[Federal Register Volume 88, Number 24 (Monday, February 6, 2023)]
[Rules and Regulations]
[Pages 7780-7832]
[FR Doc No: 2023-01819]

Vol. 88

Monday,

No. 24

February 6, 2023

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; Final Rule

Federal Register / Vol. 88 , No. 24 / Monday, February 6, 2023 /
Rules and Regulations

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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: Final rule.

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SUMMARY: This final rule makes changes and clarifications to the
revised uniform procedures implementing State highway safety grant
programs in response to comments received on the notice of proposed
rulemaking published September 15, 2022.

DATES: This final rule is effective on March 8, 2023.

FOR FURTHER INFORMATION CONTACT:
    For program issues: Barbara Sauers, 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. Summary of the Notice of Proposed Rulemaking
III. Public Comments on the Notice of Proposed Rulemaking
IV. General Provisions
V. Triennial Highway Safety Plan and Annual Grant Application
VI. National Priority Safety Program and Racial Profiling Data
Collection
VII. Administration of Highway Safety Grants, Annual Reconciliation
and Non-Compliance
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\ Estimates for
the first three quarters of 2022 are bleak: an estimated 31,785 people
died in motor vehicle crashes during this period.\2\ Behind each of
these numbers is a life tragically lost, and family and friends left
behind. The crisis is both urgent and preventable. The third quarter of
2022 shows promise, representing the second straight quarterly decline
in fatalities after seven consecutive quarters of year-to-year
increases. We need to build on the declining trends and work to ensure
safer roads for everyone.
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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 (CrashStats 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,
December). Early estimates of motor vehicle traffic fatalities for
the first 9 months (January-September) of 2022 (CrashStats
Brief Statistical Summary. Report No. DOT HS 813 406). National
Highway Traffic Safety Administration. Available at https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813406.
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    NHTSA is redoubling our safety efforts and is asking our State and
local 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. The
highway safety grants implemented in today's action fit within a
broader framework involving many stakeholders working synergistically
across many programs. We encourage States to view their triennial
Highway Safety Plans in the context of the National Roadway Safety
Strategy and the Safe System Approach discussed later in this document
in response to comments.
    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 legislation
significantly changed the application structure of the grant programs
that were in place under prior DOT authorizations, 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 Grants, State Traffic Safety
Information System Improvements Grants, and Impaired Driving
Countermeasures Grants;
     Occupant Protection Grants--Expanded allowable uses of
funds and specified that at least 10 percent 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 (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 (specifies three ways for a State to
qualify) and amended allocation formula;
     24-7 Sobriety Programs Grants--Amended program definition
and allocation formula;
     Distracted Driving Grants--Amended definitions, changed
allocation formula, and amended requirements for qualifying laws;
     Motorcyclist Safety Grants--Added an eligibility criterion
(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 Grants--Established new grant;
and
     Driver and Officer Safety Education Grants--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
grant using assurances.

    As in past authorizations, the BIL requires NHTSA to implement the
grants pursuant to rulemaking.

II. Summary of the Notice of Proposed Rulemaking

    On April 21, 2022, the agency published a notification of public
meetings and request for comments (RFC). 87 FR 23780. NHTSA held
virtual public meetings on May 2, May 4, and May 5, 2022, and accepted
written comments submitted through May 23, 2022. Twenty-three people
provided oral comments at the public meetings, and 55 written comments
were submitted to the docket at regulations.gov. NHTSA also added three
letters to the docket that were sent directly to the agency prior to
the RFC.
    On September 14, 2022, NHTSA published a notice of proposed
rulemaking (NPRM), proposing regulatory language to implement the BIL
provisions and addressing comments received at the public meetings and
in response to the RFC. 87 FR 56756. It set forth the application,
approval, and administrative requirements for all 23 U.S.C. Chapter 4
grants and the Section 1906 grants. 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 proposed in the NPRM, each State would submit
for NHTSA approval a triennial Highway Safety Plan (``triennial HSP'')
that identifies highway safety problems, describes the State's public
participation and engagement efforts, 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 would 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 proposed to reorganize and rewrite subpart B of part 1300 and 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, the NPRM proposed
adopting the statutory language with limited changes. The agency also
proposed amendments to align the application requirements for all
Section 405 and Section 1906 grants with the new triennial HSP and
annual grant application framework.
    Finally, the NPRM proposed limited changes to administrative
provisions to accommodate the triennial framework and address changes
made by revisions to the Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards, 2 CFR part 200.

III. Public Comments on the Notice of Proposed Rulemaking

    In response to the NPRM, the following submitted comments to the
public docket on www.regulations.gov: American Association of State
Highway and Transportation Officials (AASHTO); American Association of
Motor Vehicle Administrators (AAMVA); Coalition of Ignition Interlock
Manufacturers (CIIM); Connecticut Highway Safety Office (CT HSO);
Delaware Office of Highway Safety (DE OHS); Foundation for Advancing
Alcohol Responsibility (Responsibility.org); Governor's Highway Safety
Association (GHSA); Haas Alert; League of American Bicyclists (League);
Maine Bureau of Highway Safety (MeBHS); Massachusetts Office of Grants
and Research, Highway Safety Division (MA OGR); Missouri Department of
Transportation (MoDOT); Mitchell Berger; Minnesota Department of Public
Safety (MN DPS); National Association of State 911 Administrators
(NASNA); National EMS Management Association (NEMSMA); Nevada Office of
Traffic Safety (NV OTS); Pamela Bertone; Tennessee Highway Safety
Office (TN HSO); Wyoming Department of Health, Office of Emergency
Medical Services (WY OEMS); joint submission by the Departments of
Transportation of Idaho, Montana, North Dakota, South Dakota and
Wyoming (5-State DOTs); and two anonymous commenters. Eight of these
commenters (5-State DOTs; AASHTO; CT HSO; DE OHS; NV OTS; MeBHS; MoDOT;
and MN DPS) expressed general support for GHSA's comments.
    In this preamble, NHTSA addresses all comments and identifies any
changes made to the NPRM's regulatory text.\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\ Two commenters submitted comments that are outside the scope
of this rulemaking; these comments covered infrastructure and road
design, and a ban on all-terrain vehicles. 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 about overarching aspects of highway safety that cannot be tied to a
single regulatory provision. Those comments are discussed below.

A. Rulemaking Process

    Multiple commenters \4\ expressed appreciation for NHTSA's shared
commitment to completing this rulemaking in an expedient manner. They
explained that States need time to integrate the new requirements into
their highway safety planning for FY24.
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    \4\ AAMVA, AASHTO, GHSA, MN DPS, and TN HSO.
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    Several commenters \5\ repeated their comments from the RFC,
broadly reiterating that NHTSA should ensure fidelity to the spirit and
letter of Congressional directives, minimize the administrative burden
on States, and provide greater flexibility in the use of funds. They
explained that unnecessary administrative burdens shift States' focus
away from program delivery and discourage subrecipient participation.
The CT HSO further argued that burdens imposed by the proposed
regulation would deprive governors of their prerogative to set roadway
safety policy within their States. HAAS Alert noted that small towns
are frequently

underserved when it comes to receiving transportation funding and
encouraged NHTSA to consider the administrative burdens on those areas
when determining grant requirements.
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    \5\ AASHTO, AAMVA, DE OHS, GHSA, MN DPS, MoDOT, and 5-State
DOTs.
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    It is not our intention to impose unnecessary administrative
burdens on States or their subrecipients, and we have amended and
streamlined several areas of this rulemaking in response to specific
comments received. The agency's task is to promulgate a regulation that
will implement the statutory requirements for the highway safety grant
program. We address specific comments about burden in the sections that
follow but note that, as a Federal awarding agency, we have a
responsibility to ensure that Federal grant funds are spent for the
purposes Congress specifies and consistent with all legal requirements,
including the Section 402 and 405 statutory text and other Federal
grant laws and regulations. Our intent is to impose reasonable
administrative requirements to ensure that recipients of Federal funds
adhere to applicable legal requirements that are consistent with our
responsibilities as a steward of taxpayer funds.
    Finally, GHSA and the MoDOT requested that NHTSA provide a red-
lined or track changes copy of the regulatory text so that States can
more easily see the changes made by this rule. NHTSA appreciates the
importance of ensuring that States are well-versed on the changes to
the rule and that they understand the impacts of those changes and
their implications for applications and program management. Ensuring
that understanding is, in fact, the precise purpose and goal of this
preamble and of the full exposition of the regulatory text that
follows. We encourage all States to embrace this document in its
entirety. States are responsible for complying with the entire rule--
not just with the specific changes made in this rulemaking. In our
view, it is important and instructive to read all of the rule anew, as
a red-lined version would underemphasize important context necessary to
assist in planning and program implementation. For example, in some
cases, regulatory text may remain the same but have a different meaning
or impact within the new triennial framework or due to other BIL-
related nuances. NHTSA is committed to providing States with ongoing
training, guidance and technical assistance as they work to implement
the changes made in the BIL, as carried out through this regulation.

B. Guidance

    NHTSA received several comments stating the importance of and need
for clear guidance on various aspects of the highway safety grant
program. Some of those comments relate to specific grant programs and
will be discussed in the relevant section of the preamble. The DE OHS
stressed the importance of consistent guidance so that States can rely
on the same information. The League of American Bicyclists encouraged
NHTSA to share information about programs and State practices and
identified several specific guidance documents published by NHTSA, FHWA
and DOT that it would like the agency to review and update. NHTSA
recognizes that some existing guidance may require modification or
rescission 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 these
commenters, as well as the comments received in response to the RFC, in
mind at that time.

