Uniform Procedures for State Highway Safety Grant Programs

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

23 CFR Part 1300

[Docket No. NHTSA-2016-0057]

RIN 2127-AL71

Uniform Procedures for State Highway Safety Grant Programs

AGENCY:

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

ACTION:

Interim final rule; request for comments.

SUMMARY:

This action establishes revised uniform procedures implementing State highway safety grant programs, as a result of enactment of the Fixing America's Surface Transportation (FAST) Act. It also reorganizes, streamlines and updates some grant requirements. This document is being issued as an interim final rule to provide timely guidance to States about the application procedures for highway safety grants starting in year 2017. The agency requests comments on the rule. The agency will publish a notice responding to any comments received and, if appropriate, will amend provisions of the regulation.

DATES:

This interim final rule is effective on May 23, 2016. Comments concerning this interim final rule are due October 31, 2016. In compliance with the Paperwork Reduction Act, NHTSA is also seeking comment on a revised information collection. See the Paperwork Reduction Act section under Regulatory Analyses and Notices below. Comments concerning the revised information collection requirements are due October 31, 2016 to NHTSA and to the Office of Management and Budget (OMB) at the address listed in the

ADDRESSES

section.

ADDRESSES:

You may submit number identified in the heading of this document by any of the following methods:

•

Federal eRulemaking Portal:

Go to

http://www.regulations.gov.

Follow the online instructions for submitting comments.

•

Mail:

Docket Management Facility, M-30, U.S. Department of Transportation, West Building, Ground Floor, Rm. W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

•

Hand Delivery or Courier:

West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m. Eastern Time, Monday through Friday, except Federal holidays.

•

Fax:

(202) 493-2251.

Regardless of how you submit your comments, please mention the docket number of this document.

You may also call the Docket at 202-366-9324.

Comments regarding the revised information collection should be submitted to NHTSA through one of the preceding methods and a copy should also be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725-17th Street NW., Washington, DC 20503, Attention: NHTSA Desk Officer.

Instructions:

For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the Supplementary Information section of this document. Note that all comments received will be posted without change to

http://www.regulations.gov,

including any personal information provided.

Privacy Act:

Please see the Privacy Act heading under Regulatory Analyses and Notices.

FOR FURTHER INFORMATION CONTACT:

For program issues:

Barbara Sauers, Director, Office of Grants Management and Operations, Regional Operations and Program Delivery, National Highway Traffic Safety Administration, Telephone number: (202) 366-0144; Email:

barbara.sauers@dot.gov.

For legal issues:

Jin Kim, Attorney-Advisor, Office of the Chief Counsel, National Highway Traffic Safety Administration, Telephone number: (202) 366-1834; Email:

jin.kim@dot.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

II. General Provisions

III. Highway Safety Plan

IV. National Priority Safety Program and Racial Profiling Data Collection

V. Administration of Highway Safety Grants

VI. Special Provisions for Fiscal Year 2017 Highway Safety Grants

VII. MAP-21 Comments

VIII. Notice and Comment, Effective Date and Request for Comments

IX. Regulatory Analyses and Notices

X. Public Participation

I. Executive Summary

On July 6, 2012, the President signed into law the “Moving Ahead for Progress in the 21st Century Act” (MAP-21), Public Law 112-141, which restructured and made various substantive changes to the highway safety grant programs administered by the National Highway Traffic Safety Administration (NHTSA). NHTSA issued an interim final rule (IFR) implementing the MAP-21 provisions and sought public comment. 78 FR 4986 (Jan. 23, 2013). Because MAP-21 was a two-year authorization with short extensions, the agency did not have an opportunity to address the comments received in response to the MAP-21 IFR.

On December 4, 2015, the President signed into law the Fixing America's Surface Transportation Act (FAST Act), Public Law 114-94, the first authorization enacted in over ten years that provides long-term funding certainty for surface transportation. The FAST Act amended NHTSA's 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), and it restored a small grant from a previous authorization. The FAST Act requires NHTSA to award grants pursuant to rulemaking. Today's action implements the FAST Act provisions, taking into account comments received in response to the MAP-21 IFR.

Unlike MAP-21, the FAST Act did not significantly change the structure of the grant programs. The FAST Act primarily made targeted amendments to the existing grant programs, providing more flexibility for States to qualify for some of the grants. Specifically, the FAST Act made limited administrative changes to the Section 402 grant program and made no changes to the contents of the Highway Safety Plan. However, the FAST Act made the following changes to the Section 405 grant program:

• Occupant Protection Grants—no substantive changes

• State Traffic Safety Information System Improvements Grants—no substantive changes

• Impaired Driving Countermeasures Grants—no substantive changes

• Motorcyclist Safety Grants—no substantive changes

• Alcohol-Ignition Interlock Law Grants—Added flexibility for States to qualify for grants

• Distracted Driving Grants—Added flexibility for States to qualify for grants

• State Graduated Driver Licensing Incentive Grants—Added flexibility for States to qualify for grants

• 24-7 Sobriety Programs Grants—Established a new grant

• Nonmotorized Safety Grants—Established a new grant

In addition, the FAST Act restored (with some changes) the racial profiling grant authorized under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, Sec. 1906, Public Law 109-59 (Section 1906).

