTS and 5-State DOTs.
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    AASHTO, GHSA and SafetyBeltSafe U.S.A. all submitted comments
supporting increased public participation and opportunity to comment in
NHTSA's rulemaking process. AASHTO encouraged NHTSA to consider all
comments received, which we do in this action and will continue to do
throughout the rulemaking process. GHSA expressed support for NHTSA's
intention to publish a NPRM rather than publishing an Interim Final
Rule, noting that it will provide opportunity for public comment. And
SafetyBeltSafe U.S.A. expressed appreciation for the public meetings
NHTSA held as part of its RFC, noting that they provided an opportunity
to bring different parts of the traffic safety community together.
NHTSA appreciates these comments and the comments received in response
to the RFC, and we encourage comments responding to this NPRM. We
commit to considering all comments carefully and thoughtfully.
    GHSA requested that NHTSA complete the rulemaking process quickly
in order to facilitate States in their highway safety planning and
application processes. GHSA specifically sought first, publication of
the final rule by October 2022, and in a later comment, publication by
the end of December 2022. NHTSA appreciates the need to finalize the
rule with sufficient time for States to rely on the rule in completing
their fiscal year (FY) 2024 triennial HSPs and Annual Grant
Applications, due July 1 and August 1, 2023, respectively. While it is
not possible to complete the full rulemaking process, in accordance
with the Administrative Procedure Act (5 U.S.C. 553), within the
timeline proposed by GHSA, NHTSA plans to publish a Final Rule with
sufficient time for States to rely on the rule for their FY24 grant
applications.
    GHSA further recommended that NHTSA establish an effective date of
Federal fiscal year 2024 for the rule. Consistent with the BIL, the
final rule, when published, will be effective for fiscal year 2024 and
later grants.
    GHSA and the NY GTSC stressed the importance of uniform and
consistent guidance so that States can rely on the same
interpretations. AASHTO recommended that the agency focus on providing
program-level guidance while allowing for effective collaboration and
coordination of State programs. GHSA further suggested several specific
NHTSA guidance documents that it would like the agency to review or
create in light of the statutory changes implemented in the BIL and
based on past experience. The agency recognizes that some existing
guidance may require modification or recission as a result of changes
to the statute and this rule. We intend to begin reviewing existing
guidance after this rulemaking is complete and will keep the specific

suggestions provided by GHSA in mind at that time.

B. Equity

    NHTSA received several comments stressing the importance of equity
in traffic safety programs. The Transportation Equity Caucus noted that
the concept of public safety may be defined differently in different
communities and recommended that NHTSA be guided by Executive Order
13985, Advancing Racial Equity and Support for Underserved Communities
Through Federal Government. NHTSA strongly supports the policies and
commitment to equity laid out in the Executive Order and is committed
to fulfilling our responsibilities under the Order and to following its
principles. For example, NHTSA's Office of Civil Rights (NCR) recently
hired a Division Chief to focus on the enforcement of Title VI of the
Civil Rights Act of 1964, which prohibits recipients of Federal
financial assistance from discriminating against persons on the basis
of race, color, or national origin (including limited English
proficiency). NCR is also hiring a Division Chief to serve as principal
staff advisor on all activities related to the Americans with
Disabilities Act and Section and Section 504 of the Rehabilitation Act
of 1973. Additionally, NHTSA's Office of Grants Management and
Operations is preparing to hire two program analysts to focus on
stakeholder engagement, equity in traffic safety, and the needs of
populations that are overrepresented in traffic fatalities and serious
injuries.
    In addition, NHTSA was guided, in part, by the Order's requirement
to increase opportunities for public engagement when we decided to hold
three hearings and publish an RFC in advance of drafting this notice of
proposed rulemaking. As a result of those hearings and the RFC, NHTSA
received numerous comments from groups specifically focused on equity,
from representatives of non-profit community groups, and from members
of the public. Many commenters emphasized the importance of equity in
highway traffic safety, and several made specific recommendations for
the agency to consider. Many of the comments touch on different areas
of NHTSA's work that have an impact on the grant program, including
NHTSA's research and technical assistance activities. A number of the
comments relate to NHTSA activities that fall outside the scope of the
rulemaking, which is limited to applications and grant management in
the highway safety grant program. In recognition of the importance of
the topic, and in appreciation for the thoughtful consideration that
went into submission of those comments, we will nonetheless summarize
and briefly respond to all comments we received relating to equity.
    Many commenters submitted comments asking NHTSA to place less
emphasis on enforcement as a traffic safety countermeasure \5\ or to
discontinue funding law enforcement altogether.\6\ Relatedly, several
commenters expressed concern that NHTSA's grant funds provide support
for pretextual stops by law enforcement, with several specifically
mentioning NHTSA's support for the Data-Driven Approaches to Crime and
Traffic Safety (DDACTS) program.\7\ The commenters expressed serious
and data-driven concerns about the disparate impacts of policing and
the incidence of police violence during traffic stops, especially
during pretextual stops. (See id.)
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    \5\ League of American Bicyclists, NACTO, Safe Routes
Partnerships, and Vision Zero Network.
    \6\ TEC.
    \7\ League of American Bicyclists, NACTO, Transportation Equity
Caucus, and Vision Zero Network.
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    NHTSA's partnerships with law enforcement and advocacy communities
are an important part of traffic safety work, and equity must be at the
forefront in that work. The public must be able to trust that law
enforcement will treat all persons fairly, regardless of race, color,
sex, age, national origin, religion or disability. NHTSA engages in an
ongoing dialog with the Center for Policing Equity regarding advancing
equity in traffic safety enforcement. NHTSA is also working to center
equity in its ongoing relationship with both the National Sheriffs'
Association and the International Association of Chiefs of Police, as
the National Sheriffs' Association recommended in its comment.
    Equally important are the States' partnerships and relationships of
trust with their own law enforcement resources. Fundamentally,
recipients of Federal grant funds are prohibited from using the funds
in a discriminatory manner. As a result, all State grant recipients
must ensure that the law enforcement agencies to which they provide
highway safety grant funds have strong equity-based enforcement
practices. NHTSA's highway safety grant funds may only be used for
permissible traffic safety purposes. Use of NHTSA grant funds for
discriminatory practices, including those associated with pretextual
policing, violates Federal civil rights laws and NHTSA will seek
repayment of any grant funds that are found to be used for such
purposes and refer any discriminatory incidents to the Department of
Justice.
    DDACTS is a law enforcement operational model that integrates
location-based traffic-crash and crime data to determine the most
effective methods for deploying law enforcement and other resources. It
focuses on community collaboration to reinforce the role that
partnerships play in improving the quality of life in communities and
encourages law enforcement agencies to use effective engagement and new
strategies. NHTSA continuously reviews the content of DDACTS training
and works to ensure that the training focuses on community engagement
and the appropriate application of fair and equitable traffic
enforcement strategies. Note, however, that not all DDACTS-related
activities are eligible uses of NHTSA's highway traffic safety grant
funds. NHTSA's grant funds may only be used for traffic safety
activities; any other use of law enforcement is not eligible for
funding under the highway traffic safety grants. NHTSA will continue to
evaluate DDACTS to ensure that it promotes only enforcement that is
implemented fairly and equitably.
    Both the Vision Zero Network and Safe Routes Partnerships stressed
the importance of meaningful community engagement in designing
equitable traffic safety programs. The BIL added a requirement for
States to include meaningful public participation and engagement in
State highway safety programs. 23 U.S.C. 402(b)(1)(B). In addition,
Title VI of the Civil Rights Act of 1964 (Title VI), as implemented
through DOT Order 1000.12C, requires that recipients of Federal funding
submit a Community Participation Plan to ensure diverse views are heard
and considered throughout all stages of the consultation, planning, and
decision-making process. NHTSA agrees with the commenters that
increased community engagement can help ensure that State highway
safety programs are more equitable, and proposes regulatory provisions
to implement BIL's requirement along with the Community Participation
requirements from Title VI of the Civil Rights Act of 1964.\8\ These
requirements will be discussed in more detail in the relevant sections
of this preamble. See 23 CFR 1300.11(b)(2) and 23 CFR 1300.12(b)(2).
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    \8\ 42 U.S.C. 2000d et seq.
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    The Vision Zero Network recommended several strategies to rethink
and expand the ways education and enforcement are utilized in traffic
safety. Among other things, it

recommended that NHTSA: research equitable education and enforcement
strategies; promote alternatives to traditional enforcement strategies,
criminalization, and fines; educate key influencers in the safe system
approach; promote safe, sustainable mobility options; and support
grassroots safety advocacy. NHTSA appreciates these suggestions and is
already beginning to implement these strategies, including through a
cooperative agreement with the National Safety Council supporting the
Road to Zero Coalition's community traffic safety grants. NHTSA
encourages States to consider these and other strategies when planning
their highway safety programs and will work with States as they develop
their triennial Highway Safety Plans. The Vision Zero Network also
suggested that NHTSA fund State assessments of equity outcomes of
enforcement work and pilot alternative strategies. Some NHTSA grant
funds may be used for these purposes. For example, the 1906 grant
program provides funding for collecting, maintaining, and evaluating
race and ethnicity data on traffic stops, as well as to develop and
implement programs to reduce the disparate impacts of traffic stops. In
addition, the Section 402 grant program provides broad eligible uses of
funds, including demonstration programs. NHTSA encourages States to
reach out to their Regional Office to discuss whether a particular
pilot program may be an eligible use of NHTSA grant funds as these
determinations are often fact-specific. NHTSA will also work with
States to share information about best practices and to identify
effective and allowable uses of funds for equity outcomes in
enforcement work.
    The NY GTSC recommended some specific actions that the State has
implemented to support the inclusion of equity in its highway safety
program, including creation of groups such as the New York State Equity
Subcommittee, to ensure programming reaches underserved communities
that are overrepresented in traffic crashes. In addition, New York
recommended that States expand the data sources they consider, to
include census and demographic information, as well as anecdotal
information combined with localized crash data in order to conduct
outreach efforts. NHTSA appreciates these examples and the efforts that
the State already has underway. The agency supports all States looking
into additional ways to identify and reach non-traditional highway
safety partners and will work to encourage the sharing of effective
programs among the States.
    The Vision Zero Network recommended that NHTSA take action on the
equity-related suggestions in the Federal Highway Administration's
report titled ``Integrating the Safe System Approach with the Highway
Safety Improvement Program.'' While that report is targeted to FHWA's
HSIP program, NHTSA nonetheless agrees with the overarching principles,
including the need to include equity considerations throughout all
aspects of the highway safety grant program. This proposal supports
these efforts through the increased emphasis on public participation in
highway safety planning and through explicitly including demographic
data as a resource for States to consult during problem identification.
    Finally, the League of American Bicyclists recommended that NHTSA
consider discriminatory outcomes of countermeasures when promoting our
Countermeasures That Work guide.\9\ It specifically mentioned the costs
of discriminatory enforcement and disparate impacts of required fines
on low-income people. As noted earlier, discriminatory enforcement has
no place in NHTSA's grant programs or under Federal civil rights laws,
and NHTSA will take prompt and appropriate action when it becomes aware
of any such activity under NHTSA grant programs. NHTSA is currently
working on the next edition of the Countermeasures That Work, and will
explore the considerations raised by the commenter in the course of
that undertaking.
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    \9\ Available online at https://www.nhtsa.gov/sites/nhtsa.gov/files/2021-09/Countermeasures-10th_080621_v5_tag.pdf.
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C. National Roadway Safety Strategy and the Safe System Approach