C. Equity

    NHTSA received comments stressing the importance of equity in
traffic safety programs. Given the importance of the topic and
thoughtfulness of the comments, here we summarize and briefly respond
to all comments we received relating to equity.
    The League of American Bicyclists expressed appreciation for
NHTSA's commitment to and discussions about equity and looked forward
to seeing the continued results of these efforts. The League of
American Bicyclists also requested that NHTSA provide definitions and
examples of ``centering equity'' and ``equitable enforcement.'' NHTSA
strongly supports the policies and commitment to equity laid out in
Executive Order 13985, Advancing Racial Equity and Support for
Underserved Communities Through Federal Government, and is committed to
fulfilling our responsibilities under the Order and to following its
principles. The highway safety grant program plays an important role;
the meaningful public participation and engagement requirements
implemented in this rulemaking form a critical part of State planning
to help ensure that equity is centered in the grant program. Under BIL,
States are expected to engage affected and potentially affected
communities during their triennial HSP planning process and throughout
the life of the grant, including through particular emphasis on
underserved communities and communities over-represented in the data.
NHTSA will offer technical assistance to States on how to meaningfully
engage communities to inform traffic safety programs that promote safe
and accessible roadways, all while reducing transportation-related
disparities, adverse community impacts, and health effects through
their traffic safety programs.
    The CT HSO requested that NHTSA allow States to use alternative
methods to fund equity partnerships that do not involve reimbursement-
based funding arrangements, noting that many potential partners are
unable to participate in the highway safety grant program because they
do not have sufficient funds available to cover costs prior to
reimbursement. NHTSA encourages States to think creatively about ways
to support the participation of non-traditional traffic safety
partners, including equity partnerships, consistent with Federal grant
rules. Federal grant rules allow for advance payments in some
situations. NHTSA commits to issuing guidance on advance and
reimbursement-based payments in State highway safety grant programs. In
addition, as part of our goal to support the inclusion of equity in the
highway safety program, NHTSA will work closely with States and
national organizations to brainstorm new and creative ways to encourage
the involvement of new and diverse groups in the highway safety grant
program.
    The League of American Bicyclists reiterated its prior comment to
the RFC, expressing concern about NHTSA's continued support for the
Data-Driven Approaches to Crime and Traffic Safety (DDACTS) program. It
noted that DDACTS combines traffic safety and other law enforcement
data, making traffic-related activities difficult to separate from
ineligible activities because of difficulties in determining whether a
traffic stop is traffic-related or merely pretextual. As NHTSA
explained in the NPRM, 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. NHTSA will

continue to evaluate DDACTS to ensure that it promotes only enforcement
that is implemented fairly and equitably.
    NHTSA also notes that DDACTS is not part of NHTSA's highway safety
grant program, and not all DDACTS-related activities are eligible uses
of NHTSA's grant funds. NHTSA's grant funds may only be used for
traffic safety activities; any other law enforcement purpose is not
eligible. Further, as we stated previously, 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.
    Finally, the League of American Bicyclists thanked NHTSA for
responding to its prior comments on the discriminatory outcomes of
countermeasures included in NHTSA's Countermeasures That Work guide.\6\
It clarified that it was not accusing NHTSA or States of using NHTSA
grant funds for discriminatory enforcement, but rather requesting that
NHTSA discuss potential or observed disparities in impact from
enforcement or other countermeasures within the Countermeasures That
Work. As an example, it noted that the Countermeasures That Work
designates mandatory bicycle helmet laws as highly effective and low
cost while designating bicycle helmet use promotions as less effective
and high cost, and argued that these disparate designations fail to
account for several costs and impacts associated with helmet use laws,
such as the related to education and enforcement, and the impacts of
potentially discouraging bicycle use due to enforcement efforts. GHSA
similarly argued that Countermeasures That Work over-encourages
investment in enforcement-related countermeasures. As we noted in the
NPRM, NHTSA is currently working on the next edition of the
Countermeasures That Work and will explore the considerations raised in
these comments in the course of that undertaking.
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    \6\ Available online at https://www.nhtsa.gov/sites/nhtsa.gov/files/2021-09/Countermeasures-10th_080621_v5_tag.pdf.
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D. National Roadway Safety Strategy and the Safe System Approach

    NHTSA received several comments regarding the implementation of the
National Roadway Safety Strategy (NRSS) and the Safe System Approach
(SSA). NHTSA is committed to working with the States to successfully
implement the NRSS and the SSA within the formula grant programs and
views the grant program as an important part of a much broader strategy
involving multiple DOT modes and stakeholders. NHTSA urges states to
consider how their triennial Highway Safety Plans fit into a broader
SSA, to work collaboratively to consider the ways in which multiple
strategies--including grant-funded strategies and other State and local
programs--can work synergistically, and to think holistically about
using all available tools to reduce roadway fatalities and crashes. For
example, in addressing pedestrian safety, a State might consider
improvements in infrastructure by providing more crosswalks and better
lighting, reductions in speeds in areas with high pedestrian use, and
enforcement and education in areas of high pedestrian injuries and
fatalities. Even though highway safety grant funding is available for
only some of these strategies, SHSOs should work with other entities on
holistic solutions to problems identified in their triennial HSPs.
States should also consider making recommendations within the Executive
Branch about possible changes in State laws that can reduce fatalities
and crashes even though SHSOs cannot engage in direct lobbying of their
legislatures using highway safety grant funds. NHTSA appreciates the
continued support and feedback from commenters on NRSS and SSA
implementation, and provides responses below.
    The CT HSO repeated its previous comment that implementing the NRSS
and the SSA will require NHTSA to afford administrative flexibility to
States. As expressed in the NPRM, NHTSA intends to provide such
flexibility consistent with applicable law.
    AAMVA suggested that, in addition to administrative flexibility,
NHTSA provide centralized guidance and support to assist State efforts
in implementing the NRSS and the SSA. The League of American Bicyclists
reiterated that NHTSA and States should do more to promote the
understanding, acceptance, and implementation of the SSA in State
transportation agency cultures. NHTSA agrees that the agency should
work to ensure that grantees understand and properly implement the NRSS
and the SSA. As announced in May 2022, NHTSA offers and will continue
to offer expanded safety program technical assistance to States to
assist them with understanding and implementing the NRSS and the SSA,
and will continually assess States' needs in this area.
    AAMVA stressed the importance of quality data that can be exchanged
among stakeholders. NHTSA agrees that the objectives of the NRSS/SSA
are inherently intertwined with the agency'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 road. NHTSA expects States to use the best and most
comprehensive data available (extending beyond fatality data) to
conduct problem identification, set performance targets, and assess
their progress in meeting those targets. States are also encouraged to
think critically about how available data can and should be used to
analyze their highway safety programs beyond the information that is
specifically required. Further, NHTSA encourages States to consider
ways to improve State data systems in order to increase data
availability and data-sharing opportunities.

E. Transparency

    NHTSA appreciates the League of American Bicyclists' support of
NHTSA's proposed approach to satisfy the BIL's expanded transparency
requirements, particularly in relation to the information provided in
the annual grant application. The League of American Bicyclists
expressed broad support for greater transparency and specifically
encouraged NHTSA to make publicly available the information provided in
the annual report by States about the community collaboration efforts
that are part of the State's evidence-based enforcement program. NHTSA
notes that this information will be made available, as the BIL requires
NHTSA to publicly release, on a DOT website, all approved triennial
HSPs and annual reports. 23 U.S.C. 402(n). NHTSA will post this
information on NHTSA.gov, consistent with the statutory requirements.
    The BIL further requires that the website allow the public to
search specific information included in the released documents:
performance measures, the State's progress towards meeting the
performance targets, program areas and expenditures, and a description
(if provided) of any sources of funds other than NHTSA highway

safety grant funds that the State proposes to use to carry out the
triennial HSP. 23 U.S.C. 402(n)(2). In response to this statutory
requirement, GHSA requested that NHTSA clarify that non-Federal funds
are no longer required to be reported by the States. We confirm that
the BIL removed the requirement to describe all non-Federal funds that
the State intends to use to carry out countermeasure strategies in the
triennial HSP. However, States are still required to provide
information on matching funds that will be used to meet the non-Federal
share of the cost of the program. NHTSA will post information on State
matching funds and any other non-Federal funding sources that States
choose to provide in their triennial HSPs and annual grant
applications. However, for improved accountability and transparency in
the highway safety grant program, NHTSA encourages States to continue
reporting State, local, or private funds they propose to use. As the
League of American Bicyclists noted, having such information publicly
available would strengthen understanding of the funding uses.
    In response to the RFC, NHTSA received many comments advocating for
an electronic grant management (e-grant) system. In contrast, in
response to the NPRM, MN DPS recommended that NHTSA not develop a new
e-grant system, explaining that it would be too difficult to transition
to such a system at the same time as adjusting to the new authorization
of the grant program. As stated in the NPRM, an e-grant system would
foster greater transparency in the use of NHTSA highway safety grant
funds by allowing State program information to be aggregated,
organized, and made available to the public in a user-friendly manner.
NHTSA has not yet deployed such a system, as the TN HSO pointed out,
and the agency does not plan to do so concurrently with the initial
deployment of the newly authorized grant programs. Currently, NHTSA is
in the exploration stages of developing an e-grant system. The TN HSO
requested that States participate in developing the grant management
system. We expect that any future e-grant system will facilitate
greater cross-state collaboration, data analysis, and transparency in
the use of program funds. To facilitate this outcome, NHTSA will
actively engage States and other stakeholders in its development.
    NHTSA sought comment in the NPRM on whether a standardized
template, codified as an appendix to the regulation, would be helpful
as an interim measure for States to provide information in a uniform
manner similar to what we hope will be enabled by a future e-grant
system. In response, three commenters \7\ recommended against
developing a standardized template at this time in favor of waiting for
the deployment of the future e-grant system. Accordingly, NHTSA will
not develop a standardized template as part of this rulemaking.
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    \7\ AAMVA, GHSA, and TN HSO.
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F. Emergency Medical Services

    Five commenters provided comments related to various aspects of
emergency medical services (EMS), 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 EMS and 911.
    Three commenters discussed eligibility for funding under NHTSA's
highway safety grant program. NEMSMA requested that NHTSA ensure that
grant funds go to rural EMS providers, including volunteer groups. WY
OEMS recommended that NHTSA require States to provide funding to EMS
and State or local trauma systems. Pamela Bertone requested that for-
profit EMS companies be deemed ineligible for funding and that, if they
were to remain eligible, States should be required to look at the
financial portfolio and tax returns of the CEO. 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. Similarly, NHTSA does not
have the authority to prohibit States from entering into grants with
for-profit entities; however, Federal grant rules prohibit an entity
from earning profits from a Federal award or subaward. See 2 CFR
200.400(g).
    Three commenters \8\ provided recommendations that certain costs be
considered allowable uses of NHTSA highway safety grant funds.
Identified costs included training, Centers of Excellence related to
emergency responder highway safety, purchase of safety and personal
protective equipment, development of technologies to notify drivers
they are approaching a crash scene with responders present, data
collection, and enhancements to 911 systems and collision notification
systems. An anonymous commenter argued that grants should provide
funding for EMS systems based on a ratio of population and
regionalization. As we explained in the NPRM, 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 cases where there is not a sufficient nexus
to traffic safety to fund the entirety of the project, projects may be
limited to proportional funding. 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 offer ideas for potential
activities that may be eligible for NHTSA formula grant funding.
---------------------------------------------------------------------------

    \8\ Anonymous commenter, NASNA, and NEMSMA.
---------------------------------------------------------------------------

    NEMSMA also provided comments related to many activities of NHTSA's
Office of Emergency Medical Services (OEMS). 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. However, those comments were outside the scope of
this rulemaking because they relate to NHTSA's activities outside of
the highway safety grant program.