The FAST Act requires NHTSA to award highway safety grants pursuant to rulemaking. In order to provide States with as much advance time as practicable to prepare grant applications and to ensure the timely award of all grants, the agency is proceeding with an expedited rulemaking. Accordingly, NHTSA is publishing this rulemaking as an IFR, with immediate effectiveness, to implement the application and administrative requirements of the highway safety grant programs.

This IFR sets 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 FAST Act, 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 existing procedures, each State must submit for NHTSA approval an annual Highway Safety Plan (HSP) that identifies highway safety problems, establishes performance measures and targets, and describes the State's countermeasure strategies and projects to achieve its performance targets. (23 U.S.C. 402(k)) The agency is making several specific amendments to the HSP contents to foster consistency across all States and to facilitate the electronic submission of HSPs required under the FAST Act. (23 U.S.C. 402(k)(3))

As noted above, the FAST Act made no substantive changes to many of the National Priority Safety Program grants, provided additional qualification flexibility for others, and established new grants. For grants without substantive changes (Occupant Protection Grants, State Traffic Safety Information System Improvements Grants, Impaired Driving Countermeasures Grants and Motorcyclist Safety Grants), the agency is simply aligning the application requirements with the HSP requirements under Section 402 to streamline and ease State burdens in applying for Section 402 and 405 grants. For Section 405 grants with additional flexibility (Alcohol-Ignition Interlock Law Grants, Distracted Driving Grants and Stated Graduated Driver Licensing Incentive Grants) and for the new grants (24-7 Sobriety Program Grants, Nonmotorized Grants and Racial Profiling Data Collection Grants), where the FAST Act identified specific qualification requirements, today's action adopts the statutory language with limited changes. The agency is also aligning the application requirements for these grants with the HSP requirements.

While many procedures and requirements continue unchanged by today's action, this IFR makes limited changes to administrative provisions to address changes in the HSP and changes made by the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 CFR part 200.

Finally, this IFR recodifies 23 CFR part 1200 at 23 CFR part 1300, the part associated with NHTSA programs. The section numbers remain largely the same as before except for the change from 1200 to 1300. (For example, Sec. 1200.3 Definitions becomes Sec. 1300.3 Definitions, Sec. 1200.11 Contents (Highway Safety Plan) becomes Sec. 1300.11 Contents (Highway Safety Plan), etc.) In this preamble, all references are to part 1300 instead of the corresponding part 1200.

The FAST Act retained the MAP-21 requirement for a consolidated single application due by July 1 of the fiscal year preceding the fiscal year of the grant. (23 U.S.C. 402(k)(2) and 402(k)(3)) Therefore, for fiscal year 2017 and subsequent fiscal years, the application deadline remains July 1 prior to the fiscal year of the grant. Because of the short timeframe between today's action and the July 1 application deadline, the agency is taking the following approach to ease the application burden on States. For those programs without substantive changes (Occupant Protection, State Traffic Safety Information System Improvements, Impaired Driving Countermeasures, and Motorcyclist Safety), we are delaying the requirement for States to follow the new regulatory process until fiscal year 2018 grant applications. For these grants, States may follow the application requirements in 23 CFR part 1200, switching to the part 1300 requirements for fiscal year 2018 grants and thereafter. (To provide maximum advance notice, the agency informed States of this option in a March 31, 2016 letter.) However, for grants with substantive changes (Alcohol-Ignition Interlock Laws, Distracted Driving, and State Graduated Driver Licensing) and for new grants (24-7 Sobriety Program, Nonmotorized Safety, and Racial Profiling Data Collection), States must follow the application requirements in today's IFR at 23 CFR part 1300, commencing with fiscal year 2017 grant applications. For additional flexibility, States may elect to follow the new, more streamlined procedures (

i.e.,

the part 1300 requirements) for fiscal year 2017 grant applications for the former group of grants as well (

i.e.,

those without substantive changes). In all cases, the requirements under 23 CFR part 1300 to submit grant application and administration information through the Grants Management Solutions Suite (discussed below) will not apply until FY 2018 applications, when that system becomes fully functional.

In this IFR, the agency also responds to comments from the MAP-21 IFR. Because MAP-21 was a two-year authorization with multiple short extensions, the agency did not have the opportunity to address comments. Those comments are now addressed within the relevant sections below and in Section VII below.

For ease of reference, the preamble identifies in parentheses within each subheading and at appropriate places in the explanatory paragraphs the new CFR citation for the corresponding regulatory text.

II. General Provisions

A. Definitions. (23 CFR 1300.3)

This IFR adds definitions for the following terms: Annual report file, countermeasure strategy, data-driven, evidence-based, fatality rate, Fatality Analysis Reporting System, final FARS, five-year rolling average, number of fatalities, number of serious injuries, performance measure, performance target, Section 1906, and serious injuries. Most of these terms and definitions are generally understood by States. Today's action also amends a few definitions, such as those for program area and project, to clarify and distinguish terms that often have been used interchangeably. These amended definitions will help provide consistency across all State HSPs. Finally, this IFR deletes the term “Approving Official” and replaces it with “Regional Administrator,” used throughout this part.