    NHTSA appreciates the thoughtful feedback from several commenters
regarding the Department's implementation of the National Roadway
Safety Strategy (NRSS) and the Safe System Approach (SSA). While the
substance of the Department's strategy laid out in the NRSS and the SSA
is not within the scope of this rulemaking, the activities carried out
through the grant program play an important role in implementing the
NRSS and the SSA. The objectives of the NRSS/SSA are inherently
intertwined with NHTSA's data-driven mission to save lives, prevent
injuries, and reduce economic costs due to road traffic crashes through
education, research, safety standards, and enforcement. To address the
unacceptable increases in fatalities on our nation's roadways, the
NRSS/SSA adopts a data-driven, holistic, and comprehensive approach
focused on reducing the role that human mistakes play in negative
traffic outcomes and in recognizing the vulnerability of humans on the
roads. We recognize all the contributing factors involved with a safe
system approach: equity, engineering, education, enforcement, and
emergency medical services.
    Four commenters \10\ stated broad support for the principles and
promise of the NRSS. Six commenters \11\ noted that implementing the
NRSS will require NHTSA to afford administrative flexibility to States,
which NHTSA intends to provide consistent with the law. AASHTO stressed
the need to coordinate behavioral and infrastructure-based traffic
safety initiatives. This comment is consistent with Congress' clear
intent. Section 402 requires that a State highway safety program must
coordinate the highway safety plan, data collection, and information
systems with the State strategic highway safety plan (SHSP) under 23
U.S.C. 148(a). NHTSA has long incorporated this requirement into the
grant program regulation at 23 CFR 1300.4(c)(11). In addition, since
2016, States have been required to submit and report on identical
common performance measures in both the HSP and the SHSP, thus ensuring
that State behavioral and infrastructure-based programs collaborate in
planning and measuring progress towards those common targets.
---------------------------------------------------------------------------

    \10\ CA OTS, ESS, Inc., League of American Bicyclists and WA
TSC.
    \11\ Brandy Nannini, CT HSO, GHSA, MN DPS, WI BTS and 5-State
DOTs.
---------------------------------------------------------------------------

    The League of American Bicyclists recommended that NHTSA allow
States to use highway safety grant funds to provide education on the
ways that the built environment can influence safe behaviors.
Similarly, Vision Zero Network recommended that NHTSA and States shift
the focus from education and enforcement to speed management and
roadway design changes. NHTSA notes that while highway safety grant
funds may not be used for roadway design, Section 402 grant funds (and
in some cases Section 405 grant funds) may be used to fund educational
efforts on the interaction between the built environment and behavior,
provided such activities are part of a countermeasure strategy for
programming funds that is supported by problem ID.
    GHSA raised the concern that the SSA framing that people make
mistakes will be misunderstood to absolve drivers from responsibility
for safe driving

behaviors. Acknowledging that humans make mistakes does not absolve
drivers of responsibility; it seeks to understand better how mistakes
happen, identify potential solutions and develop redundancies in the
system in order to minimize the consequences when any part of the
system fails. As the League of American Bicyclists and WA TSC noted,
roadway safety is a shared responsibility. The traveling public also
has a role to play. Each of us uses our roads almost every day, whether
as a motorist, a passenger, or when walking, biking, or rolling. Our
actions should prioritize safety first and we should use every
effective strategy we can to reduce fatalities and injuries.
    Four commenters suggested that NHTSA undertake activities to help
States implement the NRSS and the SSA. CA OTS, GHSA, and Vision Zero
Network all suggested that NHTSA support State efforts to implement the
SSA by undertaking research to identify best practices and then
providing guidance to States on those best practices. Vision Zero
Network and WA TSC recommended that NHTSA train the State highway
safety offices (HSOs) on the SSA and that the HSOs in turn train their
subrecipients. In May 2022, as part of NHTSA's ongoing efforts to
provide resources to assist states with implementing the NRSS and the
SSA, NHTSA announced an expanded safety program technical assistance
offered to States. This technical assistance aligns with the priorities
and objectives of the NRSS. We will continue to assess States' needs
and offer assistance in implementing the NRSS and SSA where possible as
States implement their programs.

D. Transparency

    The BIL expanded the transparency requirements for Section 402.
Specifically, the BIL requires NHTSA to publicly release, on a DOT
website, all approved triennial HSPs and annual reports. 23 U.S.C.
402(n)(1). In addition, the website must allow the public to search
specific information included in those documents: performance measures,
the State's progress towards meeting the performance targets, program
areas and expenditures, and a description of any sources of funds other
than NHTSA highway safety grant funds that the State proposes to use to
carry out the triennial HSP. Id. NHTSA will post this information on
NHTSA.gov consistent with the statutory requirements. While the
statutory requirement for NHTSA to release this information does not
require regulatory implementation, the information contained in the
State documents, and thereafter released online, implicates the
substance of the rule. For ease of reading, NHTSA addresses the
majority of the requirements for the triennial HSP and annual report in
other sections of this rule. However, we will address some of the
transparency recommendations that commenters specifically provided
here.
    Both Advocates and the NSC submitted comments that broadly
supported increased transparency, noting that transparency is vital for
the public to measure the success of the highway safety grant program.
Several commenters provided recommendations for information that they
believe would help allow States and stakeholders to compare programs
between States. The League of American Bicyclists recommended that
NHTSA require States to provide information in the annual application
that will show who receives grant funding and what the funding is used
for in a manner that allows comparisons between States. NHTSA agrees,
and believes that the project information, including subrecipients and
information on the eligible use of funds, that BIL and the proposed
regulation require for each project will serve this purpose. See 23
U.S.C. 402(l)(1)(C)(ii) and 23 CFR 1300.12(b)(2). The NSC recommended
that NHTSA require states to submit, and then release publicly,
information on how much funding is used for direct programmatic
activities, the short- and long-term impacts of State highway safety
programs, and discussion about how community engagement informed the
State's proposed use of funds. NHTSA proposes to include some of this
information in the proposed regulation. Specifically, NHTSA proposes to
require that States identify in the annual grant application the amount
of costs attributed to planning and administration. See 23 CFR
1300.12(b)(2)(viii). In addition, NHTSA proposes to require that States
assess progress towards meeting performance targets and provide a
description of how the projects that the State implemented were
informed by meaningful public participation and engagement. See 23 CFR
1300.35(a) and 1300.35(b)(1). NSC further recommended that at a
minimum, States be required to report financial data, information on
which regulations they complied with, and project data showing progress
and community impact. NHTSA notes that financial data are required of
all Federal grant recipients by 2 CFR 200.328 and that requirement is
incorporated into NHTSA's proposed regulation at 23 CFR 1300.12(b)(2).
NHTSA does not believe it is necessary to require States to provide a
list of regulations to which they adhere. Federal grant recipients are
responsible for, and States certify to, compliance with all applicable
Federal laws and regulations, and States may be further subject to
State laws and regulations. Many of those applicable laws and
regulations are listed in proposed appendix A. Finally, NSC recommended
that annual reports should be made available to the public for comment
and that States should be required to incorporate those comments into
their triennial HSPs. NHTSA already posts State annual reports online
at NHTSA.gov, as is required by the BIL. See 23 U.S.C. 402(n)(2)(B).
However, NHTSA does not have authority to impose public comment on
State annual reports, nor does NHTSA have authority to require States
to incorporate any comments on annual reports that they may receive
through other channels. That said, States may do so as part of a public
engagement process, if they wish.
    GHSA noted that transitioning to an electronic grant management
system would enable greater transparency in the use of NHTSA highway
safety grant funds by allowing State program information contained in
that system to be aggregated, organized, and made available to the
public in a user-friendly manner. NHTSA agrees and is currently in the
process of working to update our grant management system. We expect
that this will facilitate greater cross-state collaboration and data
analysis in addition to greater transparency in the use of program
funding. In the meantime, NHTSA requests comment on a potential
approach to develop a standardized template, codified as an appendix to
the regulation, that States could use to provide information in a
uniform manner similar to what we hope will be enabled by a future E-
grant system. This would also potentially respond to comments from the
League of American Bicyclists, Safe Routes Partnership, and Vision Zero
Network seeking reports that are easier to read and that enable
comparison between States in a useful manner.