G. Other

    Pamela Bertone commented that the NPRM seemed to focus more on
impaired and distracted driving than it did on speed, which she stated
is the most common cause of fatalities, and recommended that NHTSA put
more focus on speed. NHTSA emphasizes the importance of speed
management as a central component of highway safety programs and works
closely with States to combat risky driving behaviors such as speed,
including through a recent National safety campaign named ``Speed
Wrecks Lives,'' conducted in June 2022. Impaired and distracted driving
are also important components of highway safety programs and received
comparatively more discussion in the NPRM and in this final rule
because those program areas are National priority safety areas
identified by Congress for Section 405 incentive grants. Nevertheless,
States are encouraged to continue to carry out substantial speed
management

campaigns using Section 402 grant funds.

IV. General Provisions (Subpart A)

A. Definitions (23 CFR 1300.3)

    GHSA commented that the definitions of ``program area'' and
``project (or funded project)'' should reference either the annual
grant application or the triennial HSP instead of the HSP. Where the
NPRM referenced the ``HSP,'' NHTSA intended it to refer to the
``triennial HSP.'' Consequently, NHTSA has amended the definitions for
clarity to reference the triennial HSP.
    In addition, NHTSA made purely technical amendments to several
definitions. The agency updated citations within the definitions of
``Section 1906,'' \9\ ``State highway safety improvement program,'' and
``State strategic highway safety plan.''
---------------------------------------------------------------------------

    \9\ NHTSA has similarly made a technical correction to update
the citation for Section 1906 throughout the regulatory text.
---------------------------------------------------------------------------

    Finally, NHTSA removed reference to the KABCO scale in the
definition of ``serious injuries'' as the scale is no longer used for
this purpose.

B. State Highway Safety Agency (23 CFR 1300.4)

    The CT HSO and GHSA both expressed concern with the proposal that
the Governor's Representative for Highway Safety (GR) may not be
employed by a subrecipient of the State highway safety agency (commonly
referred to as the State Highway Safety Office, or SHSO). CT HSO
explained that the CT HSO is a subcomponent agency of the CT DOT; the
GR is employed by the CT DOT, which receives subawards from the CT HSO.
GHSA explained that in some States, the GR is an employee of the SHSO
and that the SHSO awards grants to itself; or that, as in CT, the GR
may be an employee of an overarching State department that receives
subawards from the SHSO.
    The two examples given do not cause a problem with the regulatory
text as proposed in the NPRM, as an agency is never a subrecipient of
itself, nor can a parent agency be a subrecipient of a subagency.
However, NHTSA recognizes that using the term subrecipient in this
context may be confusing, and especially so in light of the many varied
configurations of State governments. NHTSA has amended the regulatory
text to provide that, in order to carry out the responsibilities
required by the GR and to avoid a potential conflict of interest, the
GR must have ready access to the Governor and be the head of the SHSO
or be in the chain of command between the SHSO and the Governor. This
framework will achieve the goal of the NPRM, while using more direct
language that is easier for States to apply. NHTSA notes, however, that
this provision serves as a minimum floor to ensure that GRs have the
capability to fulfill their required functions in the grant program, as
provided in the whole of Sec.  1300.4 and other Federal requirements,
such as OMB's Uniform Administrative Requirements, Cost Principles, and
Audit Requirements for Federal Awards (2 CFR part 200). The GR remains
responsible for carrying out those responsibilities.

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

    As explained in the NPRM, the BIL created a new triennial framework
for the Highway Safety Grant Program, replacing the annual Highway
Safety Plan (HSP) with a triennial HSP and annual grant application. As
part of this new triennial framework, Congress increased community
participation requirements and codified the annual reporting
requirement.
    In addition to the broader comments urging that the agency ensure
fidelity to the law in drafting the regulatory text, CT HSO requested
that NHTSA refrain from requiring application or reporting requirements
beyond those explicitly authorized by law. As we explained in response
to GHSA's similar comment in the NPRM, NHTSA has striven to do so and
to streamline requirements wherever possible. However, relevant legal
requirements for these Federal grants are not limited to those in 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 for NHTSA as the Federal awarding
agency. We have included or referred to several of those requirements
throughout this regulation.
    AAMVA, the CT HSO, and the MN DPS requested that NHTSA avoid
duplication between the three different submissions that make up the
triennial framework (the triennial HSP, the annual grant application,
and the annual report). NHTSA will discuss specific requirements in
more detail in the relevant sections of the preamble, but notes here
that the triennial framework created by the BIL was designed to allow
the three program documents to build on each other. While the required
components of the submissions never overlap completely, they frequently
focus on the same types of information captured at different times
throughout the life of the grant, from long-range planning (triennial
HSP), to grant year implementation (annual grant application), to end
of year oversight and performance reporting (annual report), to
triennial performance reporting (triennial HSP). Viewed in this
context, these requirements are not duplicative, but rather relate to
program information developed at various stages along a timeline. Where
information is truly duplicative, we have striven to avoid redundancy,
as noted earlier.
    AAMVA requested that NHTSA provide front-end support and
flexibility to States as they transition to the new triennial
framework. NHTSA is committed to providing States with all necessary
support during this transition, and continuing onward, as they
implement highway safety programs. With the recent increase in traffic
fatalities, it is more important than ever that States carry out
strong, data-driven, and performance-based highway safety programs.
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, will be a valuable tool for
States as they work in partnership with NHTSA to address the recent
traffic. NHTSA, including its Office of Regional Operations and Program
Delivery and our ten regions, stand ready to assist the States in
deploying successful programs under the new authority. While we have
worked to implement the statutory requirements without imposing
unnecessary burdens 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. We will provide States with the support
necessary to reach these goals, but will look to the States to provide
high quality programs that NHTSA is able to approve.

A. First Year Flexibility

    Several commenters \10\ expressed concern about the States' ability
to comply with the new triennial framework in the first fiscal year of
the authorization (FY24). These commenters specifically requested that
NHTSA provide States with flexibility with regard to the public
engagement requirements for the first triennial HSP, arguing that
States would not be able to comply with public engagement requirements
in the time between publication of the final rule and the July

1, 2023 due date for the first triennial HSP. AAMVA suggested that
NHTSA excuse States from meeting any non-descriptive requirements
associated with public engagement in the FY24 triennial HSP. The MN DPS
and MoDOT requested that NHTSA not strictly enforce the public
engagement requirements and instead treat FY24 triennial HSP
submissions as a good faith building block for future triennial
periods. GHSA, supported by AASHTO, recommended that NHTSA create a
one-time allowance for States to submit public participation plans in
the FY24 triennial HSP (without the requirement to conduct any public
engagement efforts) and report on efforts carried out in the FY25
annual grant application.
---------------------------------------------------------------------------

    \10\ AAMVA, GHSA, MN DPS, and MoDOT.
---------------------------------------------------------------------------

    NHTSA declines to delay these public engagement requirements, which
form one of the seminal requirements of the new BIL grants. In enacting
BIL, Congress recognized the need to allow States time to ramp up their
efforts in this and other areas of the new grant programs, and so
delayed the start of the new requirements for almost two years after
enactment. This delay provided the States ample time to prepare for
needed adjustments, and NHTSA is not able to waive the statutory
directive for ``meaningful public participation and engagement from
affected communities.'' Moreover, in an era of increasing traffic
fatalities and disparate outcomes, NHTSA will not compromise on the
quality of the approved highway safety programs under the new statutory
framework, and that includes the critical component of public
engagement. Accordingly, all requirements will take full effect for
FY24 grants. The public engagement requirements in this regulation
implement important requirements set out in the BIL and in accordance
with Title VI of the Civil Rights Act of 1964 \11\ (or Title VI), as
well as NHTSA's own commitment to ensuring that equity is centered in
the planning and implementation of the highway safety grant program.
They are also of clear importance to the populace within the States.
---------------------------------------------------------------------------

    \11\ 42 U.S.C. 2000d et seq., 78 stat. 252.
---------------------------------------------------------------------------

    NHTSA is committed to ensuring that States have the assistance
necessary to help in implementing the public engagement requirements.
In October 2022, DOT published a guide titled ``Promising Practices for
Meaningful Public Involvement in Transportation Decision-Making.'' \12\
NHTSA recently hired two staff members dedicated to providing technical
assistance to States on outreach and engagement efforts and will
provide a suite of resources in this area in coordination with NHTSA's
Office of Civil Rights, which provides technical assistance regarding
Title VI and other Federal civil rights laws. Shortly after the
issuance of this final rule, NHTSA will conduct webinars discussing
meaningful public engagement and involvement.
---------------------------------------------------------------------------

    \12\ Available online at https://www.transportation.gov/priorities/equity/promising-practices-meaningful-public-involvement-transportation-decision-making.
---------------------------------------------------------------------------

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
the CT HSO reiterated in its comments, the triennial HSP is intended to
focus on program-level information. It serves as the long-range
planning document for State highway safety programs.
    GHSA expressed concern that the descriptive elements of the
triennial HSP might lead to subjective consideration during NHTSA's
review and approval or lead to Regional misinterpretation of the
requirements. It recommended that NHTSA establish a sense of the
parameters for all descriptive elements. NHTSA provided significant
clarification regarding some of these elements in the preamble to the
NPRM and provides more clarification below. However, it is also NHTSA's
intention to leave flexibility for States to structure their triennial
HSPs in the manner that best reflects the data and resources of the
State. And, since a State's triennial HSP is essentially a document
customized to its own needs, based on problem identification within its
borders, NHTSA is avoiding being overly prescriptive and taking a one-
size-fits-all approach to review of these documents.
1. Highway Safety Planning Process and Problem Identification (23 CFR
1300.11(b)(1))
    AAMVA expressed support for NHTSA's decision in the NPRM not to
specify problem areas that States must consider in triennial HSP
problem identification, but instead to provide States with the
flexibility to identify problems based on the data. AAMVA further noted
that States will likely explore non-conventional data sources in
response to this rulemaking and requested that NHTSA provide support
and flexibility to States as they establish and refine these data
sources. As noted in the NPRM, NHTSA encourages States to consider and
use non-conventional data sources (e.g., socio-demographic data) and
will provide States with assistance upon request.
    As explained in more detail in the annual grant application section
below, NHTSA has amended the regulatory text to provide that States
should consult geospatial data as part of their problem identification
process. 23 CFR 1300.11(b)(1)(ii). This could include consulting
location-based data sources to provide insight into the selection of
specific roadways and/or intersections to conduct enforcement
activities where they are most needed.
    Finally, AAMVA also supported NHTSA's view, stated in the NPRM in
response to a comment, that it is unnecessary for States to provide a
plan for regular data assessments in the triennial HSP, because States
are already required to submit annual reports that assess their
progress in meeting performance targets.
2. 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). AAMVA and the 5-State DOTs expressed broad support
for the new emphasis on public engagement.
    GHSA reiterated its prior comment that many States already have
successful public engagement initiatives underway, but noted that their
strategies have not been effectively shared. It offered to collaborate
with NHTSA to support States in implementing broader public engagement
and in sharing best practices. AAMVA similarly requested that NHTSA
provide guidance to States on how to meet public engagement
requirements. The League of American Bicyclists requested that NHTSA
analyze State activities in this area and publish a report. GHSA and
AASHTO recommended that NHTSA refer to FHWA's experience with the
public participation process as it develops its own guidance. NHTSA
appreciates this shared commitment to public engagement and looks
forward to working with the States and GHSA to share best practices and
effective strategies to increase community engagement. As mentioned
previously in this document, NHTSA recently hired two staff members
dedicated to providing technical assistance to States on outreach and
engagement efforts and