B. State Highway Safety Agency. (23 CFR 1300.4)

Today's action updates the authorities and functions of the State Highway Safety Agency, also referred to as the State Highway Safety Office. While the IFR explicitly adds the duty to manage Federal grant funds in accordance with all Federal and State requirements, this is not a new obligation of State Highway Safety Offices, but rather one that has always been required. Consistent with the Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, 2 CFR part 200, the agency is adding the requirement that State Highway Safety Offices must conduct a risk assessment

of subrecipients and monitor subrecipients based on risk.

III. Highway Safety Plan

MAP-21 made significant changes to highway safety programs under 23 U.S.C. Chapter 4. It required a performance-based Highway Safety Plan with performance measures and targets. (23 U.S.C. 402(k)) Prior to MAP-21, there was a clear separation between the “Highway Safety Performance Plan,” where States included performance measures and targets, and the “Highway Safety Plan,” where States developed projects and activities to implement the highway safety program. MAP-21 consolidated these requirements under the Highway Safety Plan, where the performance plan was an element of the development of the State highway safety program.

In addition to establishing a performance-based HSP, MAP-21 established the HSP as the single, consolidated application for all highway safety grants under 23 U.S.C. Chapter 4. While the MAP-21 IFR established the beginnings of a single, consolidated application, today's action more fully integrates the Section 402 and Section 405 programs, establishing the HSP as the State's single planning document accounting for all behavioral highway safety activities.

This IFR clarifies the HSP content (highway safety planning process, performance measures and targets, and countermeasure strategies and projects), so that these elements may also serve as a means to fulfill some of the application requirements for certain Section 405 grants. By creating a link between the HSP content requirements provided in Section 402 and the Section 405 grant application requirements, this IFR streamlines the NHTSA grant application process and relieves some of the burdens associated with the previous process.

The FAST Act amended Section 402 to require NHTSA to develop procedures to allow States to submit highway safety plans, including any attachments to the plans, in electronic form. (23 U.S.C. 402(k)(3)) NHTSA intends to implement this provision of the FAST Act with the Grants Management Solutions Suite (GMSS) beginning with fiscal year 2018 grants, as discussed in more detail below. GMSS is the improved and enhanced electronic system that States will use to submit the HSP to apply for grants, receive grant funds, make amendments to the HSP throughout the fiscal year, manage grant funds and invoice expenses. This electronic system will replace the Grants Tracking System that States currently use to receive grant funds and invoice expenses.

A. General

The Highway Safety Act of 1966 (23 U.S.C. 401

et seq.

) established a formula grant program to improve highway safety in the United States. As a condition of the grant, States must meet certain requirements contained in Section 402. The FAST Act made limited administrative changes to Section 402 requirements and made no changes to the contents of the Highway Safety Plan. Section 402(a) continues to require each State to have a highway safety program, approved by the Secretary of Transportation (delegated to NHTSA), which is designed to reduce traffic crashes and the resulting deaths, injuries, and property damage from those crashes. Section 402(a) also continues to require State highway safety programs to comply with uniform guidelines promulgated by the Secretary.

Section 402(b), which sets forth the minimum requirements with which each State highway safety program must comply, requires the HSP to provide for a data-driven traffic safety enforcement program to prevent traffic violations, crashes, and crash fatalities and injuries in areas most at risk for such incidents. Section 402(b) continues to require each State to coordinate its HSP, data collection, and information systems with the State strategic highway safety plan as defined in 23 U.S.C. 148(a). This requirement to coordinate these elements into a unified State approach to highway safety promotes comprehensive transportation and safety planning and program efficiency in the States. Coordinating the HSP planning process with the programs of other DOT agencies, where possible, will ensure alignment of State performance targets where common measures exist, such as for fatalities and serious injuries. States are encouraged to use data to identify performance measures beyond these consensus performance measures (

e.g.,

distracted driving, bicycles). NHTSA collaborated with other DOT agencies to promote alignment among performance measures, and that alignment is reflected in this IFR.

B. Highway Safety Plan Contents

The FAST Act retained the significant changes in MAP-21 for States to develop performance-based highway safety programs. Beginning with fiscal year 2014 HSPs, States provided additional information in the HSP to meet the performance-based, evidence-based requirements of MAP-21. This IFR reorganizes and further refines the information provided in the MAP-21 IFR to help streamline the HSP content requirements and align them with the Section 405 grant requirements.

In response to the MAP-21 IFR, one commenter asked why two separate plans were required, and recommended a single highway safety performance plan, the first part describing processes used to develop the plan and the second part describing a detailed spending plan. The change required under MAP-21 did not create two plans. Rather, under MAP-21, the HSP is the only plan that the State submits as its application for highway safety grants. The required content of the HSP includes a description of the highway safety planning process, a performance plan identifying performance measures and targets, and countermeasure strategies and projects. These content requirements encourage the linkage of each step of the planning process: Problem identification linked to data driven performance measures and targets, followed by countermeasure strategies and projects to achieve those targets. The “performance plan” is an integral part of the HSP. The agency believes that MAP-21 made it clear that problem identification and performance measures drive the specific projects and activities in the HSP.