E. Emergency Medical Services

    Twenty-one commenters provided comments related to various aspects
of emergency medical services, post-crash care, and 911 systems. These
comments covered three general themes: eligibility for NHTSA grant
funds, allowable use of grant funds, and NHTSA's actions related to
emergency medical services (EMS) and 911.
    Eight commenters discussed eligibility for funding under NHTSA's

highway safety grant program. NAEMT and Saratoga County EMS both
provided a general statement that funding should be provided to EMS
offices and providers via the State highway safety offices. Aaron Katz
and the American Ambulance Association both requested that funding be
provided to EMS offices regardless of whether the EMS provider is for-
profit, a hospital, or a municipal service. The International
Association of Fire Chiefs seeks to ensure that even the smaller EMS
agencies receive Federal funding. Leon County EMS, Covington County
Hospital Ambulance and Brian Maguire, et. al all requested that NHTSA
provide funding directly to EMS agencies, rather than going through
State highway safety offices. Finally, Brian Maguire, et. al
recommended that States be required to report the amount of funding
that is provided to EMS agencies and that all grant funds that remain
unexpended at the end of the third quarter be reallocated directly to
EMS agencies. NHTSA supports the EMS communities' efforts to integrate
post-crash care initiatives into State highway safety programs where
supported by the data and encourages States to consider funding
eligible EMS activities with NHTSA's highway safety grant funds.
However, under our grant statute, NHTSA does not have the authority to
direct State funding choices or to provide funding directly to EMS
agencies.
    Eighteen commenters \12\ provided recommendations or requests that
specified that certain costs be considered allowable uses of NHTSA
highway safety grant funds. Identified costs included post-crash care,
training, research, development and purchase of equipment and
technology, data gathering and access, emergency vehicle outfitting,
enhancements to 911 systems and collision notification systems. NASEMSO
requested specific clarification that EMS agencies are not required to
limit funding requests related to NEMSIS software, personnel,
maintenance and training only in proportion to the percentage of NEMSIS
entries that are connected to traffic-related incidents. Determinations
of allowable use of funds are highly fact-specific and are dependent on
many factors, including the funding source to be used (i.e., Section
402 or one of the Section 405 incentive grants) and the details of the
activity to be funded. In some cases, projects may be limited to
proportional funding, if there is not a sufficient nexus to traffic
safety to fund the entirety of the project. In addition, all activities
funded by NHTSA highway safety grant funds must be tied to
countermeasure strategies for programming funds in the State's
triennial HSP, which in turn must be based on a State's problem
identification and performance targets. NHTSA strongly encourages all
stakeholders, including the EMS community, to work closely with State
HSOs to educate them on all available data sources, including NEMSIS,
that would assist them with problem identification and the development
of countermeasure strategies, as well as to offer ideas for potential
activities that may be eligible for NHTSA formula grant funding.
---------------------------------------------------------------------------

    \12\ Aaron Katz; Accident Scene Management, Inc.; Amado
Alejandro Baez; American Ambulance Association; American College of
Surgeons; Art Martynuska; Brian Maguire, et. al; David Harden; FL
DOH; IAEMSC; IAFC; Leigh Anderson; LA EMS; Leon County EMS; NASEMSO;
NAEMT; NASNA; Saratoga County EMS.
---------------------------------------------------------------------------

    Six commenters \13\ provided comments related to the activities of
NHTSA's Office of Emergency Medical Services (OEMS). Drew Dawson and
NASEMSO both recommended that the grant program coordinate with the
Office of EMS to provide guidance on EMS and 911 funding requests. The
Office of EMS is a knowledgeable and useful resource to States, EMS
agencies, and to NHTSA itself in addressing the post-crash care
component of the highway safety grant program. The remaining comments
were out of scope of this rulemaking because they relate to NHTSA's
activities outside of the highway safety grant program.
---------------------------------------------------------------------------

    \13\ Brian Maguire, et. al; Drew Dawson; IAFC; Louis Lombardo;
NASEMSO; Saratoga County EMS.
---------------------------------------------------------------------------

F. Other

    GHSA requested amendments to appendices A and B, both of which are
required components of State's annual grant application submission.
Specifically, GHSA asked that NHTSA format the Appendices, which serve
as application documents, so that the signature page is separate from
the other pages of the document in order to streamline State approval.
The Appendices, consisting of the Certifications and Assurances for
Highway Safety Grants and the Application Requirements for Section 405
and Section 1906 Grants, serve as official documents for State grant
applications. The signature on those documents serves as a formal,
legal attestation from the Governor's Representative that the contents
of the State's application are accurate and that the State agrees to
comply with all applicable laws, regulations, and financial and
programmatic requirements. It is therefore necessary that the signatory
see the entire document and that the document not be edited after a
signature is appended. NHTSA therefore declines to adopt this
suggestion.
    Separately, GHSA noted that the BIL expanded the eligible use of
Section 154 and Section 164 grant funds to include measures to reduce
drug-impaired driving, and requested that NHTSA clarify that those
changes had immediate effect. NHTSA affirms GHSA's interpretation; the
BIL changes to Section 154/164 took effect immediately upon enactment
of the BIL.

III. General Provisions (Subpart A)

A. Definitions (23 CFR 1300.3)

    This NPRM proposes to add definitions for several terms. Some of
these definitions (automated traffic enforcement system (ATES) and
Indian country) merely incorporate statutory definitions into NHTSA's
regulation. 23 U.S.C. 402(c)(4)(A) and 23 U.S.C. 402(h)(1),
respectively. Other definitions (annual grant application,
countermeasure strategy for programming funds, and triennial Highway
Safety Plan (triennial HSP) were drawn from statutory program
requirements. The proposed definition for countermeasure strategy for
programming funds was informed by a comment from GHSA asking the agency
to clarify its applicability to traffic records programs. Lorrie Walker
asked the agency to define ``underserved populations,'' while GHSA
recommended that NHTSA allow States to identify ``underserved
populations'' on a State by State basis and to articulate their
rationale because data sources and populations may vary from State to
State. After considering these comments, the agency proposes a broad
definition for ``underserved populations'' that is based on the
definition used in Executive Order 13985. This high-level definition
should provide States with guidance in identifying the specific
populations within their jurisdictions, while providing flexibility for
different State situations. NHTSA developed definitions for two
additional terms to clarify potential sources of confusion for States
regarding grant program requirements. The definition of community is
intended to build upon the common understanding of the term. The agency
developed the definition for political subdivision of a State after
consulting definitions codified by other Federal agencies and making
adjustments to tailor the definition to the highway safety grant
program.

    Today's action also proposes to amend some existing definitions,
such as those for performance target, problem identification, and
program area, to provide further clarity to States. The definition for
project was amended to incorporate the BIL's statutory definition of
``funded project.'' 23 U.S.C. 406(a). The agency proposes to amend the
definition for serious injuries to reflect the publication of the 5th
Edition of the Model Minimum Uniform Crash Criteria (MMUCC) Guideline.
    Finally, this NPRM proposes to delete the definitions for three
terms that are not used in the regulatory text: fatality rate, five-
year (5 year) rolling average, and number of serious injuries. NHTSA
also proposes to delete the definition for ``number of fatalities'' as
we believe it is self-explanatory.

B. State Highway Safety Agency (23 CFR 1300.4)

    Today's action proposes updates to the authorities and functions of
the State Highway Safety Agency, also referred to as the State Highway
Safety Office (State HSO or SHSO). The NPRM explicitly adds the
requirement that the Governor's Representative (GR) is responsible for
coordinating with the Governor and other State agencies, and clarifies
that the GR may not be positioned in an entity that would create a
conflict of interest with the SHSO; however, these are not new
requirements. Section 402 requires that the Governor of the State imbue
the State highway safety agency with adequate powers and that it be
suitably equipped and organized to carry out the State's highway safety
program. 23 U.S.C. 402(b)(1)(A). Recognizing that Governors delegate
this responsibility, NHTSA long ago created the requirement for the
Governor to designate a GR. In order to carry out the requirements of
Section 402, the GR must have the authority to coordinate with the
Governor and other State agencies in carrying out the highway safety
program. Conflict of interest restrictions are a fundamental component
of Federal grant law. See 2 CFR 200.112. Consistent with NHTSA's
emphasis on equity considerations in highway safety programs and the
BIL's emphasis on meaningful public participation and engagement and
identification of disparities in traffic enforcement, the agency
proposes to add the requirement that State Highway Safety Agencies be
authorized to foster such engagement and include demographic data in
their highway safety programs.

III. Triennial Highway Safety Plan and Annual Grant Application
(Subpart B)

    The creation of a new triennial framework is the most significant
change that BIL made to the highway safety grant program. In BIL,
Congress replaced the annual Highway Safety Plan (HSP), which serves as
both a planning and application document under MAP-21 and the FAST Act,
with a Triennial HSP and Annual Grant Application. As part of this
framework, Congress increased community participation requirements and
codified the annual reporting requirement.
    Under the new procedures established by BIL, each State must submit
for NHTSA approval a triennial Highway Safety Plan (``triennial HSP''
or ``3HSP'') that identifies highway safety problems, establishes
performance measures and targets, describes the State's countermeasure
strategies for programming funds to achieve its performance targets,
and reports on the State's progress in achieving the targets set in the
prior HSP. (23 U.S.C. 402(k)) Each State must also submit for NHTSA
approval an annual grant application that provides any necessary
updates to the triennial HSP, identifies all projects and subrecipients
to be funded by the State with highway safety grant funds during the
fiscal year, describes how the State's strategy to use grant funds was
adjusted by the State's latest annual report, and includes an
application for additional grants available under Chapter 4. (23 U.S.C.
402(l)(1)) Finally, each State must submit an annual report that
assesses the progress made by the State in achieving the performance
targets set out in the triennial HSP and describes how that progress
aligns with the triennial HSP, including any plans to adjust the
State's countermeasure strategy for programming funds in order to meet
those targets. (23 U.S.C. 402(l)(2))
    This new framework continues many of the requirements that States
previously were required to meet under the annual HSP requirement, but
distributes them between the triennial HSP and the annual application.
This redistribution requires NHTSA to update language throughout the
regulation in order to clarify to which submission a particular
requirement applies. References to the HSP have now been updated to
refer to either the triennial HSP or, more frequently, the annual grant
application. In addition, NHTSA has removed all references to planned
activities throughout the regulation. This will address GHSA's comments
that the concept of planned activities was burdensome to States. NHTSA
had created the concept of planned activities in the final rule
implementing the FAST Act in response to comments from States that they
did not have project-level information available at the time of
drafting the HSP. However, the BIL now explicitly requires project
information in the annual grant application, as described in more
detail below. As a result, references to planned activities in the HSP
have been updated throughout the regulation to refer to projects in the
annual grant application. References to ``countermeasure strategies''
now link to the triennial HSP instead of the HSP.
    In addition, NHTSA has reorganized subpart B of part 1300 to
accommodate the new triennial framework. Where previously subpart B was
fully directed at the HSP, the subpart now includes separate sections
for the triennial HSP, the annual grant application, and specific
requirements for Section 402. Section 1300.10 provides that, in order
to apply for any highway safety grant under Chapter 4 and Section 1906,
a State must submit both a triennial Highway Safety Plan and an annual
grant application. The requirements for the triennial HSP and annual
grant application, including deadline, contents, and review and
approval procedures, are set out in Sec. Sec.  1300.11 and 1300.12,
respectively. Section 1300.13 lays out the special funding conditions
for Section 402 grants, and Section 1300.15 provides the rules for
NHTSA's apportionment and obligation of Federal funds under Section
402. The agency reserves Sec.  1300.14. The contents of each section
will be discussed in more depth below.
    There appears to be some confusion among commenters about the
timeframes envisioned by BIL for submissions under this framework.
AASHTO and GHSA, supported by many State commenters, recommended that
for the first year of each triennial cycle, States only be required to
submit a triennial HSP along with appendix B, with no annual grant
application. They then agreed that States would submit annual
applications in the second and third years. This is inconsistent with
the statutory requirement. As laid out in BIL, States must submit both
a triennial HSP and an annual application in the first year of a
triennial cycle, with only an annual grant application for years two
and three. See 23 U.S.C. 402. As the many commenters who urged NHTSA to
clearly distinguish the two submissions make clear, the triennial HSP
and annual grant application fulfill different

purposes. As commenters \14\ rightly noted, the triennial HSP provides
longer-term, program-level planning spanning a three-year period while
the annual grant application implements that plan each year through
project-level details.
---------------------------------------------------------------------------