will provide a suite of resources in this area in coordination with
NHTSA's Office of Civil Rights, including webinars that will be
conducted shortly after the issuance of this final rule.
    As explained in the preamble to the NPRM, NHTSA structured the
public engagement section of the triennial HSP so that States can meet
both the BIL requirements and the Title VI Community Participation Plan
requirements with the same submission. Title VI of the Civil Rights Act
of 1964 prohibits discrimination on the basis of race, color, or
national origin (including limited English proficiency) in any program
or activity receiving Federal financial assistance. As implemented
through the U.S. Department of Transportation Title VI Program Order
(DOT Order 1000.12C), Title VI requires, among other things,\13\ that
all recipients submit a Community Participation Plan. The purpose of
the Community Participation Plan is to facilitate full compliance with
the community participation requirement of 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. MN DPS
supported NHTSA's efforts to combine the two requirements. GHSA sought
clarification about whether States must submit or maintain on file a
separate file to fulfill the Community Participation Plan requirements
from Title VI. NHTSA confirms that the triennial HSP submission is
sufficient to satisfy the Community Participation Plan requirements,
and no further documentation is needed for that component of Title VI.
---------------------------------------------------------------------------

    \13\ For example, consistent with Title VI, the DOT Title VI
Program Order also requires that NHTSA conduct a pre-award
assessment of each applicant for financial assistance and that every
grant recipient have on file a Title VI plan. As these requirements
are not specifically part of the triennial HSP or annual grant
application, the substance of these requirements has not been
incorporated into the rulemaking.
---------------------------------------------------------------------------

    GHSA and the MoDOT argued that the BIL limits the requirement for
meaningful public participation and engagement to the ``program,''
interpreting that to refer only to the triennial HSP and countermeasure
strategy level planning, not to project level implementation. On a
similar note, AASHTO and the 5-State DOTs expressed concern that States
would be required to bring public engagement into all levels of project
management, including at the project level. These commenters requested
that NHTSA change the proposed regulatory language to make clear that
public engagement is only required for program planning, not throughout
program implementation and management. NHTSA disagrees. A State highway
safety ``program,'' as described in 23 U.S.C. 402(b), refers to the
entire lifespan of the State's highway safety efforts, from planning to
project implementation to program evaluation. The public engagement
requirements in Sec.  1300.11(b)(2) reflect this, by requiring public
participation and engagement not just in the planning processes leading
up to the triennial HSP (see Sec.  1300.11(b)(2)(i)), but also
throughout the life of the grant (see Sec.  1300.11(b)(2)(iii)). States
must consider community input while planning and implementing projects
under the highway safety program, but are not expected to conduct
public participation and engagement efforts on a project-by-project
basis. For example, a State could conduct public participation and
engagement efforts related to its impaired driving program for a fiscal
year and then use the input received during those engagement efforts
when it implements its impaired driving projects, rather than
conducting engagement efforts for each impaired driving project. We
have amended the requirement to clarify that the State's statement of
starting goals for public engagement needs to include discussion of how
the public engagement efforts will contribute to the development of the
State's highway safety program as a whole, including countermeasure
strategies for programming funds. Sec.  1300.11(b)(2)(i)(A).
    Further, Sec.  1300.11(b)(2)(ii)(C) requires the State to discuss
how the comments and views received in engagement opportunities
conducted for the triennial HSP have been incorporated into the
development of the triennial HSP. This also reflects the comprehensive
community participation requirements in accordance with Title VI of the
Civil Rights Act of 1964 and supports NHTSA's goal of ensuring that the
public participation and engagement opportunities that are conducted
are meaningful and that equity is a focus throughout all stages of the
highway safety grant program. However, NHTSA notes that States will
still be able to make management and even programmatic decisions
without conducting public engagement opportunities for each decision.
The goal is for a State to provide sufficient opportunities for public
engagement so that the State can be informed by the input received
during those opportunities as it plans, implements, and manages the
highway safety grant program.
    In order to clarify the stages of public engagement required, NHTSA
has reformatted Sec.  1300.11(b)(2) to better identify the components
of the State's public participation and engagement submission: (1)
triennial HSP engagement planning; (2) triennial HSP engagement
outcomes; and (3) ongoing engagement planning. As explained in more
detail later, States will later be required to describe the ongoing
engagement efforts that they conduct in each grant year in the annual
report. See 23 CFR 1300.35(b)(2). Limited, non-substantive changes have
been made to the regulatory text to accommodate this reorganization.
For clarity, we have also written specific requirements for State plans
for ongoing engagement in Sec.  1300.11(b)(2)(iii), rather than relying
on an internal citation.
    The NV OTS commented that the requirement to provide lists of
engagement opportunities conducted, with additional descriptive
information, is too burdensome. NV OTS argued that such lists could
become too extensive for NHTSA to adequately assess and argued that
States should only be required to develop an engagement plan with
projected activities, not provide details about engagement conducted.
Upon consideration, NHTSA agrees that lists of every engagement
opportunity conducted may become too voluminous and may not be useful
for NHTSA's approval process or for transparency purposes. However, we
disagree that States should be allowed to submit only plans, with no
requirement to describe engagement actually conducted as part of the
triennial HSP planning process. We have therefore amended the
regulatory text to require that States must provide narrative
assessments and descriptions of their community engagement efforts
instead of a list. 23 CFR 1300.11(b)(2)(ii).
    MN DPS argued that being required to identify specific engagement
efforts would hinder State efforts that are currently underway by
requiring States to reengineer existing public engagement plans. AAMVA
noted that it agreed with GHSA's comment to the RFC that the volume of
comments received would be an inaccurate and unreliable benchmark for
public engagement. We note that, while the regulation requires States
to describe the engagement efforts conducted, it does not require
specific forms of public

participation and engagement, nor require specified outcomes. However,
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 plans for continuing
public participation during the triennial period and into the next
triennial HSP. 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.
    In addition to the comments in response to the RFC on the topic,
NHTSA received several comments expressing the need for funding for the
BIL's increased public engagement requirements. GHSA, MN DPS and MoDOT
requested clarification about whether NHTSA grant funds may be used to
support public participation and engagement efforts in general. As
NHTSA explained in the preamble to the NPRM, the specifics of whether
and how NHTSA grant funds may be used to pay for these types of costs
are highly fact specific and implicate many different Federal and State
laws and regulations. However, as a general matter, States may use
NHTSA grant funds for costs associated with public participation and
engagement activities, including activities required to plan and
conduct public engagement required for submission of the triennial HSP.
Any such costs are Planning and Administration costs and are subject to
the allowance for such costs, as laid out in 23 CFR 1300.13(a).
    The League of American Bicyclists requested that NHTSA compile
information on how States use NHTSA grant funds for purposes of
compensating community members for their public participation and
publish a report on those uses of funds. GHSA did not think it likely
that States would consider compensating participants, but nonetheless
sought clarification from NHTSA on whether such compensation would be
an allowable use of grant funds. As explained above, whether a specific
cost is an allowable use of funds is highly fact specific and subject
to many different Federal laws and regulations. Differences in State
laws and regulations may also affect whether a State may compensate
participants in public engagement efforts. That said, these sorts of
costs are potentially allowable uses of grant funds and NHTSA will work
with States to determine whether any specific participation costs are
allowable. Since no States currently use NHTSA grant funds for this
purpose and it is unknown if any States will do so, NHTSA has no plans
to publish a report at this time.
3. Performance Plan (23 CFR 1300.11(b)(3))
    The BIL continues to rely 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.
    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). As NHTSA explained in the preamble to the NPRM, the requirement
for constant or improved performance will facilitate open discussions
about desired safety outcomes and how to allocate resources to reach
those outcomes. 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. Roadway deaths
are unacceptable and preventable; we must all work toward making the
goal of zero roadway fatalities a reality, and performance management
is a vital tool for making that happen.
    Several commenters \14\ reiterated arguments they made in response
to the RFC that requiring targets showing constant or improved
performance is contrary to the requirement that targets be appropriate
and evidence-based, and asked that NHTSA explain how a State can set a
data-driven target if the evidence does not demonstrate constant or
improved performance. GHSA disagreed with NHTSA's response in the NPRM,
which explained that States should consider different countermeasure
strategies or adjust funding within a countermeasure strategy in order
to achieve constant or improved performance. GHSA argued that States do
not have unlimited resources to do so, nor do they have an unlimited
menu of acceptable countermeasures. Instead, GHSA requested that, if a
State's data analysis shows that an appropriate target would not
demonstrate constant or improved performance and the State cannot
allocate additional resources, NHTSA should nonetheless allow that
State to adjust the target to be ``constant.'' The agency recognizes
that resources are not unlimited, but the BIL greatly expanded highway
safety grant funds available to the States, providing a more than 30
percent increase. The traveling public has a right to expect that the
nearly 4 billion dollars in highway safety grant funding authorized by
the BIL will result in fewer lives lost on our Nation's roadways. With
that in mind, lack of resources is not an acceptable justification for
failure to demonstrate constant or improved performance, and NHTSA will
not label as ``constant'' any target that demonstrates worsening
performance.
---------------------------------------------------------------------------

    \14\ AASHTO, GHSA and MN DPS.
---------------------------------------------------------------------------

    NHTSA also disagrees with the implied premise that States lack the
ability to influence safety numbers and stands by our prior response;
performance targets are inextricably tied to countermeasure strategies
for programming funds. Targets should reflect the outcomes that States
expect to achieve after implementing their planned programs. If a
projected outcome shows worsening safety levels, then the State needs
to change its planned program either at or below the countermeasure
strategy level. States receive highway safety grant funds in order to
achieve important safety outcomes. NHTSA strongly encourages States to
consider innovative countermeasure strategies as long as they are
consistent with Federal statutes and regulations; we have seen States
implement several such strategies successfully in the past.
    Some commenters \15\ requested that, in order to meet the
requirement to set data-driven targets that show constant or improved
performance, States be allowed to ``reset'' targets based on recent
data. These comments suggest a belief that States must set ever-lower
performance targets every triennial cycle, regardless of the data at
the time the triennial HSP is submitted. Such a construction would
divorce performance management from the underlying data. NHTSA has
therefore added regulatory language to make clear that States must set
performance targets that show constant or improved performance compared
to the safety levels, based on the most currently available data, not
based on the target from the prior triennial HSP. 23 CFR
1300.11(b)(3)(ii)(B). This will serve as a constructive ``reset'' of
performance targets based on documented safety levels for each
triennial HSP. This clarification should also resolve the CT