1. Highway Safety Planning Process. (23 CFR 1300.11(a))

Today's action reorganizes and clarifies the section of the HSP that describes the State's highway safety planning process. As in the MAP-21 IFR, the State must describe data sources and processes used to develop its highway safety program, including problem identification, description of performance measures, establishment of performance targets, and selection of countermeasure strategies and projects. This section continues to require identification of participants in the planning process, the data sources consulted, and the results of coordination of the HSP with the State HSIP. This IFR clarifies that this section of the HSP must also include a description of the State's problems and methods for project selection. These elements are a typical part of the State highway safety planning process.

2. Performance Report. (23 CFR 1300.11(b))

This requirement is unchanged from the one codified at 23 CFR 1200.11(d). States should review and analyze the previous year's HSP as part of the development of a data-driven HSP. As required in the MAP-21 IFR, States

must provide a program-area-level report on their success in meeting performance targets. The agency believes that such information is valuable in the development of the HSP. If a State has not met its performance targets in the previous year's HSP, today's action also requires the State to describe how it will adjust the upcoming HSP to better meet performance targets. However, the agency believes that States should continuously evaluate and change their HSP to meet the statutory requirement that the highway safety program be “designed to reduce traffic crashes and the resulting deaths, injuries, and property damage from those crashes.”

3. Performance Plan. (23 CFR 1300.11(c))

MAP-21 specified that HSPs must contain the performance measures identified in “Traffic Safety Performance Measures for States and Federal Agencies” (DOT HS 811 025), jointly developed by NHTSA and the Governors Highway Safety Association (GHSA). NHTSA and GHSA agreed on a minimum set of performance measures to be used by States and federal agencies in the development and implementation of behavioral highway safety plans and programs. An expert panel from NHTSA, the Federal Highway Administration (FHWA), the Federal Motor Carrier Safety Administration, State highway safety offices, academic and research organizations, and other key groups assisted in developing these measures. Originally, 14 measures were established. In accordance with MAP-21, NHTSA and GHSA coordinated to identify a new performance measure—bicyclist fatalities. Currently, States report on 15 measures—11 core outcome measures,

1

one core behavior measure,

2

and three activity measures

3

—that cover the major areas common to HSPs, using existing data systems. (23 U.S.C. 402(k)) This minimum set of performance measures addresses most of the National Priority Safety Program areas, but it does not address all of the possible highway safety problems in a State or all of the National Priority Safety Programs specified in Section 405. For highway safety problems identified by the State or relevant to a particular Section 405 grant application, and for which consensus performance measures have not been identified (

e.g.,

distracted driving and bicycles), this IFR clarifies the existing requirements for States to develop their own evidence-based performance measures.

1

States set goals and report progress on the following outcome measures: Number of traffic fatalities (FARS); Number of serious injuries in traffic crashes (State crash data files); Fatalities/VMT (FARS, FHWA); Number of unrestrained passenger vehicle occupant fatalities, all seat positions (FARS); Number of fatalities in crashes involving a driver or motorcycle operator with a BAC of .08 and above (FARS); Number of speeding-related fatalities (FARS); Number of motorcyclist fatalities (FARS); Number of unhelmeted motorcyclist fatalities (FARS); Number of drivers age 20 or younger involved in fatal crashes (FARS); Number of pedestrian fatalities (FARS); and Number of bicyclist fatalities (FARS).

2

States set goals and report progress on one behavior core measure—observed seat belt use for passenger vehicles, front seat outboard occupants (survey).

3

States report on the following activity core measures: Number of seat belt citations issued during grant-funded enforcement activities (grant activity reporting); Number of impaired driving arrests made during grant-funded enforcement activities (grant activity reporting); Number of speeding citations issued during grant-funded enforcement activities (grant activity reporting).

MAP-21 provided additional linkages between NHTSA-administered programs and the programs of other DOT agencies coordinated through the State strategic highway safety plan (SHSP) administered by FHWA, as defined in 23 U.S.C. 148(a). NHTSA and FHWA collaborated to harmonize three common performance measures across the programs of the two agencies (fatalities, fatality rate, and serious injuries) to ensure that the highway safety community is provided uniform measures of progress. Today's action aligns the State performance measures and targets that are common to both NHTSA and FHWA. Consistent with FHWA's rulemaking on performance measures (81 FR 13882, Mar. 15, 2016), today's action requires that performance measures use 5-year rolling averages and that the performance targets for the three common performance measures be identical to the State DOT targets reported in the Highway Safety Improvement Program (HSIP) annual report, as coordinated through the SHSP.

The 5-year rolling average is calculated by adding the number of fatalities or the number of serious injuries, as they pertain to the performance measure, for the most recent 5 consecutive calendar years ending in the year for which the targets are established. The annual report file (ARF) for FARS may be used, but only if final FARS is not yet available. The sum of the fatalities or the serious injuries is divided by five and then rounded to the tenth decimal place for the fatality number and the serious injury number. The fatality rate is determined by calculating the number of fatalities per vehicle mile traveled for each of the five years, dividing by five, and then rounding to the thousandth decimal place.