    \14\ Brandy Nannini, CA OTS, CT HSO, GHSA, MN DPS, NY GTSC, WA
TSC, WI BOTS, and 5-State DOTs.
---------------------------------------------------------------------------

    In addition to the broad comments that the agency ensure fidelity
to the law in drafting the regulatory text, GHSA specifically requested
that NHTSA refrain from requiring application or reporting requirements
beyond those explicitly authorized by law. NHTSA has striven to do so.
However, we note that relevant legal requirements are not limited to
the BIL. For example, OMB's Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards (2 CFR part 200)
provide many requirements applicable to the grant program, both for
States as award recipients and to NHTSA as the awarding agency. We have
included several of those requirements throughout this regulation.
    NHTSA believes that the triennial framework created by the BIL,
with annual projects tied to longer-range planning based on performance
targets and countermeasure strategies, is a valuable tool for States as
they and NHTSA work to address the recent increase in traffic
fatalities. It has never been more important for States to carry out
strong, data-driven and performance-based highway safety programs.
While NHTSA has worked to implement the statutory requirements and
avoid adding unnecessary burden on States, we are committed to ensuring
through our review and approval authority that State triennial HSPs and
annual grant applications provide for data-driven and performance based
highway safety programs. NHTSA will not approve a triennial HSP that
has worsening performance targets or where countermeasure strategies
are not sufficient to allow the State to meet its targets or are not
supported by evidence that they are effective. NHTSA also will not
approve an annual grant application where the projects provided are not
sufficient to carry out the countermeasure strategy in an approved
triennial HSP.

A. General (23 CFR 1300.10)

    NHTSA proposes revisions to 23 CFR 1300.10 to provide, according to
the BIL, that in order to apply for a highway safety grant under 23
U.S.C. Chapter 4 and Section 1906, a State must submit both a triennial
Highway Safety Plan and an annual grant application.

B. Triennial Highway Safety Plan (23 CFR 1300.11)

    The triennial HSP documents the State's planning for a three-year
period of the State's highway safety program that is data-driven in
establishing performance targets and selecting the countermeasure
strategies for programming funds to meet those performance targets. As
many commenters noted,\15\ the triennial HSP is intended by Congress to
focus on program-level information. As discussed below, NHTSA proposes
to require States to submit five components in the triennial HSP: (1)
the highway safety planning process and problem identification; (2)
public participation and engagement; (3) performance plan; (4)
countermeasure strategy for programming funds; and (5) performance
report.
---------------------------------------------------------------------------

    \15\ Brandy Nannini, CA OTS, CT HSO, GHSA, MN DPS, NY GTSC, WA
TSC, WI BOTS, and 5-State DOTs.
---------------------------------------------------------------------------

1. Due Date (23 CFR 1300.11(a))
    NHTSA incorporates the July 1 deadline set by the BIL. 23 U.S.C.
402(k)(2).
2. Highway Safety Planning Process and Problem Identification (23 CFR
1300.11(b)(1))
    As with previous HSPs submitted annually, the triennial HSP must
include the State's problem identification that will serve as the basis
for setting performance targets, selecting countermeasure strategies
and, later, developing projects. This ensures that the State's highway
safety program is data-driven, consistent with 23 U.S.C. 402(b)(1)(B).
NHTSA proposes to retain the requirements that the State describe the
processes, data sources and information used in its highway safety
planning and describe and analyze the State's overall highway safety
problems through analysis of data (i.e., problem identification, or
problem ID). These requirements are substantively unchanged from the
prior regulation except that NHTSA has added sociodemographic data as
an example of a data source that the State may wish to consider in
conducting problem ID. 23 CFR 1300.11(b)(1)(ii).
    The WA TSC commented that NHTSA will need to change the way it
evaluates States' problem ID in order to acknowledge factors that shape
human behavior outside of raw crash data. NHTSA agrees that data other
than crash data are valuable for State's problem ID, but does not agree
that NHTSA has limited the types of data States may use to conduct
problem ID so strictly. States are encouraged to utilize all data and
information sources to conduct problem identification. The WA TSC also
stated that raw crash data such as number of crashes and the outcomes
of those crashes are outside the control of the SHSO. NHTSA disagrees
with this premise. While States may not control all of the factors that
contribute to raw crash numbers, such as population or increased VMT,
State highway safety programs must be designed to account for those
factors and adjust as necessary in order to address the myriad other
factors that contribute to increases in traffic fatalities and
injuries. As the WA TSC also noted, States can and should submit data
in the triennial HSP that demonstrates that the State has conducted a
careful analysis of traffic safety problems in the State and then has
chosen strategies that are designed to address the specific behaviors
that form the root cause of those problems.
    NASEMSO and League of American Bicyclists recommended,
respectively, that States be required to include consideration of post-
crash care issues and perceptions of safety in bicycling and walking as
part of their problem identification and, therefore, in their
countermeasure strategies. NHTSA encourages States to consider the full
constellation of State highway safety problems. However, in order to
ensure that States have the needed flexibility to assess data to
determine the problems within their borders, the agency declines to
specify problem areas for consideration outside those mandated by
Congress.
    Drew Dawson recommended that NHTSA require States to provide the
strategy laying out how the State will continue regular data
assessments, including who will perform the analysis, what sources they
will consult, and at what intervals. NHTSA does not believe this is
necessary because States are already required to submit annual reports
that assess their progress in meeting performance targets. 23 CFR
1300.35.
3. Public Participation and Engagement (23 CFR 1300.11(b)(2))
    In BIL, Congress added a requirement that State highway safety
programs result from meaningful public participation and engagement
from affected communities, particularly those most significantly
impacted by traffic crashes resulting in injuries and fatalities. 23
U.S.C. 402(b)(1)(B). Relatedly, Title VI of the Civil Rights

Act of 1964 (or Title VI) prohibits discrimination on the basis of
race, color or national origin in any Federal program, including
programs funded with Federal dollars. Title VI requires that all
recipients of DOT financial assistance ensure that no person is
excluded from participation in, denied the benefits of, or otherwise
subjected to discrimination under any Federally-funded program or
activity nondiscrimination. As implemented through the U.S. Department
of Transportation Title VI Program Order (DOT Order 1000.12C), Title VI
requires, among other things, that all recipients submit a Community
Participation Plan. The purpose of the Community Participation Plan is
to facilitate full compliance with Title VI by requiring meaningful
public participation and engagement to ensure that applicants and
recipients are adequately informed about how programs or activities
will potentially impact affected communities, and to ensure that
diverse views are heard and considered throughout all stages of the
consultation, planning, and decision-making process. Because the public
participation and engagement required by BIL and the Community
Participation Plan required by Title VI have complementary goals, NHTSA
proposes to structure grant requirements so that States can meet both
requirements at the same time.
    NHTSA proposes to incorporate these statutory requirements into the
highway safety grant rule in three ways. First, NHTSA proposes a public
participation and engagement section in the triennial HSP that would
ensure States meet both requirements through a single submission. 23
CFR 1300.11(b)(2). NHTSA proposes to require that the triennial HSP
include a description of the starting goals and a plan for integrating
public engagement into the State's planning processes, a description of
the activities conducted and the outcomes of those activities, and a
plan for continuing public participation and engagement activities
throughout the three years covered by the triennial HSP. Second, in
order to ensure that the public participation and engagement that the
State conducts for the triennial HSP plays a meaningful role in the
choice and implementation of projects, not just at the planning stage,
NHTSA also proposes to require States to describe in the annual report
how the projects that were implemented were informed by the State's
public participation and engagement. 23 CFR 1300.35(b)(1)(iii).
Finally, in order to ensure that SHSOs have the necessary authority to
carry out these requirements, NHTSA proposes to add a requirement that
each State Highway Safety agency be authorized to foster meaningful
public participation and engagement from affected communities. 23 CFR
1300.4(b)(3).
    NHTSA received many comments about the BIL's requirement for
meaningful public participation in the States' highway safety grant
programs. Because they span multiple sections of the rule, NHTSA will
address all engagement-related comments here. MN DPS and GHSA both
stated their strong support for the requirement and were joined by
Brandy Nannini, CA OTS, and NY GTSC in calling for flexibility and for
NHTSA to take a long-term view for States' implementation of the
requirement. The NSC signaled support for the requirement by advising
NHTSA to encourage States to incorporate viewpoints of multiple
stakeholders in identifying key safety needs and countermeasures. GHSA
and NY GTSC noted that States are already including public
participation as part of their highway safety programs, but that each
State is doing so differently because they have different landscapes of
communities and differing staffing and funding resources. GHSA and NSC
both recommended that NHTSA allow States to carry out the required
public participation directly, through partner subrecipients, or as
part of a multidisciplinary effort run by the State DOT. The
Transportation Equity Caucus recommended that States create models to
transfer ownership of highway safety planning processes to communities
and neighborhoods. Other commenters recommended that NHTSA require
States to spend a specified amount of funds to carry out public
participation and engagement in areas with the most need, where a
certain percentage of fatalities or injuries take place, or in the
communities where safety programs are intended to be implemented. See
GHSA and anonymous commenter. NHTSA appreciates States' stated
commitment to public participation and recognizes that public
participation efforts are already underway in many States. With our
proposal, we seek to implement these statutory requirements in a manner
that reflects the importance of the requirement while recognizing
variations between States by focusing on State's public participation
planning and the impact of that participation on State programs and
projects. In reviewing a State's public participation planning and
outreach efforts in the triennial HSP, NHTSA will look to see if the
State made a concerted effort to identify and reach out to impacted
communities; however, we do not propose to require a specified funding
level. A State must use the problem identification process to ensure
that its most vulnerable, at-risk populations are identified and set
performance targets and countermeasure strategies for programming funds
accordingly. As long as a State is able to meet the requirements of the
triennial HSP and annual report, it may facilitate public participation
in the manner best suited to the needs of the State and its
communities.
    Commenters also provided input on how to measure State public
participation efforts. GHSA cautioned that States cannot compel
participation and asked NHTSA not to measure compliance by volume of
comments or engagement. Other commenters suggested that States be
required to report their public participation efforts, including: how
they advertised and facilitated public engagement opportunities, what
engagement took place, and the impact of that participation on the
State's program. See League of American Bicyclists and NSC. NHTSA does
not propose to require a specific form of public participation and
engagement, nor to require specified outcomes. Instead, as described
above, NHTSA proposes to require that the triennial HSP include a
description of the starting goals and plan for integrating public
engagement into the State's planning processes, a description of the
activities conducted and the outcomes of those activities, and a plan
for continuing public participation and engagement activities
throughout the three years covered by the triennial HSP. While NHTSA
does not propose to set a specified required outcome for a State's
public participation activities, the agency expects that if a State
does not achieve reasonable participation through the participation
plan described in the triennial HSP, it will use that experience to
inform its efforts for continuing public participation during the
period covered by the annual HSPs and into the next triennial HSP. In
addition, as described above, the agency proposes to require States to
describe in the annual report how their public participation efforts
informed the projects they implemented during the grant year.
    NHTSA received many comments about the need to provide funding for
BIL's increased public engagement requirements. GHSA noted that States
would need additional funding in order to carry out the required public
engagement efforts, while the National Safety Council recommended that
States