HSO's concern that States not be penalized for failure to meet measures
that were inflated due to being set based on prior targets that don't
reflect current safety levels.
---------------------------------------------------------------------------

    \15\ AASHTO, CT HSO, and GHSA.
---------------------------------------------------------------------------

    Several commenters expressed concern that States will face
penalties if they fail to meet aggressive targets. Section 402 requires
States to assess in both the triennial HSP (23 U.S.C. 402(k)(4)(E)) and
the annual report (23 U.S.C. 402(l)(2)) the progress made in achieving
performance targets in the annual grant application the means by which
the State's countermeasure strategy for programming funds was adjusted
and informed by that assessment (23 U.S.C. 402(l)(1)(C)), and NHTSA is
required to publicly release an evaluation of State achievement of
performance targets (23 U.S.C. 402(n)(1)). However, there are no
monetary or programmatic penalties for failure to achieve a performance
target in NHTSA's highway safety grant program. GHSA requested that
NHTSA acknowledge that failure to meet performance measures reflects
poorly on State programs and that they may face additional
administrative steps (the required assessment and adjustment of
countermeasure strategies). AASHTO noted that added administrative
burdens have cost and resource impacts. The MoDOT argued that
performance targets are not performance predictions and requested that
NHTSA acknowledge that failure to meet performance targets does not
mean that a State's programs are ineffective. NHTSA believes that
performance measures bring transparency to the safety outcomes of State
programs and can be helpful to States in planning a program designed to
help them meet performance targets. NHTSA acknowledges that this
transparency may sometimes be uncomfortable for a State, but believes
it is vital to ensuring that highway safety programs produce meaningful
improvements every year.
    As GHSA notes, States are required to describe plans to adjust
their countermeasure strategies for programming funds if they are not
on track to meet performance measures. However, we disagree with
labelling such work a penalty; it is a response designed to address an
identified safety problem that has not been resolved and to encourage
redirecting the investment of funds to better meet performance targets.
NHTSA and the States share the common goal of reducing highway
fatalities and injuries. It is our joint responsibility to deploy grant
funds squarely toward that end. NHTSA challenges States to think
creatively and critically about ways to improve the safety outcomes of
their programs.
    NHTSA received many comments specifically related to the common
performance measures that States also report annually to FHWA for the
State highway safety improvement program (HSIP).\16\ AASHTO, the CT
HSO, and the MN DPS all recommended that NHTSA collaborate with FHWA,
GHSA, and AASHTO to reevaluate how performance measures are established
and used and to assist States in complying with both NHTSA and FHWA
performance requirements. NHTSA appreciates this suggestion and will
continue to work closely with these partners to provide needed
technical assistance to States.
---------------------------------------------------------------------------

    \16\ Common performance measures are set out in 23 CFR
490.209(a)(1) and 23 CFR 1300.11.
---------------------------------------------------------------------------

    Many commenters \17\ stated that the common performance measures
should focus only on variables within the direct control of the State
highway safety office. They explained that common measures, such as
total fatalities and injuries, are dependent on many factors and that
the SHSO focuses only on behavioral aspects of traffic safety. As
stated in the NPRM, NHTSA disagrees that the common performance
measures should be so narrowly focused. While we recognize that the
common measures are impacted by many variables, the SHSO and its
programs are an integral part of those overall safety numbers. The
SHSO, under the auspices of the Governor, is expected to coordinate the
triennial HSP, annual grant application, and highway safety data
collection and information systems activities with other federally and
non-federally supported programs in the State relating to or affecting
highway safety, including the State strategic highway safety plan
(SHSP). 23 CFR 1300.4(c)(11). The common measures show the overall
highway safety outcomes in the State, including the programs
implemented by the SHSO. For context, we also note that the common
measures are only three of many performance measures: there are three
common measures, fourteen minimum measures, and States are always
encouraged to develop their own additional measures for problems not
covered by existing performance measures.\18\ The minimum performance
measures created in cooperation with GHSA focus more specifically on
areas within the SHSO control.
---------------------------------------------------------------------------

    \17\ AASHTO, AAMVA, GHSA, MN DPS, and MoDOT.
    \18\ In fact, States are required to submit performance measures
for any program area for which a minimum performance measure does
not already exist (for example, distracted driving), because all
projects funded with NHTSA grant funds must be tied to a
countermeasure strategy for programming funds that is addresses a
performance target in the triennial HSP. See 23 CFR
1300.12(b)(2)(ix) and 23 CFR 1300.11(b)(4)(iii).
---------------------------------------------------------------------------

    AASHTO expressed appreciation for NHTSA's proposal that States be
allowed to update the targets for the three common performance measures
in the annual grant application. See 23 CFR 1300.12(b)(1)(ii). It asked
how States should reflect those changes in the triennial HSP. The
annual grant application includes a section for updates to the
triennial HSP. See 23 CFR 1300.12(b)(1). Upon approval of the annual
grant application, any changes that a State makes to the triennial HSP
under that provision will be presumed by NHTSA to be incorporated into
the triennial HSP and will not require any further efforts on the part
of the State to amend the triennial HSP itself.
    AAMVA and GHSA requested that NHTSA and GHSA work together to
update the minimum performance measures that were developed in 2008
\19\ in accordance with 23 U.S.C. 402(k)(5). In contrast, the 5-State
DOTs reiterated that they do not believe any new performance measures
are required. 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 draw 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 publishing the proposed
minimum performance measures in the Federal Register for public
inspection and comment. For the purposes of the FY24 triennial HSP,
States are 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.
---------------------------------------------------------------------------

    \19\ ``Traffic Safety Performance Measures for States and
Federal Agencies'' (DOT HS 811 025) (Aug. 2008).
---------------------------------------------------------------------------

    AASHTO reiterated its comment to the RFC, stating 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.
AASHTO argued that NHTSA cannot appropriately rely on the reasoning set
forth by FHWA in its final rule for the National Performance Management
Measures: Highway Safety Improvement Program, which set out

the parameters of the common performance measures,\20\ because the
statutes have changed since that time. However, the relevant portions
of those statutes have not changed. Regardless, as we noted in the
NPRM, NHTSA does not have the discretion to override the statutory
requirement for approval or disapproval of triennial HSPs, including
the performance measures contained therein. See 23 U.S.C. 402(k)(6).
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    \20\ 81 FR 13882, 13901 (Mar. 15, 2016).
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4. 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. 23 U.S.C. 402(k)(4)(B-D).
    GHSA noted that NHTSA seems to use the terms ``countermeasure'' and
``countermeasure strategy for programming funds'' inconsistently
throughout the regulation, occasionally using ``countermeasure'' where
GHSA believes it should read ``countermeasure strategy for programming
funds''. Upon reviewing the regulatory text, NHTSA found one instance
where the terms were used in an unclear context and has amended the
regulatory text in Sec.  1300.11(b)(4)(ii)(B) to refer to
``countermeasures'' rather than ``countermeasure strategies.'' The term
``countermeasure'' is used singularly in several of the Section 405
grant sections; however, NHTSA confirms that those uses are appropriate
based on the statutory text and intent.
    For each countermeasure strategy, the State must provide: (1)
identification of the problem ID that the countermeasure strategy
addresses and a description of the link between the problem ID and the
countermeasure strategy; (2) a list of the countermeasures that the
State will implement as part of the countermeasure strategy, with
justification supporting the countermeasures; (3) identification of the
performance targets the countermeasure strategy will address with a
description of the link between the countermeasure strategy and the
target; (4) a description of the Federal funds the State plans to use;
(5) a description of the considerations the State will use to determine
what projects to fund to implement the countermeasure strategy; and (6)
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). Sec.  1300.11(b)(4).
    NHTSA received many comments related to the requirement to provide
justification supporting countermeasures that are included in a
countermeasure strategy for programming funds. See 23 U.S.C.
402(k)(4)(C) and 23 CFR 1300.11(b)(4)(ii). As a preliminary matter,
NHTSA points out that this provision is largely similar in substance to
the requirements under the FAST Act, in which States were required to
provide justification supporting the potential effectiveness of
innovative countermeasures as they relate to the problem identified.
NHTSA proposed two changes to the requirement in the NPRM: (1) the
agency provided that any countermeasure rated 3 stars or higher in
Countermeasures That Work are proven effective and do not require
justification; and (2) the agency added data and data analysis to the
requirements for supporting an innovative countermeasure. The
requirement to provide data and data analysis is taken directly from
the BIL, which requires States to provide data and data analysis
supporting the effectiveness of proposed countermeasures. See 23 U.S.C.
402(k)(4)(C).
    The CT HSO, DE OHS, GHSA, MN DPS, and MO DOT argued that requiring
States to provide justification for countermeasures not identified as 3
stars or above in Countermeasures That Work adds an unnecessary burden
on states and would stifle innovation. The League of American
Bicyclists expressed concern that the requirement would encourage
States to focus on countermeasures in Countermeasures That Work at the
expense of other promising countermeasures. The League of American
Bicyclists and GHSA both noted that this could incentivize States to
conduct more enforcement. GHSA recommended that NHTSA allow States to
cite to the Uniform Guidelines for State Highway Safety Programs \21\
and to recommendations in NHTSA-affiliated program assessment reports.
NHTSA reminds commenters that the requirement to justify
countermeasures derives from the statute. In exempting countermeasures
rated 3 stars and above from the requirement to provide justification
of effectiveness, NHTSA sought to limit the burden on States by not
requiring each State to provide independent justification for
countermeasures that have already been proven over time. To further
that goal, NHTSA has adopted GHSA's suggestion to also exempt
countermeasures included in the Uniform Guidelines and as
recommendations in NHTSA-affiliated program assessment supports. Sec.
1300.11(b)(4)(ii)(A). NHTSA encourages innovation and urges States not
to rely overly on the same set of countermeasures that have not
produced positive programmatic change to date, even if they are rated 3
stars or above. Even though these countermeasures are exempted from the
requirement to provide independent justification of effectiveness, as
with all countermeasure strategies, States must still describe the link
between the problem identification and the countermeasure strategy and
the link between the effectiveness of the countermeasure strategy and
the performance target. Sec. Sec.  1300.11(b)(4)(i) and (iii).
---------------------------------------------------------------------------

    \21\ Available online at: https://www.nhtsa.gov/laws-regulations/guidance-documents#52986.
---------------------------------------------------------------------------

    The League of American Bicyclists suggested 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
data analysis required to justify the use of a countermeasure.
    The DE OHS argued that justification of the effectiveness of
innovative countermeasure strategies is better suited to be addressed
in the annual report than in the triennial HSP. The MoDOT argued that
requiring justification of countermeasures is an overreach by NHTSA,
reasoning that SHSOs are responsible for identifying and implementing
countermeasures and that NHTSA need only ensure the State administers a
compliant program. MoDOT further questioned why States should have to
justify countermeasures when they will be evaluated on their ability to
meet performance measures. NHTSA reminds the States that the BIL
specifically requires States to submit data and data analysis
supporting the effectiveness of proposed countermeasures in the
triennial HSP. See 23 U.S.C. 402(k)(4)(C). However, NHTSA also strongly
encourages States to evaluate the effectiveness of all innovative
countermeasures after implementation and to share those results with
NHTSA and with other States. Furthermore, the statute provides that
NHTSA has responsibility for reviewing the triennial HSPs submitted by
the States and ensuring that the triennial HSPs satisfy the statutory
and regulatory requirements prior to approval. See 23 U.S.C. 402(k)(6).