States must report serious injuries using the Model Minimum Uniform Crash Criteria (MMUCC) Guideline, 4th Edition by April 15, 2019. States may use serious injuries coded as “A” on the KABCO

4

injury classification scale, through use of the conversion tables developed by NHTSA, until April 15, 2019. After that date, all States must use “suspected serious injury (A)” as defined in the MMUCC, 4th Edition. This requirement will provide for greater consistency in the reporting of serious injuries and allow for better communication of serious injury data at the national level. For clarity, NHTSA also adds a definition for serious injuries and number of serious injuries. Consistent with the FHWA rulemaking on performance measures, the “number of serious injuries” performance measure must account for crashes involving a motor vehicle traveling on a public road, which is consistent with FARS. State crash databases may contain serious injury crashes that did not involve a motor vehicle. In order to make the data consistent for the performance measures, States will only report serious injury crashes that involved a motor vehicle.

4

KABCO refers to the coding convention system for injury classification established by the National Safety Council.

A number of commenters to the MAP-21 IFR recommended that the agency include performance measures for bicycle and pedestrian fatalities and injuries. Since fiscal year 2014, States have been required to report on a performance measure for the number of pedestrian fatalities, as provided in the “Traffic Safety Performance Measures for States and Federal Agencies.” As noted earlier, NHTSA and GHSA collaborated to identify a new performance measure—bicyclist fatalities—on which States must report beginning with fiscal year 2015 HSPs. (23 U.S.C. 402(k)) While this IFR does not require performance measures for bicycle and pedestrian serious injuries, the agency refers commenters to FHWA's new non-motorized performance measure for the number of combined non-motorized fatalities and non-motorized serious injuries in a State.

One commenter stated that the requirement for GHSA coordination acted as a limitation on the performance measures that could be required by NHTSA. The statute requires NHTSA to coordinate with GHSA in making revisions to the set of required performance measures (23 U.S.C.

402(k)), and NHTSA does not intend to impose additional performance measures without such coordination. For example, NHTSA and GHSA worked quickly to develop the new bicyclist fatalities performance measure to address this growing highway safety problem.

4. Highway Safety Program Area Problem Identification, Countermeasure Strategies, Projects and Funding. (23 CFR 1300.11(d))

The Federal statute requires the State to describe its strategies in developing its countermeasure programs and selecting the projects to allow it to meet the highway safety performance targets. The HSP must continue to include a description of the countermeasure strategies and projects the State plans to implement to reach the performance targets identified by the State in the HSP. Today's action reorganizes and clarifies these requirements.

For each Program Area, the HSP must describe the countermeasure strategies and the process (including data analysis) for selecting that countermeasure strategy and the corresponding projects. At a minimum, the HSP must describe the overall projected traffic safety impacts, just as the MAP-21 regulation required. The HSP must also link the countermeasure strategies to the problem identification data, performance targets and allocation of the funds to projects. One commenter to the MAP-21 IFR was concerned that this is beyond what was mandated by MAP-21. Section 402(k)(e)(B) required then and still requires the contents of the HSP to include “a strategy for programing funds apportioned to the State under this section on projects and activities that will allow the State to meet the performance targets . . . .” An overall assessment of the impact of chosen strategies provides the necessary evidence and justification to support the projects and activities selected by the State to achieve its performance targets. In order to develop a program to achieve its targets, the State needs to conduct such an assessment or analysis. Accordingly, today's action retains this requirement from the MAP-21 IFR.

For each countermeasure strategy, the HSP must also provide project level information, including identification of project name and description, subrecipient/contractor, funding sources, funding amounts, amount for match, indirect cost, local benefit and maintenance of effort (as applicable), project number, and funding code. Finally, for each countermeasure strategy, the HSP must include data analysis to support the effectiveness of the selected countermeasure strategy. A number of States already include much of this information, but today's action now requires this information to promote uniformity among HSPs and also to allow the agency to implement the GMSS for the electronic submission of HSPs. The agency anticipates that beginning in fiscal year 2018 States will be able to enter this information in the GMSS as part of the HSP.

NHTSA does not intend to discourage innovative countermeasures, especially where few established countermeasures currently exist, such as in distracted driving. Innovative countermeasures that may not be fully proven but that show promise based on limited practical application are encouraged when a clear data-driven safety need has been identified. As evidence of potential success, justification of new countermeasures can also be based on the prior success of specific elements from other effective countermeasures.

The FAST Act continues the requirement for States to include a description of their evidence-based traffic safety enforcement program to prevent traffic violations, crashes, crash fatalities, and injuries in areas most at risk for crashes. Today's action clarifies this requirement and allows States to cross-reference existing projects in the HSP to demonstrate an evidence-based traffic safety enforcement program. Allowing States to cross-reference projects identified under countermeasure strategies will alleviate the burden of duplicative entries.

The FAST Act continues the requirement that a State must provide assurances that it will implement activities in support of national high-visibility law enforcement mobilizations coordinated by the Secretary of Transportation. In addition to providing such assurances, the State must describe in its HSP the planned high-visibility enforcement strategies to support national mobilizations for the upcoming grant year and provide information on those activities. Based on requests to define the level of participation required, today's notice clarifies this requirement. For example, the FAST Act requires NHTSA to implement three high-visibility enforcement campaigns on impaired driving and occupant protection each year. (23 U.S.C. 404) States are required to support these three campaigns as a condition of a Section 402 grant. NHTSA intends to identify the specific dates of the national mobilizations and provide programmatic ideas and resources for the campaigns on

www.trafficsafetymarketing.gov.