be allowed to compensate partners or trusted community organizations to
carry out public engagement work on their behalf. Many commenters also
observed that States would likely achieve better and more diverse
participation if they are able to compensate community members for
their participation and attendance costs. See League of American
Bicyclists, National Safety Council, Rebecca Sanders, and WA TSC. NHTSA
acknowledges that increased efforts require more resources from State
highway safety offices and that participation in public planning
processes may present costs in time and money for participants. Public
participation is fundamental to the workings of State governments, as
it is for the Federal government. Therefore, we would expect that
States have processes and procedures in place for conducting public
outreach and participation. The specifics of whether and how NHTSA
grant funds may be used to pay for these costs are highly fact specific
and implicate many different Federal laws and regulations. In general,
Federal grant funds may not be expended on activities required to
qualify for the grant. State laws, also, may impact these sorts of
expenditures. For example, Washington TSC noted in its comment that
Washington State has recently passed laws to remove the historical
prohibition against compensating the public for participation in State
processes. It is likely that other States still have such prohibitions.
Nothing in this proposed rule would dictate a specific determination
about whether these sorts of costs may be an allowable use of NHTSA
grant funds.
    Commenters provided several suggestions for States about how to
conduct their public participation efforts. NHTSA encourages States to
consider any and all methods when planning their public engagement
efforts. Suggestions included: ensuring that online tools are easy to
use (Mari Lynch), publicizing the planning process and explaining how
the public can provide input (Drew Dawson, League of American
Bicyclists), presenting at schools or other community gathering
locations (anonymous), widespread use of social media outlets and other
communication channels (NASEMSO), regular opportunities for local
information gathering (NSC), joining regional public health or EMS
authority meetings (Drew Dawson), and elevating the voices of non-
profits and representatives of marginalized groups in State committees
and advisory groups (NASEMSO). NASEMSO and an anonymous commenter also
recommended that States could increase community engagement through
disseminating easy to understand and compelling safety data, including
correlation of policies to data improvements.
    NHTSA received many comments suggesting non-traditional partners
that States should consider including in their planning processes.
Recommendations spanned from national to State to local and community
levels and are summarized below. NHTSA encourages States to consider
all of these groups as they plan their public participation and
engagement activities and as they implement their programs. NHTSA will
work to share effective means of increasing participation with States.
    The League of American Bicyclists and National Sheriffs'
Association both recommended using national stakeholder organizations
to advertise participation opportunities to their local members. The
League of American Bicyclists recommended focusing on national
organizations focused on equity and transportation safety. The National
Sheriffs' Association specifically recommended using themselves and the
International Association of Chiefs of Police to filter funding and
messaging down to the local level. Drew Dawson recommended that States
work with national-level 911 organizations.
    State-level partners recommended by commenters included State
agencies, such as transportation, public health, EMS, rural health,
economic development, and State law enforcement agencies. See Drew
Dawson, NASEMSO, NSC, Vision Zero Network. Drew Dawson also recommended
coordinating with the State agencies responsible for implementing the
U.S. Department of Housing and Urban Development's Community
Development Block Grants.
    The Vision Zero Network recommended that States prioritize local
needs, and suggested that they work with local transportation, health,
and policy organizations and community leaders. The League of American
Bicyclists also emphasized the importance of working collaboratively
with local community organizations, recommending that NHTSA require
States to get letters of support for work undertaken within local
communities. While NHTSA encourages collaboration with local community
groups and supports the Share to Local requirement described in more
detail later in this notice, it is beyond our authority to impose such
a requirement. An anonymous commenter recommended that States work with
local governments, which in turn should work with schools, community
centers, churches, and non-profits within their jurisdiction in order
to reach communities that may have less resources to interact directly
with the State government. Drew Dawson identified local Public Safety
Answering Points (PSAPs) and local or regional emergency medical
organizations as helpful partners. Finally, the NSC recommended that
States seek out existing local or regional task forces.
    Many commenters recommended that States build relationships with
affected communities beyond traditional partners, such as governmental
entities and public figures, in order to gain the benefit of lived
experiences. See League of American Bicyclists. Lorrie Walker and
Rebecca Sanders both noted that building capacity within the
communities that the highway safety program serves is necessary but
that it may take some time to see results. The NSC and Rebecca Sanders
both stressed the importance of collecting and considering community-
based lived experience in addition to existing traffic safety data.
Commenters identified a range of types of community members for States
to reach out to, including parish nurses, childcare workers, parent-
teacher associations, hospitals, physicians/surgeons, associations of
attorneys. See Drew Dawson, Lorrie Walker. The Transportation Equity
Caucus recommended that States work with community-based organizations,
including groups focused on civil rights, racial and social equity,
disability justice, mobility justice, public health, social services
and other groups led by affected demographics. Specific community
groups identified included communities of color, American Indians,
teens, and rural communities. The National Safety Council suggested
that States research active and trusted community organizations who are
part of the safe system of transportation.
    NHTSA supports and encourages States to reach out to and seek input
from a full and diverse range of traffic safety stakeholders, both
traditional and non-traditional. States should use all available
resources to engage with new stakeholders and increase community
engagement. NHTSA acknowledges that many States have already begun
working to increase engagement and build community partnerships, and
encourages them to continue those efforts. NHTSA will also work to
share best practices and effective strategies to increase community
engagement.

    The BIL also added a related but separate requirement that States
support data-driven traffic safety enforcement programs that foster
effective community collaboration to increase public safety. 23 U.S.C.
402(b)(1)(E). This provision is essential to ensuring that highway
safety programs carried out by law enforcement agencies are equitable
and community-based. NHTSA proposes to implement this statutory
provision by requiring States to discuss in the annual report the
community collaboration efforts that are part of the States' evidence-
based enforcement program. 23 CFR 1300.35(b)(2). GHSA recommended that
States be allowed to count their efforts in meeting the separate
requirement for meaningful public engagement in their triennial HSP in
order to show compliance with the community collaboration requirement
for enforcement programs. NHTSA disagrees. Congress created two
separate and independent requirements: a requirement for a State to
provide for a comprehensive, data-driven traffic safety program that
results from meaningful public participation (23 U.S.C. 402(b)(1)(B);
and a requirement that the State's highway safety program support data-
driven traffic safety enforcement programs that foster effective
community collaboration to increase public safety (23 U.S.C.
402(b)(1)(E)(i)). Collapsing the two requirements into the broader
meaningful public engagement requirement would undermine Congress'
intent that States address these as two separate requirements. As
described above, States have broad latitude in how to provide
meaningful public participation and engagement in the State traffic
safety program. It may be possible, though difficult, that some efforts
involved in the broader meaningful engagement may be specific enough to
be part of the required community collaboration in enforcement
programs. If a State is able to fulfill the requirements for both
regulatory provisions with the same activities, it may do so; but NHTSA
will evaluate the two statutory requirements separately.
4. Performance Plan (23 CFR 1300.11(b)(3)
    States have been using a performance-based planning process in
their highway safety plans for many years now. While some States were
using performance measures on a voluntary basis already, Congress
mandated the use of performance measures for all States in MAP-21 and
continued the requirements under the FAST Act. While the BIL separated
the planning process and the grant application into the triennial HSP
and annual grant application, respectively, it maintained the reliance
on performance measures as a fundamental component of State highway
safety program planning in the triennial HSP. The BIL maintains the
existing structure that requires States to provide documentation of the
current safety levels for each performance measure, quantifiable
performance targets for each performance measure, and a justification
for each performance target. However, the BIL now specifies that
performance targets must demonstrate constant or improved performance.
23 U.S.C. 402(d)(4)(A)(ii). Although the BIL makes no other changes to
the statutory text specifically related to performance measures, the
move from an annual to a triennial HSP presents some practical
implications for performance measures as well. NHTSA received many
comments on both changes, statutory and practical, and discusses them
in more detail below.\16\
---------------------------------------------------------------------------

    \16\ Brian Maguire, et. al recommended, in effect, that NHTSA
establish a performance-based framework, suggesting that NHTSA
require States to provide a link between funding and improvements in
safety in order to assess progress over time. As shown here, this is
already in effect.
---------------------------------------------------------------------------