    GHSA and DE OHS sought clarification about the level of detail
required to justify innovative countermeasures, requesting that NHTSA
keep the requirement similar to the existing requirement for innovative
countermeasures under the FAST Act. They cautioned that States should
not be required to submit detailed research reports. NHTSA confirms
that the level of justification required for innovative countermeasures
is fundamentally the same as in the regulation implementing the FAST
Act. Commenters may be misinterpreting the level of justification
required. For example, a State could cite to a countermeasure from a
different program area in the Countermeasures That Work and briefly
explain why it believes that countermeasure would be similarly
effective in the relevant program area. Alternatively, a State could
provide a citation to a report on a pilot program carried out
elsewhere, or to existing research demonstrating the effectiveness of a
strategy in a different context, potentially outside of the highway
safety context. To clarify that States are not required to submit
research reports, NHTSA has amended the regulatory text to require that
the justification use available data, data analysis, research,
evaluation and/or substantive anecdotal evidence. Sec.
1300.11(b)(4)(ii)(B).
5. 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. In order to
foster a connection between the triennial HSP and annual reports, NHTSA
specified that the performance report in the triennial HSP contain the
same level of detail as the annual report. Both AAMVA and GHSA
expressed confusion over the level of detail expected for the triennial
HSP performance report. GHSA noted confusion because the regulation
cites to the entirety of Sec.  1300.35, not just the performance report
section at Sec.  1300.35(a), and asked whether NHTSA wants States to
combine three years of annual report performance reports into a single
analysis.
    In order to avoid confusion, NHTSA has removed the internal
citation and inserted regulatory language specific to the triennial
HSP. 23 CFR 1300.11(b)(5). While the language still mirrors the
language for the annual performance report, it has been adjusted to
reflect the triennial nature of the analysis. For example, while the
annual report focuses on activities conducted during a single grant
year, the triennial HSP focuses on countermeasure strategies
implemented during the triennial period. NHTSA believes that States
will be able to benefit from the yearly analysis they have already
conducted in their annual reports when writing their triennial
performance reports. As noted in the preamble to the NPRM, for the FY24
triennial HSP, NHTSA expects only analysis of the State's progress
towards meeting the targets set in the FY23 HSP.

C. Annual Grant Application (23 CFR 1300.12)

    NHTSA received comments on the proposed submission date and
components of annual grant applications. We address each of these
comments in the respective sections below and make necessary updates to
the regulatory language for clarification and simplification.
1. Due Date (23 CFR 1300.12(a))
    The MA OGR requested that the due date of August 1 be changed to
July 1 and/or that NHTSA reduce the 60-day review period to 30 or 45
days. The MA OGR noted that a due date of August 1, with a 60-day
review period, would provide for a September 30 award date, which they
argue provides insufficient time for States to award projects starting
October 1. The due date of August 1 ensures that both States and NHTSA
have adequate time to prepare, submit, and review annual grant
applications. As explained in the NPRM, NHTSA proposed a deadline of
August 1 to provide States with a due date different from the triennial
HSP's July 1 deadline. Requiring both the annual grant application and
the triennial HSP to be submitted on July 1 would impose more burden on
States during the years when both submissions are required. This
approach is informed by comments received in response to the RFC and
discussed in more detail in the NPRM. Additionally, the statute affords
60 days for NHTSA to review and approve or disapprove annual grant
applications. 23 U.S.C. 402(l)(1)(D). NHTSA notes that our ability to
review and ultimately approve applications within the 60-day statutory
timeline depends on the quality of the information provided by States.
Where possible, we will strive to work with States to expedite the
review process.
2. Updates to Triennial HSP (23 CFR 1300.12(b)(1))
    As part of annual grant applications, the BIL requires States to
provide updates to their triennial HSPs, including a description of the
means by which the strategy for programming funds was adjusted and
informed by the most recent annual report. 23 U.S.C. 402(l)(1)(C)(iii).
In the NPRM, NHTSA fleshed out this requirement by providing that where
a State determined in its annual report that it was not on track to
meet all performance targets, it must explain either how it will adjust
the strategy for programming funds or why it is not doing so.
Otherwise, a State must briefly state that it was on track to meet all
performance targets. NHTSA appreciates AAMVA's support for streamlining
the requirement for States that are on track to meet their performance
targets.
    In addition, States may make certain changes related to performance
measures in the annual grant application. As explained in the NPRM,
States may add new performance measures and amend common performance
measures. GHSA requested NHTSA to clarify that States are allowed to
amend common performance targets, rather than common performance
measures as stated in the NPRM. As GHSA noted, States may amend
performance targets associated with the common performance measures
(i.e., number of fatalities) rather than the measures themselves (i.e.,
fatality, fatality rate, and serious injuries). NHTSA has made a
conforming change to the language at 23 CFR 1300.12(b)(1)(ii) in
accordance with this clarification.
    The CT HSO stated that any updated data analysis should be required
only in the triennial HSP, not the annual grant application. It is not
clear to what data analysis the State is referring; however, NHTSA
notes that States provide all updates to the triennial HSP via the
annual grant application under the new triennial framework.
Functionally, it is the same as updating or amending the triennial HSP
itself.
    GHSA, joined by the MN DPS, repeated its previous comment that the
statute clearly provides that it is the State, not NHTSA, that
determines when updates to the triennial HSP are necessary. As
explained in the NPRM, NHTSA disagrees with this interpretation. The
statute provides that an annual grant application must include any
necessary updates to analysis in the State's triennial HSP. 23 U.S.C.
402(l)(1)(C)(i). The statute, however, is silent as to who determines
what updates to analysis are necessary. While the statute allows a
State to include such updates, it does not limit the determination of
whether those updates are sufficient to States. The statute requires
NHTSA to approve or disapprove 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). Updates to
analysis in the State's triennial HSP may be necessary in order to
demonstrate that the annual grant application aligns with the triennial
HSP, as required by the BIL. See 23 U.S.C. 402(l)(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).
    To satisfy those statutory requirements, States must submit the
following information in their annual grant applications: project name
and description, Federal funding source(s), project agreement number,
subrecipient(s), amount of Federal funds, eligible use of funds,
identification of Planning and Administration costs, identification of
costs subject to Section 1300.41(b), and the countermeasure strategy
for programming funds that the project supports. 23 CFR 1300.12(b)(2).
These requirements 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 requested clarification about several items to be included in
the project and subrecipient information. GHSA asked what NHTSA means
by ``eligible use of funds'' and the level of detail that States will
be expected to provide. NHTSA's purpose in including this information
in the annual grant application, as well as in State vouchers (see 23
CFR 1300.33(b)(3)), is to facilitate transparency in the use of NHTSA
grant funds, to ensure consistency between planned and actual project
expenses, and to facilitate verification of allowability of costs
within specific program areas. For example, there are six specific
eligible uses of Section 405(b) Occupant Protection Grants. See 23 CFR
1300.21(g)(1). One such eligible use is ``to train occupant protection
safety professionals, police officers, fire and emergency medical
personnel, educators, and parents concerning all aspects of the use of
child restraints and occupant protection''. 23 CFR 1300.21(g)(1)(ii).
For projects on occupant protection training, States should notate this
specific eligible use as Occupant Protection Training and ensure that
the project description includes the nature of the training and the
intended audience. This same eligible use notation would apply to
projects using Section 402 grant funds for occupant protection
training. As another example, there are two eligible uses of Section
402 grant funds for automated traffic enforcement (school zone or work
zone). See 23 CFR 1300.13(g). Projects using Section 402 grant funds
for automated traffic enforcement in a school zone should notate the
eligible use as Automated Traffic Enforcement--school zone and ensure
that the project description includes the appropriate information per
1300.12(b)(2)(i). If a State is uncertain about a specific use of
funds, we encourage the State to reach out to the Region for
assistance.
    Next, GHSA requested that NHTSA clarify the requirement at 23 CFR
1300.12(b)(2)(viii), which requires States to identify whether a
project will be used to meet the requirements of Sec.  1300.41(b)
(commonly referred to as promised projects). NHTSA confirms GHSA's
understanding that States must identify whether the State is committing
unexpended grant funds that would otherwise be deobligated and lapsed
to a particular project consistent with Sec.  1300.41(b).
    GHSA also sought clarification about how States should organize
information on the countermeasure strategy that the project supports,
and asked for flexibility. States may format their project list by
grouping projects based on the countermeasure strategy. It is incumbent
on States to ensure that they submit all required information in an
organized manner to minimize delays in NHTSA's review and avoid the
need for follow-up information.
    In the NPRM, NHTSA proposed to include zip codes as an example of
information that may be provided as part of a project description. In
addition, NHTSA proposed to require States to provide zip codes for all
projects in the annual report and sought comment on whether there is a
better metric for obtaining relevant location information for projects.
In response, the DE OHS, GHSA, and MN DPS expressed concern that
providing zip code information in annual grant applications and annual
reports would impose an excessive burden on States and suggested
finding a more efficient way to collect location data. NHTSA
appreciates the feedback but also emphasizes that it is our
responsibility to ensure that project information is consistent with
States' triennial HSPs. As noted by the CT HSO, NHTSA's intent in
proposing zip code information was to identify the location where a
project is taking place, and location information is essential for
NHTSA to verify that States are executing projects in the areas
identified by the problem identification and/or countermeasure
strategies in their triennial HSPs. However, NHTSA agrees that zip code
information might not be the most relevant data point or may be
cumbersome for States to compile, depending on project type.
Accordingly, to avoid an unnecessary burden on States, we have removed
specific references to zip codes from both the annual grant application
and annual report sections of the regulation. Instead, NHTSA has
amended the regulatory text to provide that States must provide
information on the location where the project is performed as part of
the project description in the annual grant application (which may
include zip codes), but leaves it to the State's discretion what form
this location information takes. Sec.  1300.12(b)(2)(i).
    NHTSA expects that States will provide information at the lowest
geographic level applicable to each project. NHTSA notes that,
consistent with the Federal Funding Accountability and Transparency Act
(FFATA), States are already required to separately report the location
of both the entity receiving the subaward and the primary location of
performance for all subawards of $30,000 and above.\22\ As previously
mentioned, in order to ensure that States include location information
in their triennial HSP problem identification, NHTSA has amended the
data sources that a State should consult for problem identification to
include geospatial data. Sec.  1300.11(b)(1)(ii).
---------------------------------------------------------------------------

    \22\ Public Law 109-282, as amended by section 6202 of Public
Law 110-252. Implemented at 2 CFR part 170.
---------------------------------------------------------------------------

    Finally, NHTSA has made a technical amendment to rearrange the
order of required project information so that Federal funding source(s)
is now the second required information item. 23 CFR 1300.12(b)(2)(ii).
NHTSA believes this will better reflect the connection States place
between project descriptions and the funding source.