Under the MAP-21 IFR, States submitted as part of their HSP a program cost summary (HS Form 217) and a list of projects (including an estimated amount of Federal funds for each project) that the State proposed to conduct in the upcoming fiscal year to meet the performance targets identified in the HSP. States were required to keep the project list up-to-date and to include identifying project numbers for each project on the list. Today's action eliminates the HS Form 217 and the corresponding list of projects beginning with fiscal year 2018 grants, but not the reporting requirement. Instead, States will be required to provide project information electronically in the GMSS. This will allow States to rely on project information in the HSP to apply for some Section 405 grants without providing duplicative information. States will be able to cross reference the information in their Section 405 application.

The FAST Act continues the Teen Traffic Safety Program that provides for Statewide efforts to improve traffic safety for teen drivers. States may elect to incorporate such a Statewide program as an HSP program area. If a State chooses to do so, it must include project information related to the program in the HSP.

Finally, the FAST Act continues the “single application” requirement that State applications for Section 405 grants be included in the HSP submitted on July 1 of the fiscal year preceding the fiscal year of the grant. Today's action also requires the Section 1906 grant application to be submitted as part of the HSP. As under the MAP-21 IFR, States will continue to submit certifications and assurances for all 23 U.S.C. Chapter 4 and Section 1906 grants, signed by the Governor's Representative for Highway Safety, certifying the HSP application contents and providing assurances that they will comply with applicable laws and regulations, financial and programmatic requirements and any special funding conditions. Only the Governor's Representative for Highway Safety may sign the certifications and assurances required under this IFR. The Certifications and Assurances will now be included as appendices to this part.

C. Review and Approval Procedures. (23 CFR 1300.14)

Effective October 1, 2016, the FAST Act specifies that NHTSA must approve or disapprove the HSP within 45 days after receipt. This provision will be implemented with fiscal year 2018 grant applications. (See Section VI.) As in past practice, NHTSA may request

additional information from a State regarding the contents of the HSP to determine whether the HSP meets statutory, regulatory and programmatic requirements. To ensure that HSPs are approved or disapproved within 45 days, States must respond promptly to NHTSA's request for additional information. Failure to respond promptly may delay approval and funding of the State's Section 402 grant.

Within 45 days, the Regional Administrator will approve or disapprove the HSP, and specify any conditions to the approval. If the HSP is disapproved, the Regional Administrator will specify the reasons for disapproval. The State must resubmit the HSP with the necessary modifications to the Regional Administrator. The Regional Administrator will notify the State within 30 days of receipt of the revised HSP whether it is approved or disapproved.

NHTSA will also complete review of Section 405 grant applications within 45 days and notify States of grant award amounts early in the fiscal year. Because the calculation of Section 405 grant awards depends on the number of States meeting the qualification requirements, States must respond promptly to NHTSA's request for additional information or face disqualification from consideration for a Section 405 grant. The agency does not intend to delay grant awards to States that comply with grant submission procedures due to the inability of other States to meet submission deadlines.

D. Apportionment and Obligation of Grant Funds. (23 CFR 1300.15)

The provisions in the MAP-21 IFR regarding the apportionment and obligation of grant funds remain largely unchanged. As discussed above, the agency will replace the HS Form 217 so that States can enter the information directly in the GMSS. States will be able to use the GMSS to obligate and voucher for expenses as well as to amend the HSP throughout the fiscal year. beginning with fiscal year 2018 grants.

IV. National Priority Safety Program and Racial Profiling Data Collection.

Under this heading, we describe the requirements set forth in today's action for the grants under Section 405—Occupant Protection, State Traffic Safety Information System Improvements, Impaired Driving Countermeasures, Distracted Driving, Motorcyclist Safety, State Graduated Driver Licensing Incentive and Nonmotorized Safety— and the Section 1906 grant—Racial Profiling Data Collection. The subheadings and explanatory paragraphs contain references to the relevant sections of this IFR where a procedure or requirement is implemented, as appropriate.

A. General. (23 CFR 1300.20)

Some common provisions apply to most or all of the grants authorized under Sections 405 and 1906. The agency is retaining most of these provisions without substantive change in this IFR—definitions (§ 1300.20(b)); qualification based on State statutes (§ 1300.20(d)); and matching (§ 1300.20(f)).

1. Eligibility and Application. (23 CFR 1300.20(c))

The eligibility provision in this IFR remains unchanged from the MAP-21 IFR. For all but the Motorcyclist Safety Grant program, eligibility under Section 405 and Section 1906 is controlled by the definition of “State” under 23 U.S.C. 401, which includes the 50 States, the District of Columbia, Puerto Rico, American Samoa, the Commonwealth of the Northern Mariana Islands, Guam and the U.S. Virgin Islands. For the Motorcyclist Safety grants, the 50 States, the District of Columbia and Puerto Rico are eligible to apply. This IFR, however, adds a provision related to general application requirements for Section 405 and Section 1906 grants. Specifically, in its application for Section 405 or Section 1906 grants, a State must identify specific page numbers in the HSP if it is relying on information in the HSP as part of its application for those programs. For example, if a State is relying on the occupant protection program area of the HSP to demonstrate problem identification, countermeasure strategies and specific projects required to meet the qualification requirements for an occupant protection plan (§ 1300.21(d)(1)), it must provide specific page numbers for the occupant protection program area in the HSP in its application for the Section 405 Occupant Protection Grant.