    As a preliminary matter, instead of the annual performance measures
provided in the prior annual HSP, States now must provide performance
measures that cover the three-year period covered by the triennial HSP.
NHTSA proposes to allow States to set a single three-year target, with
informal annual benchmarks provided in the triennial HSP against which
they can assess progress in the annual report.
    The BIL provides that States must set performance targets that
demonstrate constant or improved performance and provide a
justification for each performance target that explains why the target
is appropriate and evidence-based. 23 U.S.C. 402(k)(4)(A)(ii) and
(iii). This is consistent with the NRSS, which sets an ambitious long-
term goal of reaching zero roadway fatalities by 2050. Transportation
performance management focuses agencies on desired outcomes, outlines
how to attain results, and clarifies necessary resources in the near-
term. It allows for transparent and open discussions about desired
outcomes and the direction an agency should take now. In an era of
increasing fatalities, it is vital that performance targets offer
realistic expectations that work toward the long-term goal of zero
roadway fatalities and provide a greater understanding of how safety
issues are being addressed. Several commenters \17\ argued that
requiring targets that show constant or improved performance is
contrary to the requirement that targets be appropriate and evidence
based. The WA TSC stated that States could set targets that demonstrate
constant or improved performance, but not for measures that are related
to outcomes that are outside the control of the State highway safety
office. As an example, WA TSC noted that raw numbers of fatalities and
injuries are impacted by changes in population and VMT. NHTSA disagrees
that targets should focus only on variables within the control of State
highway safety offices. Performance management is intended to refocus
attention on national transportation goals, increase the accountability
and transparency of the highway safety grant program, and improve
program decisionmaking through performance-based planning and
programming. Performance targets are inextricably tied to the
countermeasure strategies for programming funds that States describe in
their triennial HSPs. Targets should be developed to reflect the
outcomes that States should expect, based on the evidence available,
after implementing their planned programs. If, while setting its
performance targets, a State determines that its countermeasure
strategy for programming funds is not likely to yield constant or
improved performance, the State should consider different
countermeasure strategies or adjust funding levels.
---------------------------------------------------------------------------

    \17\ AASHTO, CA OTS, CT HSO, GHSA, MN DPS, NY GTSC, OR DOT, and
WI BOTS Patrol.
---------------------------------------------------------------------------

    Other commenters \18\ expressed support for the BIL's emphasis on
constant and improved performance, exhorting NHTSA to ensure that
States do not set performance targets that increase fatalities and
injuries. As the League of American Bicyclists points out, under the
Safe System Approach, redundancies are meant to ensure that even when
one component of a system fails, fatalities and injuries can still be
reduced. Rebecca Sanders recommended that NHTSA implement consequences,
such as reduced funding or directed spending, for States that do not
achieve performance targets. NHTSA does not have the authority to
withhold funds or direct State expenditure of funds for failure to
achieve a performance target. However, the BIL provides that the
State's annual grant application must include a description of the
means by which the State's countermeasure strategy for programming
funds was adjusted and

informed by the State's assessment of its progress in meeting its
targets in the most recent annual report. 23 U.S.C. 402(l)(1)(C)(iii).
NHTSA proposes to implement this requirement by requiring that all
States include either a narrative description of the means by which the
State's countermeasure strategy for programming funds was adjusted and
informed by the most recent annual report, or a written explanation of
why the State made no adjustments to the strategy for programming
funds. If a State determined in its most recent annual report that it
was on track to meet its performance targets, it may simply state that
fact. If a State determined that it was not on track to achieve its
performance targets, it would be required to explain why it is not
necessary to adjust the countermeasure strategy for programming funds
in order to meet its targets.
---------------------------------------------------------------------------

    \18\ League of American Bicyclists, NSC, Rebecca Sanders, Vision
Zero Network.
---------------------------------------------------------------------------

    AASHTO, CT HSO, GHSA and OR DOT expressed concern that the
requirement to set performance measures that demonstrate constant or
improved performance will cause States to have to set aggressive
performance targets and that States will face penalties if they fail to
meet aggressive targets. While Section 402 requires States to assess
the progress made in achieving performance targets in the annual report
(23 U.S.C. 402(l)(2)), and NHTSA is required to publicly release an
evaluation of State achievement of performance targets (23 U.S.C.
402(n)(1)), there are no monetary or programmatic penalties for failure
to achieve a performance target in the highway safety grant program.
The WA TSC commented that States that set a goal of zero traffic deaths
will not be punished with additional administrative burdens. The long-
term goal of zero traffic deaths is central to the NRSS and SSA. NHTSA
acknowledges and appreciates that many states would like to plan and
set targets aimed at that goal. We therefore encourage states to
thoughtfully consider targets for their triennial HSPs that keep this
long-term goal in mind while using a data-based approach based on
achievable targets in the short-term. Finally, AASHTO points out that
States may face monetary consequences under FHWA's Highway Safety
Improvement Program (HSIP) for failure to achieve a common performance
measure. However, as a point of clarification, States do not face a
monetary penalty under the FHWA's HSIP; they do, however, lose
flexibility to redirect safety funds to other programs. NHTSA does not
have discretion to undermine the statutory requirement that all
performance measures show constant or improved performance.
    Several commenters \19\ expressed concern that the new triennial
HSP framework created by the BIL will create inconsistencies with the
common measures that States also report annually to FHWA for the
HSIP.\20\ GHSA and the WI BOTS Patrol both recommended that NHTSA
require that the common measures be reported annually in the annual
application, rather than in the triennial HSP, to maintain alignment
with the HSIP. The League of American Bicyclists recommended that NHTSA
work with States to ensure the HSP is consistent with the HSIP,
including consistent performance measures and countermeasure
strategies. The BIL provides that performance measures are submitted
with the triennial HSP, so NHTSA does not have discretion to change
that. 23 U.S.C. 402(k)(4). However, the BIL also provides that States
may submit updates, as necessary, to the triennial HSP in the annual
grant application. NHTSA believes it would undermine Congress' intent
in providing for more long-term planning and performance management
under the highway safety grant program to allow States to frequently
adjust performance measures that are intended to be part of a triennial
highway safety planning process. Rather, States should adjust their
countermeasure strategies for programming funds if they determine that
they are not on track to meet their performance measures. However, the
agency recognizes the difficulty for States in having measures that are
subject to the disparate planning timeframes of the triennial HSP and
annual HSIP. Therefore, we propose to allow States to amend the common
measures in the annual grant application, but not the other measures.
1300.12(b)(1)(ii). AASHTO stated that the regulation should more
clearly vest target establishment authority in the States, arguing that
it is inconsistent to require NHTSA approval for performance targets
when 23 U.S.C. 150(d)(1) provides States with authority to establish
targets for the HSIP without FHWA approval. FHWA previously addressed
this comment in its final rule for the National Performance Management
Measures: Highway Safety Improvement Program, which set out the
parameters of the common performance measures.\21\ As the substance of
the relevant statutes has not changed, NHTSA incorporates the response
FHWA provided at that time. NHTSA emphasizes that the statute requires
States to coordinate their highway safety plan with the HSIP and that
States certify their compliance with this requirement in Appendix A.
See 23 U.S.C. 402(b)(F)(vi) and Appendix A. Further, NHTSA does not
have discretion to override the statutory requirement that NHTSA
approve or disapprove triennial HSPs, including the performance
measures contained therein. See 23 U.S.C. 402(k)(6).
---------------------------------------------------------------------------

    \19\ AASHTO, GHSA, OR DOT, and WI BOTS Patrol.
    \20\ Common performance measures are set out in 23 CFR
490.209(1) and 23 CFR 1300.11.
    \21\ 81 FR 13882, 13901 (Mar. 15, 2016).
---------------------------------------------------------------------------

    NHTSA received many comments related to the data that States use to
set and assess progress towards meeting performance measures. Several
commenters noted that States frequently do not have access to up-to-
date FARS or other data available when setting targets or at the time
of performance reporting and asked that States be allowed to use the
latest available data regardless of data source for these purposes. See
GHSA, Kathleen Hancock, NY GTSC. Though not specifically targeted to
the performance measures, the BIL also amended Section 402 to provide
that triennial HSPs, including performance measures, be based on the
information available on the date of submission. 23 U.S.C. 402(k)(4).
In addition, the BIL requires that States provide, in the annual
report, an assessment of progress made in achieving the performance
targets identified in the triennial HSP based on the most currently
available Fatality Analysis Reporting System (FARS) data. 23 U.S.C.
402(l)(2)(A). The OR DOT recommended that NHTSA allow States to use a
State data source, rather than FARS, for fatality data reporting.
Because the statute requires that States use FARS data for the annual
report, NHTSA does not have the authority to allow States to use
another data source for the appropriate measures. States may, however,
supplement their analysis by using FARS and other data sources.
However, FARS only provides comprehensive data related to fatal
injuries suffered in motor vehicle crashes; it therefore is not an
appropriate data source for non-fatality measures. As a result, NHTSA
proposes to require that States assess progress in their annual reports
using the most currently available data. 23 CFR 1300.35(a)(1). To
accurately assess progress, the State must consult the same data source
that was used to set the performance target. However, it may also look
to other data sources to

provide a fuller picture of current levels. Where a target, such as the
common fatality measures, requires the use of FARS data, States must
use the most currently available FARS data in the annual reports.
Similarly, States may supplement their analysis with non-FARS data, but
must at a minimum use the most currently available FARS data. Where
targets necessarily are based on other data sources, States must use
the most currently available data for that data source, but may
supplement with additional data.
    Several commenters provided feedback on other aspects of
performance measure data. WA TSC noted that since FARS data are
provided by NHTSA, States should not be required to report FARS data
back to NHTSA. However, the statute and the regulation require not just
data reporting, but analysis of the data. See 23 U.S.C. 402(l)(2)(A)
and 23 CFR 1300.35(a)(1). A State would be unable to assess its
progress in meeting FARS-based targets without reporting the FARS data.
NASEMSO recommended that States be required to provide historical data
covering a 3-to-5-year period prior to the period covered by the
triennial HSP. While NHTSA does not explicitly require States to
provide baseline data for performance measures, as a general matter,
baseline data will be a key part of State's performance target setting
and will usually be provided in the triennial HSP as part of the
justification for the target set by the State. WI BOTS recommended that
NHTSA allow States to set targets based on an average of the prior 4
years of FARS data plus State data in order to set a target percentage
as opposed to a hard number. The comment did not provide enough details
for NHTSA to be certain which target the commenter is referring to. In
general, with the exception of the required common and minimum
performance measures, States have flexibility to determine the
appropriate performance measure needed for their programs. Safe Kids
Worldwide suggested that States look to tangible events and metrics to
measure performance, including FARS data. Drew Dawson and NASEMSO
recommended that States consider use of NEMSIS and trauma registry data
in performance measures. In order to ensure consistency and to
facilitate a nationwide view of progress in traffic safety, the common
and minimum performance measures specify the type of data source that
States should use. However, for the other performance measures that
States select, based on problem identification, States may use any
available data source that is appropriate, including NEMSIS and trauma
registry data.
    Many commenters \22\ requested that NHTSA and GHSA work together to
update the minimum performance measures that were developed in 2008
\23\ in accordance with 23 U.S.C. 402(k)(5). In contrast, the 5-State
DOTs stated that they do not believe any new performance measures are
required. Commenters \24\ also provided specific advice and
recommendations for measures they believe should be considered,
deleted, or amended. The current action does not propose to revise the
minimum measures; however, NHTSA agrees with the majority of commenters
who believe that the minimum performance measures need to be
reconsidered and updated. That said, NHTSA does not believe that it is
feasible to undertake the required collaboration to develop new
performance measures in time for States to use them in their first
triennial HSP. In addition, NHTSA believes that being able to use
familiar performance measures will reduce the burden on States as they
complete their first triennial HSP cycle under BIL. NHTSA intends to
convene meetings with stakeholders and to collaborate with GHSA to
update the minimum performance measures well in advance of the FY 2027
triennial HSP submission date. NHTSA will bring all of the comments
received under this rulemaking into that effort and will seek further
input from these and other groups at that time. As we did previously,
NHTSA commits to publish the proposed minimum performance measures in
the Federal Register for public inspection and comment. For the
purposes of the FY 24 triennial HSP, NHTSA would like to note that
States are not limited to only the minimum performance measures. States
are strongly encouraged to develop additional measures, consistent with
23 CFR 1300.11(b)(3)(iii), for problems identified by the State that
are not covered by existing minimum performance measures. Those
measures may cover issue areas such as equity, injury data, SHSO output
measures, and more.
---------------------------------------------------------------------------