4. Amendments to Project and Subrecipient Information (23 CFR
1300.12(d))
    As is explained in more detail in the annual report section, below,
NHTSA is amending Sec.  1300.12(d) to provide that all project
information in the annual grant application must be complete at the
time the State submits the annual report consistent with Sec.  1300.35.

D. Special Funding Conditions for Section 402 Grants (23 CFR 1300.13)

1. Planning and Administration (P & A) Costs (23 CFR 1300.13(a))
    Three commenters \23\ reiterated comments in response to the RFC
requesting that NHTSA increase the percentage of funds that can be
allocated to Planning and Administration (P & A) costs from 15% to 18%
to cover increased costs due to the new BIL planning requirements,
inflation, and the competitive employment market. GHSA further
explained that this increase would give States greater flexibility in
determining whether to fund staff programmatically or through P & A. NV
OTS noted that the increase would help States like Nevada that need to
maintain two separate offices for the HSO. In response to these last
two points, the agency notes that whether highway safety staff is
funded programmatically or through P & A is not dependent on the amount
of funds available but rather on specific roles and duties, and NV
OTS's maintenance of two separate offices for the HSO is not a
requirement imposed by NHTSA. However, after considering these comments
in light of new BIL requirements, NHTSA is increasing the States'
allowance for P & A costs to 18 percent to help offset rising costs and
to ensure that States have sufficient resources to fully implement the
planning and public engagement requirements in the BIL. The agency
expects that this P & A funding increase will lead to fulsome
implementation of the new longer-range planning structure created by
the BIL and robust public engagement efforts.
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    \23\ GHSA, MN DPS, and NV OTS.
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2. Participation by Political Subdivisions (Local Expenditure
Requirement) (23 CFR 1300.13(b))
    NHTSA is committed to ensuring that local political subdivisions
are an integral and valued part of State highway safety programs. Local
participants have unique knowledge of the specific safety problems and
a close connection to the communities that are ultimately served by the
programs funded by the highway safety grants. It is clear that Congress
shares this goal, as evidenced by the longstanding statutory
requirement that 40 percent of Section 402 grant funds apportioned to a
State be expended by the State's political subdivisions to carry out
local highway safety programs. See 23 U.S.C. 402(b)(1)(C). This
statutory provision necessarily requires specific administrative effort
to ensure that political subdivisions receive their share of Federal
highway safety grant funds. The BIL amended the operation of this
provision by removing the requirement that the local highway safety
programs to be funded be approved by the Governor while retaining the
rest of the local expenditure requirement. In response, the NPRM
proposed a new framework for this statutory requirement.
    GHSA expressed general support for reform of the local expenditure
requirement provided it resulted in less burden for States and
subrecipients. However, GHSA took issue with NHTSA's view that the BIL
amendment nullified one of the existing regulatory avenues for States
to demonstrate participation by political subdivisions, stating that
political subdivisions should still be allowed to request safety
expenditures on their behalf. NHTSA disagrees. The prior construction
of the requirement depended on a request by a political subdivision
that was connected to an approved local highway safety program. Without
that connection, there is no remaining link to demonstrate substantive
political subdivision participation. Moreover, the BIL's amendments
were not the only impetus for reconceptualizing the regulatory
implementation of the local expenditure requirement. As noted in the
NPRM, the proposed change was also informed by the new triennial
framework for highway safety programs, NHTSA's historical experience
administering this requirement, and comments received through the RFC
(addressed in the NPRM).
    Several commenters \24\ stated that the new process would increase
burdens for States and localities by creating unnecessary
administrative requirements. Congress' imposition of a local
expenditure requirement necessarily adds procedural responsibilities
that States must address. In NHTSA's view, active participation in the
selection of projects by the citizenry in local jurisdictions is a
desirable objective that should be welcomed in efforts to deploy grants
to improving highway safety. NHTSA recognizes that this requirement
poses some challenges, but believes that the proposed procedures are
less burdensome than commenters fear. Below, we walk through these
procedures.
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    \24\ DE OHS, GHSA, MN DPS, and NV OTS.
---------------------------------------------------------------------------

    States have three methods to demonstrate that expenditures qualify
as local expenditures: (1) direct expenditure by a political
subdivision; (2) expenditure on behalf of a subdivision where the
political subdivision is involved in the highway safety planning
process; (3) expenditure on behalf of a political subdivision where the
political subdivision directs expenditure through a documented request.
    The first method--direct expenditures--requires no further
explanation because it is well-understood by States and political
subdivisions and unquestionably falls within the statutory requirement.
However, NHTSA has long recognized that in some cases, it may be
advantageous for political subdivisions to allow States to expend grant
funds on their behalf. This enables smaller political subdivisions that
may have fewer resources to direct grant funds toward their highway
safety needs and allows political subdivisions, in general, to benefit
from the economies of scale that a State-run program can provide. That
said, because the statute provides that funds must be expended by
political subdivisions, it is incumbent on NHTSA and the States to
ensure that there is adequate documentation that the political
subdivision was involved in identifying its traffic safety needs and
provided input into the implementation of the activity. Following are
examples of how a State can demonstrate that expenditures on behalf of
a political subdivision qualify as local expenditures.
    Under the second method identified above, the State may provide
evidence that the political subdivision was involved in the State's
highway safety program planning processes. States can incorporate this
into existing processes, such as the public participation component of
the triennial HSP, the planning process to determine projects for
annual applications, or during the State's ongoing program planning
processes. For example, a representative of a local school board might
attend a virtual public engagement session for the State's triennial
HSP planning process and speak to the need for impaired driving
educational programs to be provided to students in that district. The
input by the school board at that time could simply consist of a broad
statement of need for an

educational program related to impaired driving in that district. If
the State wanted to determine whether other school districts had a
similar need, it could plan a specific virtual public engagement on the
need for educational programs in schools and invite all school
districts in the State or regions of the State to participate. The
State would enter into projects based on the identification of need and
implementation notes by the school board during the planning process.
Finally, to ensure that the activities implemented meet the needs of
the specific political subdivision, the State would obtain written
confirmation of acceptance by the school board for the project that the
State implements.
    Under the third method described above, the State may demonstrate
that a political subdivision directed the expenditure of funds through
a documented request by the political subdivision for an activity to be
carried out on its behalf. As noted in the NPRM, the request need not
be a formal application, but must contain a description of the
political subdivision's problem identification and a description of how
or where the activity should be deployed within the political
subdivision. For example, a representative of a town's government could
submit a request to the SHSO via letter or email showing that the town
has increased traffic crashes associated with a large sporting event
held in the area and requesting increased enforcement to be conducted
by the State's highway patrol during those events. It might also
request that the State carry out an accompanying media campaign leading
up to and during those times. If the town government has trouble
identifying the data to document the problem, the State may offer
technical assistance.
    The key in all situations where the State is relying on
expenditures on behalf of political subdivisions to qualify as a local
expenditure is the connection between the need identified and activity
requested by the political subdivision and the project that the State,
or another entity, carries out on the political subdivision's behalf.
    Some comments suggest a misunderstanding of the fundamental premise
of the local expenditure requirement. NV OTS argued that it is too
difficult for the State to process and for NHTSA to verify
documentation that supports the required political subdivision
involvement, and argued that NHTSA should allow States to allocate
resources based on problem identification without the burden of proving
political subdivision involvement. MoDOT argued that NHTSA should allow
statewide programs with local benefit to qualify as local expenditure.
However, it was clearly the intent of Congress, sustained over decades,
that State highway safety programs ensure that Federal funds make their
way into the hands (and decision-making authority) of political
subdivisions. The new BIL requirements concerning public input only
serve to reaffirm and amplify this interest in greater participation in
decision-making, and NHTSA has a responsibility to ensure that this
statutory command for local participation is effectively carried out.
The statutory requirement is focused on the expenditure of funds by
political subdivisions, not merely on local benefit.
    Several commenters \25\ argued that many localities do not have
sufficient resources to participate in the highway safety planning
process or to submit a detailed request for expenditures on their
behalf and worried that the new requirements would risk losing local
participants in State highway safety programs. The requirement for
local participation is not inherently burdensome for local
participants, and in any event, is an obligation imposed by statute.
The State is simply required to obtain identification of need and a
request for activities to be conducted, whether during the State's
highway safety planning process or as a direct request from the
political subdivision. A State could even solicit requests, and provide
a template for requests from political subdivisions. Under the BIL, as
before, States have a responsibility to ensure that political
subdivisions have the ability to participate in the highway safety
program. Whether it is at the planning level, via the meaningful public
engagement requirement, or through a request that the State execute a
project on behalf of a political subdivision, States have many
opportunities to work with localities to support their needs and meet
the local expenditure requirement. States can and should conduct
outreach and provide assistance to locals throughout the planning and
project development such processes, and NHTSA is available to assist
States in these efforts.
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    \25\ DE OHS, GHSA, MN DPS, and NV OTS.
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    GHSA requested that NHTA allow groups of localities to request
expenditures on their collective behalf. MN DPS explained that in many
grants, multiple local agencies partner to conduct activities and that
it would be difficult for the State to have each participating
political subdivision participate in the triennial HSP planning
process. NHTSA notes that the proposed definition of political
subdivision adopted in this rule includes associations comprised of
representatives of political subdivisions acting in their official
capacities. Similarly, a group of localities may submit a joint request
for activities that meets the requirements of Sec.  1300.13(b)(3)(ii),
so long as it is signed by each locality or a duly authorized
representative of the group.
    GHSA also noted that States have found more efficient ways of
reaching localities than the local expenditure mechanism by using
agreements with non-profit entities. NHTSA notes that a State may use
an agreement with a non-profit entity to carry out expenditures on
behalf of political subdivisions provided there is sufficient
documentation under Sec.  1300.13(b)(3) to demonstrate that the
political subdivisions were involved in identifying their traffic
safety needs and provided input into the implementation of the
activity.
    Finally, in response to a comment to the RFC, the NPRM noted that
State-sponsored communication efforts tied to high visibility
enforcement (HVE) campaigns may never qualify as local expenditures.
Several commenters \26\ expressed strong disagreement with this
position, arguing that media campaigns are an integral part of high
visibility enforcement whose benefits extend to localities throughout
the State. The agency notes that it is possible for some costs under a
program to qualify as local expenditures while other costs do not.
Local law enforcement participation in HVE campaigns via enforcement
subawards qualifies as a direct expenditure by political subdivisions.
States, however, are directly responsible for carrying out the
associated statewide advertising campaigns, although they may do so via
a contract. Contracts for statewide HVE media campaigns, even if made
with political subdivision, do not qualify as local expenditures
because they are, by definition, an extension of State performance. See
2 CFR 200.331. NHTSA has added regulatory text to clarify that direct
expenditures for media efforts may be credited to political
subdivisions only if those expenditures are made under a subaward from
the State. Note that this restriction on media campaigns applies only
to statewide media efforts associated with HVE campaigns. States are
encouraged to enter into subawards with political subdivisions to carry
out targeted local media campaigns, and the