2. Award Determination and Transfer of Funds. (23 CFR 1300.20(e))

The FAST Act made changes conforming the grant allocations under Section 405. For all Section 405 grants except State Graduated Driver Licensing Incentive Grants, grant awards will be allocated in proportion to the State's apportionment under Section 402 for fiscal year 2009. For Section 1906, the FAST Act does not specify how the grant awards are to be allocated. For consistency with the other grants, and in accordance with past practice, NHTSA will allocate Section 1906 grant awards in the same manner. The FAST Act specifies a different treatment for State Graduated Driver Licensing Incentive Grant awards, which must be allocated in proportion to the State's apportionment under Section 402 for the particular fiscal year of the grant.

In determining grant awards, NHTSA will apply the apportionment formula under 23 U.S.C. 402(c) to all qualifying States, in proportion to the amount each such State receives under 23 U.S.C. 402(c), so that all available amounts are distributed to qualifying States to the maximum extent practicable. (§ 1300.20(e)(1)) However, the IFR provides that the amount of an award for each grant program may not exceed 10 percent of the total amount made available for that grant programs (except for the Motorcyclist Safety Grant and the Racial Profiling Data Collection Grant, which have a different limit imposed by statute). This limitation on grant amounts is necessary to prevent unintended large distributions to a small number of States in the event only a few States qualify for a grant award. (§ 1300.20(e)(2))

In the event that all funds authorized for Section 405 grants are not distributed, the FAST Act authorizes NHTSA to transfer the remaining amounts before the end of the fiscal year for expenditure under the Section 402 program. (23 U.S.C. 405(a)(8)) In accordance with this provision, NHTSA will transfer any unawarded Section 405 grant funds to the Section 402 program, using the apportionment formula. (§ 1300.20(e)(3)) In the event that all grant funds authorized for Section 1906 grants are not distributed, the FAST Act does not authorize NHTSA to reallocate unawarded Section 1906 funds to other State grant programs. Rather, any such funds will be returned for use under 23 U.S.C. 403, and do not fall within the scope of this IFR.

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

Under MAP-21, States were required to provide an assurance that they would maintain their aggregate expenditures from all sources within the State. The FAST Act amended this provision to focus only on State level expenditures, making compliance easier for States. The applicable provision now requires the lead State agency for occupant protection programs, impaired driving programs and traffic safety information system improvement programs to maintain its aggregate expenditures for those programs at or above the average level of such expenditures in fiscal

years 2014 and 2015 (“maintenance of effort” requirement). As under MAP-21, the agency has the authority to waive or modify this requirement for not more than one fiscal year. However, since the FAST Act makes compliance with the maintenance of effort requirement easier, waivers will be granted to States only under exceptional or uncontrollable circumstances. Maintenance of effort requirements have been a feature of these grants for many years, and States should not expect to receive waivers. We expect the State highway safety agency to plan for and meet these requirements each year.

In response to the MAP-21 IFR, two commenters requested guidance on maintenance of effort, stating that it was difficult for States to assure that local resources were maintained. The requirement for maintenance of effort to include local resources was a feature of MAP-21. As noted above, the FAST Act amendment limits the level of effort determination to the lead State agency responsible for the applicable programs.

C. Occupant Protection Grants. (23 CFR 1300.21)

The FAST Act continues the MAP-21 Occupant Protection Grants with only one substantive amendment regarding the use of funds by high seat belt use rate States. Today's IFR makes changes to effect the amendment. High belt use rate States are now permitted to use up to 100 percent of their Occupant Protection funds for any project or activity eligible for funding under section 402.

This IFR also amends program requirements to streamline the application and review process. Commenters to the MAP-21 IFR have noted, and the agency recognizes, that some Occupant Protection application materials are already required as part of the State's annual Highway Safety Plan. Today's notice addresses this consideration, where feasible, by directing States in their Occupant Protection application to cite to page numbers in the HSP containing descriptions and lists of projects and activities, in lieu of providing separate submissions.

1. Eligibility Determination. (23 CFR 1300.21(c))

Under the Occupant Protection Grant program, an eligible State can qualify for grant funds as either a high seat belt use rate State or a lower seat belt use rate State. A high seat belt use rate State is a State that has an observed seat belt use rate of 90 percent or higher; a lower seat belt use rate State is a State that has an observed seat belt use rate lower than 90 percent. Today's IFR retains the eligibility determination in the MAP-21 IFR.

2. Qualification Requirements for All States

To qualify for an Occupant Protection Grant, all States must meet several requirements. The agency is updating and amending some of these requirements to streamline application requirements, in light of information already provided in the HSP.

i. Occupant Protection Plan. (23 CFR 1300.21(d)(1))

The agency is amending this criterion to require States to submit an occupant protection plan each fiscal year, but the requirement may be satisfied by submissions typically included in the HSP.