    \22\ CA OTS, GHSA, MN DPS, NASEMSO, NY GTSC, and WA TSC.
    \23\ ``Traffic Safety Performance Measures for States and
Federal Agencies'' (DOT HS 811 025) (Aug. 2008).
    \24\ Brian McGuire, Drew Dawson, IAEMSC, League of American
Bicyclists, NASEMSO, NSC, NY GTSC, Rebecca Sanders, Safe Kids
Worldwide, Safe Routes Partnership, TEC, Vision Zero Network, and WA
TESC.
---------------------------------------------------------------------------

    Finally, OR DOT recommended that NHTSA reconcile its definition for
``vulnerable road user'' with the definition used by FHWA. NHTSA does
not provide, nor does it propose, a definition for ``vulnerable road
user'' in the regulation. As such, there is no contradiction with any
definitions provided by FHWA. For purposes of the highway safety grant
program, States have flexibility to define ``vulnerable road users''
based on the highway safety challenges identified by their problem ID.
5. Countermeasure Strategy for Programming Funds (23 CFR 1300.11(b)(4))
    The BIL requires each State to submit, as part of the triennial
HSP, a countermeasure strategy for programming funds for projects that
will allow the State to meet the performance targets set in the
triennial HSP, including data and analysis supporting the effectiveness
of the proposed countermeasures and a description of the Federal funds
that the State plans to use to carry out the strategy. 23 U.S.C.
402(k)(4)(B-D). NHTSA proposes to incorporate this requirement into the
regulation by requiring States to provide, for each countermeasure
strategy: identification of the problem ID that the countermeasure
strategy addresses and a description of the link between the problem ID
and the countermeasure strategy; a list of the countermeasures that the
State will implement as part of the countermeasure strategy;
identification of the performance targets the countermeasure strategy
will address with a description of the link between the countermeasure
strategy and the target; a description of the Federal funds the State
plans to use; a description of the considerations the State will use to
determine what projects to fund to implement the countermeasure
strategy; and a description of the manner in which the countermeasure
strategy was informed by the uniform guidelines issued by NHTSA in
accordance with 23 U.S.C. 402(a)(2).
    GHSA recommended that NHTSA amend the definition of countermeasure
strategy in order to clarify that it includes innovative
countermeasures, and to explain how States can justify the use of
innovative countermeasures. While NHTSA has amended the definition of
countermeasure strategy for programming funds (see definition section
for explanation), that definition does not incorporate the
considerations GHSA recommends. Instead, NHTSA proposes to make these
suggested clarifications directly in the regulatory

text of this requirement. As a preliminary matter, NHTSA would like to
clarify the distinction between a countermeasure and a countermeasure
strategy for programming funds, which consists of a combination of
countermeasures along with information on how the State plans to
implement those countermeasures, such as funding amounts, subrecipient
types, locations, etc. Specifically, NHTSA proposes to require that,
for each countermeasure that a State plans to implement as part of a
countermeasure strategy, the State provide data and analysis supporting
the effectiveness of the countermeasure. NSC recommended that NHTSA
require States to provide justification for use of established
countermeasures in order to reflect evolving knowledge. However, NHTSA
believes that requiring States to provide independent justification for
all countermeasures, even ones that have been proven over time, is
burdensome without any added gain. Therefore, the agency proposes that
for countermeasures that are rated 3 or more stars in Countermeasures
That Work, the State need only provide a citation to the countermeasure
in the most recent edition of that document. For all other
countermeasures including innovative countermeasures, States must
provide justification supporting the potential of the countermeasure
strategy, which may include research, evaluation, or substantive
anecdotal evidence. See 23 CFR 1300.11(b)(4)(ii). The WA TSC suggests
that NHTSA accept the SSA principles as a justification for choosing
countermeasure strategies in the triennial HSP. While NHTSA agrees that
the SSA principles are great guiding principles for a State to use in
selecting countermeasures, NHTSA notes that principles do not qualify
as data and the data analysis required to justify the use of a
countermeasure.
    GHSA noted that the BIL removed the previous requirement that
States have a traffic safety enforcement program (TESP) (previously 23
U.S.C. 402(b)(1)(E)), and requested that NHTSA remove the related
regulatory requirement that the HSP include a specific TSEP section
(current 23 CFR 1300.11(d)(5)). Instead, GHSA recommended that States
be required only to provide an assurance in Appendix A that the
triennial HSP provides for sustained enforcement, and to provide any
required information for Section 405 grant applications. NHTSA agrees
that it is not necessary to require a dedicated section of the
triennial HSP to cover the TSEP. However, we disagree that an assurance
is sufficient for States to meet the requirement for States to have a
traffic safety enforcement program. The BIL requires that a State
program support data-driven traffic safety enforcement programs that
foster effective community collaboration to increase public safety. 23
U.S.C. 402(b)(1)(E). NHTSA believes that this statutory requirement
represents a step forward in ensuring equitable outcomes in traffic
enforcement. While NHTSA agrees that a separate section of the
triennial HSP is not required to satisfy this requirement, the agency
will not approve a triennial HSP that does not include such a traffic
safety enforcement program as part of its countermeasure strategies.
The flexibility allowed by removing the separate section requirement
will allow States to structure countermeasure strategies that rely on
enforcement as only one part of a multi-countermeasure strategy. In
recognition that community collaboration efforts may depend on the
specific enforcement projects that States implement, NHTSA proposes to
require States to discuss the community collaboration efforts that were
conducted as part of their evidence-based enforcement programs in the
annual report, rather than in the triennial HSP. See also the
discussion about the annual report, below.
    GHSA also pointed out that the BIL removed the requirement to
describe non-Federal funds that the State intends to use to carry out
countermeasure strategies in the triennial HSP. NHTSA has drafted
proposed text accordingly.
    WA TSC recommended that NHTSA adopt a model of behavior change for
State countermeasure strategies, by requiring States to create a theory
of change for each countermeasure submitted, including a clear
statement of assumptions and a description of how the chosen strategy
will influence public behavior. The League of American Bicyclists
recommended that NHTSA use the triennial HSP to implement the Safe
Systems Approach by promoting the use of the rubric presented by GHSA
in its report titled ``Putting the Pieces Together: Addressing the Role
of Behavioral Safety in the Safe System Approach.'' While NHTSA does
not endorse any specific strategies over others, the agency supports
States thinking outside of the box and encourages States to work
together to identify opportunities to learn from each other and share
new or innovative ideas. NHTSA will also work with states to identify
strategies that incorporate the Safe Systems Approach and to facilitate
the sharing of innovative strategies among states.
6. Performance Report (23 CFR 1300.11(b)(5))
    The BIL requires that the triennial HSP include a report on the
State's success in meeting its safety goals and performance targets set
forth in the most recently submitted highway safety plan. NHTSA has
incorporated this statutory requirement into the proposed regulatory
text, adding that the report must contain the level of detail provided
in the annual report. See 23 CFR 1300.11(b)(5). The agency's intent in
doing so is to foster connection between the triennial HSP and the
annual reports. We also believe that this will reduce burdens on States
by enabling them to import relevant analysis from the annual reports
into the triennial HSP and vice versa. So, for example, the FY27
triennial HSP (due July 1, 2026) would be able to incorporate the
assessment from the FY24 and FY25 annual reports that were submitted in
January 2025 and 2026, respectively, and would include a partial
assessment for FY26. NHTSA recognizes that the triennial HSP is due
prior to the end of the last fiscal year covered by the prior triennial
HSP and will therefore not expect the assessment for the final fiscal
year to cover the entire year. The State could then use the partial
assessment provided in the FY27 HSP as a starting point to develop its
assessment in the FY26 annual report (due January 2027). For the FY24
triennial HSP, NHTSA only expects analysis of the State's progress
towards meeting the targets set in the FY23 HSP.
7. Review and Approval Procedures (23 CFR 1300.11(c))
    The BIL provides that NHTSA must review and approve or disapprove a
State's triennial HSP within no more than 60 days. It further provides
that NHTSA may request a State to provide additional information needed
for review of the triennial HSP and may extend the deadline for
approval by no more than an additional 90 days as a result. The BIL
further sets out a requirement that States respond to any requests for
additional information within 7 business days of receiving the request.
NHTSA proposes to adopt this language in the regulation at 23 CFR
1300.11(c). This is consistent with GHSA's request that NHTSA do so.
    The BIL retained the previous statutory approval and disapproval
requirements. NHTSA proposes to retain the regulatory provisions
incorporating those requirements with only one amendment. In order to
meet the approval deadline, NHTSA proposes to require that where NHTSA

disapproves a triennial HSP, States must resubmit a triennial HSP with
any necessary modifications within 30 days from the date of
disapproval. 23 CFR 1300.11(c)(4).