costs of such efforts would qualify as local expenditures.
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    \26\ CT HSO, DE OHS, GHSA, and MN DPS.
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3. Congressionally Specified Uses of Funds (23 CFR 1300.13(c-g))
    The BIL amended the prohibition on funding automated traffic
enforcement systems. 23 U.S.C. 402(c)(4). Pamela Bertone urged that
laws related to speed camera placement be changed, and also recommended
using police officers as ``mobile cameras'' that write digital
citations instead of making a traffic stop. Congress and the States--
not NHTSA--have the authority to pass laws, and NHTSA lacks the
discretion to compel issuance of ``digital citations.'' NHTSA has
incorporated BIL language that specifically defines automated traffic
enforcement systems as a camera and specifically excludes devices
operated by law enforcement officers. See 23 U.S.C. 402(c)(4)(A) and 23
CFR 1300.3.

VI. National Priority Safety Program and Racial Profiling Data
Collection (Subpart C)

    The Section 405 and Section 1906 grant programs provide incentive
grants that focus on National priority safety areas identified by
Congress. Under this heading, NHTSA responds to comments related to the
grants under Section 405--Occupant Protection, State Traffic Safety
Information System Improvements, Impaired Driving Countermeasures,
Distracted Driving, Motorcyclist Safety, Nonmotorized Safety,
Preventing Roadside Deaths, and Driver and Officer Safety Education, as
well as the Section 1906 grant--Racial Profiling Data Collection, as
applicable.
    GHSA reiterated its request under the RFC that NHTSA create a
complete qualification checklist for each Section 405 grant program in
order to assist States in developing and providing the required
information, and clarified that this checklist could be provided as
guidance rather than as part of the final rule. The agency again
declines to adopt this request. As noted in the NPRM, appendix B is
formatted to serve as the application framework for States and provides
a list of application requirements at a high level similar to a
checklist. However, States remain responsible for reading and complying
with the relevant statutory and regulatory text, which contain the full
details of application criteria and qualification requirements. A
separate checklist could lead States to overlook important aspects of
application requirements.

A. General (23 CFR 1300.20)

    The 5-State DOTs noted their support for the NPRM provisions that
ensure that any unawarded Section 405 grant funds are transferred to
the Section 402 program and encouraged NHTSA to retain those provisions
in the final rule. This is a statutory requirement and NHTSA retains
those provisions without change in this final rule.

B. Maintenance of Effort (23 CFR 1300.21, 1300.22 and 1300.23)

    The 5-State DOTs acknowledged that NHTSA removed the Maintenance of
Effort (MOE) requirement in the NPRM and requested that NHTSA retain
that change. The BIL removed this requirement, and therefore NHTSA
retains that change.

C. Occupant Protection Grants (23 CFR 1300.21)

    The BIL removed the maintenance of effort requirement that was in
effect under the FAST Act, extended the period of time between
assessments for the assessment criterion for lower seat belt use
states, and expanded the allowable uses of funds under this grant
program. In the NPRM, NHTSA proposed amendments to the existing
regulatory language to implement those changes and to update existing
requirements to align with the new triennial HSP and annual application
framework. NHTSA received no comments related to the occupant
protection grants and therefore proposes no further changes to the
regulatory text in this final rule.

D. State Traffic Safety Information System Improvements Grants (23 CFR
1300.22)

    The BIL streamlined the application requirements by allowing States
to submit a certification regarding the State traffic records
coordinating committee (TRCC) and the State traffic records strategic
plan and removing the FAST Act requirement that States have an
assessment of their highway safety data and traffic records system.
States must still submit documentation demonstrating a quantitative
improvement in relation to a significant data program attribute of a
core highway safety database. The BIL removed the maintenance of effort
requirement that was in effect under the FAST Act and expanded the
allowable uses of funds under this grant program.
    AAMVA expressed general support for this grant program, including
the changes made by the BIL and proposed in the NPRM. AAMVA sought
clarification regarding how a State can quantify a previously
unavailable data element as a contributing element to a program that
previously did not use that data, and sought guidance on how to
incorporate new data to augment safety programs. First, NHTSA
encourages States to consider making improvements to the completeness
or integration of their traffic safety information systems and
specifically points States to two NHTSA publications that set forth
model minimum data elements in State traffic safety information
systems: the Model Minimum Uniform Crash Criteria (MMUCC) and the Model
Inventory of Roadway Elements (MIRE). While these publications do not
list every single data element that may be useful for a State highway
safety program, they provide an important set of data elements for the
crash and roadway data systems, respectively, and are a strong tool for
greater uniformity between and among State data systems. Second, NHTSA
confirms that States may add a new, not previously included, data
element to demonstrate the required quantitative improvement for their
Section 405(c) applications. Depending on the specific circumstances of
the improvement, a State may be able to demonstrate a baseline period
consisting of no (or ``zero'') data element paired with a performance
period showing either full or partial incorporation of that data
element into the system. These clarifications do not require amendments
to the regulatory text, so NHTSA makes no changes to the proposed
language.

E. Impaired Driving Countermeasures Grants (23 CFR 1300.23)

    The BIL made targeted amendments to the impaired driving
countermeasures grant programs, with the most significant changes
occurring to the interlock grant program, including allowing additional
means of compliance and a use of funds section that adds several
funding categories.
1. Qualification Criteria for Mid-Range and High-Range States (23 CFR
1300.23(e) and 23 CFR 1300.23(f))
    In the NPRM, NHTSA explained the basic requirements for States to
receive an impaired driving countermeasures grant. The qualifying
criteria in the BIL remain focused on the State's average impaired
driving fatality rate and a determination of whether the State
qualifies as a low-, mid-, or high-range State. For low-range States,
the agency's proposal provides for the submission of assurances, while
States with higher fatality rates are required, at a minimum, to
establish an impaired driving task force and develop and submit a
statewide impaired driving plan. The agency continues the streamlined
aspects of the application process, noting that all that is required

is the submission of a single document--the statewide impaired driving
plan (in addition to any required assurances and certifications).
    The agency explained in the NPRM that it had reviewed the prior
implementation of these terms and determined that some changes were
necessary to ensure that States with higher average impaired driving
fatality rates continue to take a sufficiently comprehensive approach.
For the impaired driving plan, required for mid- and high-range States,
the proposal specified that the plan should continue to be organized in
accordance with NHTSA's Uniform Guidelines for State Highway Safety
Programs No. 8--Impaired Driving.\27\ The proposal reinforced the
concept that overall program management and strategic direction are
features of the plan, as well as community engagement and involvement
in coalitions. Although States are free to address other related areas,
the impaired driving plan must consist of sections covering program
management and strategic planning; prevention, including community
engagement and coalitions; criminal justice systems; communications
programs; alcohol and other drug misuse, including screening,
treatment, assessment and rehabilitation; and program evaluation and
data. The agency received no comments on the proposed changes to the
impaired driving plan.
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    \27\ One commenter provided an out-of-scope comment for this
rulemaking requesting that the agency revise Guideline No. 8 to be
more inclusive of behavioral health providers with more focus on the
treatment of alcohol and substance abuse. The agency notes the
information provided and will consider it as part of any effort to
revise Guideline No. 8.
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    As part of its proposal, the agency also revised the requirements
associated with the statewide impaired driving task force by
identifying additional key members, explaining that the fields
identified help ensure that the required impaired driving plans remain
comprehensive. In addition to key stakeholders from the State highway
safety office, State and local law enforcement, and representatives of
the criminal justice system, the agency's proposal added stakeholders
from the following groups to align with the components of the impaired
driving plans: public health, drug-impaired driving countermeasures
(such as a DRE coordinator), and communications and community
engagement.
    In response to these proposed additions, the agency received
comments from GHSA, the Coalition of Ignition Interlock Manufacturers,
and Mitchell Berger. GHSA thought the inclusion of the additional
groups was ``arbitrary'' and identified other groups that could be
included as part of a comprehensive task force requirement. GHSA also
stated that the change to increase the task force membership was not
dictated by the statute and that the agency should show more deference
to States on task force membership. Generally, the agency's proposal
does defer to States on task force membership and the process by which
the task force creates the impaired driving plan. NHTSA's intent was to
identify broad stakeholder groups, without imposing other requirements
such as experience or background for individuals or even the process by
which the State identifies a particular individual to a group. In a few
areas, the proposal used terms specific to a particular skillset such
as an expert or specialist. Since our intent was to identify broad
groups only, these terms have been removed in the final rule. Sec.
1300.23(e)(1)(ii)(E) and Sec.  1300.23(e)(1)(ii)(F).
    The agency also continues to defer to the States on the process
used to create the plan itself. However, as the agency explained, it
reviewed the plan and task force requirements under the BIL to make
sure they align with each other and keep pace with the evolving nature
of impaired driving problems across the nation. The agency is concerned
about the increasing number of impaired driving fatalities, including
those that are associated with a rise in drug impairment. When the task
force requirement was originally implemented nearly 10 years ago, the
agency focused mostly on ensuring that members of law enforcement and
the criminal justice system were represented. We understand now that
other disciplines must be part of the process. As the agency explained
in its proposal, the newly identified groups align with a specific part
of the required impaired driving plan--i.e., communications and
community engagement respond to the plan requirements on communications
and prevention; public health aligns with alcohol and drug misuse; and