C. Annual Grant Application (23 CFR 1300.12)

    The annual grant application provides project level information
about the State's highway safety program and demonstrates alignment
with the most recent triennial HSP. NHTSA proposes to require the
following 4 components be provided in the State's annual grant
application: (1) updates to the triennial HSP (for the second and third
year annual grant applications); (2) project and subrecipient
information; (3) grant application for section 405 and 1906 grant
programs; and (4) certifications and assurances.
1. Due Date (23 CFR 1300.12(a))
    The BIL allows NHTSA to set the due date for the annual grant
application, subject to the requirement that the deadline must enable
NHTSA to provide the grants early in the fiscal year. See 23 U.S.C.
402(l)(1)(B) and 23 U.S.C. 406(d)(2). Additionally, the statute
provides that NHTSA must review and approve or disapprove annual grant
applications within 60 days. 23 U.S.C. 402(l)(1)(D). GHSA recommended
that the due date for the annual grant application be different than
the July 1 deadline for the triennial HSP, noting that many States do
not have project information by July 1. GHSA recommended that NHTSA set
a due date of August 31 in order to align with the due date for HSIP
annual reports. NHTSA agrees that there should be separate deadlines
for the annual grant application and the triennial HSP, in part to
lessen the burden on States during the years when both submissions are
required. However, NHTSA would not be able to complete approval or
disapproval of applications submitted on August 31 until October 30,
which does not allow NHTSA to meet the statutory requirement to provide
grant funds as early in the fiscal year as possible. NHTSA therefore
proposes a deadline of August 1 for States' annual grant applications.
23 CFR 1300.12(a)
2. Updates to Triennial HSP (23 CFR 1300.12(b)(1))
    The BIL provides that States must include, in their annual grant
applications, any updates necessary to any analysis in the State's
triennial HSP. 23 U.S.C. 402(l)(1)(C)(i). Separately, the BIL requires
States to include a description of the means by which the strategy of
the State to use grant funds was adjusted and informed by the previous
annual report. 23 U.S.C. 402(l)(1)(C)(iii). Because the countermeasure
strategy referred to here is part of the triennial HSP, NHTSA proposes
to group these two statutory requirements into one requirement.
Accordingly, NHTSA proposes that, at a minimum, States must provide a
description of the means by which the strategy for programming funds
was adjusted and informed by the most recent annual report, or an
explanation of why the State made no adjustments. Where a State
determined, in its annual report, that it was on track to meet all
performance targets, it need merely briefly state that fact. However,
in order to give weight to Congress' intent, NHTSA will require any
State that is not on track to meet all performance targets to either
explain how it will adjust the strategy for programming funds or
explain why it is not doing so.
    In addition, NHTSA proposes to specify allowable updates related to
performance measures. As described more fully in the performance
measures section, above, as a general rule, performance measures must
be set in the triennial HSP and remain the same throughout the three
years covered by the HSP. States can then adjust their countermeasure
strategy for programming funds in order to ensure that they remain on
track to meet those performance measures. However, NHTSA recognizes
that in some cases, a State may identify new highway safety problems
during the triennial cycle. In that case, a State may wish to update
its analysis to provide new problem ID, with a new performance target
and corresponding countermeasure strategy for programming funds. The
need for new (or annual) performance targets may additionally arise as
a result of the State's application for a motorcyclist safety grant
under Section 1300.25. For these reasons, NHTSA proposes to allow
States to add new performance measures. Additionally, as described
above, NHTSA recognizes the difficulty for States in setting common
performance measures with the three year performance measures required
for NHTSA's triennial HSP and the annual performance measures required
for FHWA's HSIP. As a result, NHTSA proposes to allow States to amend
common performance measures. States may not amend any other performance
measures, but instead, should consider adjustments to countermeasure
strategies for programming funds to meet the targets set.
    GHSA stated that the statute provides that the State, not NHTSA,
determines what additional analysis might be necessary. NHTSA disagrees
with GHSA's interpretation. The statute is silent as to who determines
what additional analysis is necessary. Further, the statute requires
NHTSA to approve or disapprove of a State's annual grant application in
part on the basis of whether it demonstrates alignment with the
approved triennial HSP. 23 U.S.C. 402(l)(1)(A)(i). NHTSA will not
approve an annual grant application that is inconsistent with the
approved triennial HSP.
3. Project and Subrecipient Information (23 CFR 1300.12(b)(2))
    The BIL requires States to submit, as part of their annual grant
application, identification of each project and subrecipient to be
funded by the State using grants during the fiscal year covered by the
application. The statute further provides that States may submit
information for additional projects throughout the grant year as that
information becomes available. See 23 U.S.C. 402(l)(C)(ii).
    GHSA and WI BOTS Patrol both requested that NHTSA commit to not
performing granular review of projects on the merits. GHSA stated that
States have expressed frustration in the past with NHTSA approving
programs or planned activities in the HSP and then later disapproving
projects after the project agreement has been signed. They argued that
States should be able to rely on NHTSA's regulatory decisions. GHSA
argued that NHTSA should use the project level information provided in
the annual grant application for financial management, transparency, or
program analysis, not for administratively burdensome preapproval. GHSA
further stated that, rather than a front-end burden to preapprove State
projects, NHTSA should allow States more flexibility to implement
compliant activities and that States should face consequences for non-
compliance. When approving the annual grant application, NHTSA is
looking to see whether the State's submitted projects are sufficient to
reasonably carry out the countermeasure strategies in the State's
triennial HSP, as well as checking for high-level regulatory compliance
issues such as proper funding source. NHTSA review and approval of
annual grant applications, similar to our current approval of annual
HSPs, does not equate to approval of all projects or activities listed
in the application. GHSA is correct in stating that NHTSA approval of
the annual grant application should not and does not conflate with
specific approval of projects. States have an independent obligation to
expend

grant funds in accordance with Federal grant requirements. And, because
NHTSA does not review and approve all projects, NHTSA may find during
grant program oversight that a project that is listed in an approved
annual grant application is not allowable in full or in part. That
said, if a reviewer notes an obviously unallowable or questionable
project, the reviewer may raise that issue to the State at that time in
order to avoid the State continuing with a project that may later be
disallowed.
    NHTSA proposes to require States to submit the following
information in order to satisfy the statutory requirement to identify
projects and subrecipients: project name and description, project
agreement number, subrecipient(s), Federal funding source(s), amount of
Federal funds, eligible use of funds, identification of P & A costs,
identification of costs subject to Section 1300.41(b), and the
countermeasure strategy that the project supports. 23 CFR 1300.12(2)
These proposed requirements are intended to ensure that NHTSA is able
to understand whether the identified projects are sufficient for the
State to carry out the countermeasure strategies in the triennial HSP,
to identify projects against later submitted vouchers, and to meet
statutory transparency requirements. GHSA recommended that NHTSA be
guided, and limited by, the project information required for project
agreements in the OMB Uniform Administrative Requirements at 2 CFR
200.332(a)(1). GHSA specifically recommended a list of signed project
agreements with subrecipient identification, program area
classification, project agreement number, amount of federal funds by
funding source, and eligible use of funds. NHTSA agrees that the
Uniform Administrative Requirements are a valuable source for
identifying useful information and proposes to include all of the
information suggested by GHSA. The WA TSC recommended providing a link
to the countermeasure strategy that the project supports. NHTSA agrees
and proposes to include that in the proposed regulation.
    The WA TSC also advised NHTSA not to use zip codes as a measure for
identifying high priority areas. The WA TSC stated that it would be
challenging to account for zip codes for efforts conducted by statewide
entities. NHTSA believes that zip codes and other identifying location
information are a valuable part of a project description and help
ensure that States are implementing programs in the areas that are
identified by the State's problem ID. However, NHTSA recognizes that
there are many grant-funded activities that are Statewide or, like data
system projects, have no physical location. Therefore, NHTSA proposes
to include zip codes as an example of information that may be provided
as part of a project description, but does not require it for all
projects. See 23 CFR 1300.12(b)(2)(i).
    Brian Maguire, et. al recommended that NHTSA require States to
provide the dollar amount of funding dedicated to each of the five
objectives of the NRSS, particularly post-crash care. NHTSA believes
that such a parsing would be too burdensome and would not provide
sufficient benefit as dollar value, alone, does not align with safety
improvements.
    The Transportation Equity Council recommended that, in order to
facilitate comparison, NHTSA provide a sample list of organization and
use of fund types that States should include as project information.
NHTSA agrees that such a list is useful. Currently, States use
categories provided in the Grants Tracking System to identify eligible
use of funds. NHTSA also proposes examples of subrecipient types to be
provided in 23 CFR 1300.12(b)(2)(iii).
    Finally, GHSA notes that the statute allows states to provide
project information throughout the grant year. As noted in 23 CFR
1300.12(d), NHTSA intends to implement this at 23 CFR 1300.32 and will
discuss the amendment process and comments in more detail there.
4. Section 405 and Section 1906 Racial Profiling Data Collection Grant
Applications (23 CFR 1300.12(b)(3) and Appendix B)
    The BIL requires States to provide the application for the Section
405 and Section 1906 grants as part of the annual grant application. 23
U.S.C. 402(l)(1)(C)(iv). As in the past, NHTSA incorporates the
requirements for the Section 405 and Section 1906 grants in subpart C
and appendix B of part 1300. See 23 CFR 1300.12(b)(3). The specific
requirements and comments for the national priority safety program and
racial profiling data collection grants are discussed in more detail in
the relevant sections, below.
5. Certifications and Assurances (23 CFR 1300.12(b)(4) and Appendix A)
    As under MAP-21 and the FAST Act, NHTSA continues the requirement
for States to submit certifications and assurances for all 23 U.S.C.
Chapter 4 and Section 1906 grants, signed by the Governor's
Representative for Highway Safety, certifying the annual grant
application contents and providing assurances that the State will
comply with applicable laws and regulations, financial and programmatic
requirements and any special funding conditions. 23 CFR 1300.12(b)(4).
The certifications and assurances are provided in appendix A to part
1300. NHTSA has proposed general updates to the certifications and
assurances in appendix A to reflect current Federal requirements.
Specifically, NHTSA has updated the Nondiscrimination certifications to
reflect DOT Order 1050.2A, ``DOT Standard Title VI Assurances and Non-
Discrimination Provisions.'' NHTSA also added a certification on
conflict of interest, consistent with the requirement in 2 CFR 200.112.