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Under the MAP-21 IFR, States were required to submit an occupant protection plan in the first fiscal year (FY 2013) and provide updates to the plan in subsequent years. States were also required to submit an occupant protection program area plan in the HSP under 23 CFR 1200.11. The occupant protection program area in the HSP contains many of the same elements included in an occupant protection plan, such as problem identification, countermeasure strategies and projects to meet performance targets. This occupant protection program area is a continuing requirement in the HSP under § 1300.11. For this reason, this IFR is streamlining the occupant protection plan requirement for a Section 405(b) Occupant Protection Grant. The IFR now directs States to reference the material already provided in the HSP (by page number), and does not include additional burdens or requirements.

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The first year allowance under the MAP-21 IFR for providing an assurance related to the occupant protection plan no longer applies.

ii. Click It or Ticket. (23 CFR 1300.21(d)(2))

The FAST Act continues the requirement that States participate in the

Click It or Ticket

national mobilization in order to qualify for an Occupant Protection Grant. States are required to describe Click it or Ticket activities in their HSP. The agency is amending this criterion only to direct the States to cite to this description of activities in their HSP, in lieu of including a separate submission as part of their application.

iii. Child Restraint Inspection Stations. (23 CFR 1300.21(d)(3))

The FAST Act continues the requirement that States have “an active network of child restraint inspection stations.” The agency is amending this criterion to address considerations that the submission of comprehensive lists of inspection stations are burdensome and unnecessary. Today's IFR will require States to submit a table in their HSP documenting where the inspection stations are located and what populations they serve, including high risk groups. The State will also be required to certify that each location is staffed with certified technicians. The agency believes that this information will be sufficient for reviewers to evaluate whether there is an active network of stations.

iv. Child Passenger Safety Technicians. (23 CFR 1300.21(d)(4))

The FAST Act continues the requirement that States have a plan to recruit, train and maintain a sufficient number of child passenger safety technicians. The agency is amending this criterion to allow States to document this information in a table and submit it as part of the annual HSP, in lieu of providing a separate submission.

3. Additional Requirements for Lower Seat Belt Use Rate States

In addition to meeting the above requirements, States with a seat belt use rate below 90 percent must meet at least three of six criteria to qualify for grant funds. The agency is making changes to some of these criteria in today's IFR. Many of these changes address comments to streamline application materials. This IFR allows States to reference page numbers in the HSP in cases where such information has already been provided, in lieu of providing a separate submission.

i. Law-Based Criteria. (23 CFR 1300.21(e)(1) and (2))

The FAST Act continues two law-based criteria—primary seat belt use law and occupant protection laws—for Lower Seat Belt Use Rate States. The agency has reviewed comments related to legal requirements and exemptions under the primary belt and occupant protection law criteria. Commenters requested that NHTSA amend criteria to allow States more flexibility regarding minimum fines, additional exemptions and primary seat belt requirements. Legal criteria for primary seat belt and child restraint laws have been included in several of NHTSA's predecessor occupant protection grant programs. The agency adopted the specific requirements under the MAP-21 IFR with this consideration in mind. Given the maturity of the criteria under these

programs and safety considerations in moving highway safety laws forward, the agency does not believe any changes are warranted.

ii. Seat Belt Enforcement. (23 CFR 1300.21(e)(3))

This criterion requires a lower seat belt use rate State to “conduct sustained (on-going and periodic) seat belt enforcement at a defined level of participation during the year.” The agency is amending this criterion to clarify that sustained enforcement must include a program of recurring seat belt and child restraint enforcement efforts throughout the year, and that it must be in addition to the Click it or Ticket mobilization. The agency is also amending the defined level of participation to require that it be based on problem identification in the State. States will be required to show that enforcement activity involves law enforcement covering areas where at least 70 percent of unrestrained fatalities occur.

States are already required to include in the HSP an evidence-based traffic safety enforcement program and planned high-visibility enforcement strategies to support national mobilizations. (§ 1300.11(d)(5) and (6)) States should include information related to seat belt enforcement in these sections of the HSP. In this discussion, States must describe efforts to integrate seat belt enforcement into routine traffic enforcement throughout the year and engage law enforcement agencies in at-risk locations with high numbers of unrestrained fatalities to increase seat belt use throughout the year. The use of a few scheduled efforts to promote seatbelt use will not be sufficient to meet the standard of sustained enforcement. The agency is requiring that States submit the seat belt enforcement application material as part of the HSP, in lieu of a separate submission.

iii. High Risk Population Countermeasure Programs. (23 CFR 1300.21(e)(4))

As noted earlier, States are already required to cover the occupant protection program area, including an evidence-based traffic safety enforcement program and planned high-visibility enforcement strategies to support national mobilizations, in the HSP. These sections of the HSP contain many of the same elements to address high risk populations, such as problem identification, countermeasure strategies and projects to meet performance targets. If a State wishes to qualify under this criterion, it should include information related to at least two at-risk populations in those sections of the HSP. The agency is requiring that States submit high risk population countermeasure program materials as part of the HSP, in lieu of a separate submission.

iv. Comprehensive Occupant Protection Program. (23 CFR 1300.21(e)(5))

A lower seat belt use rate State must implement a comprehensive occupant protection program in which the State has conducted a NHTSA-facilitated program assessment, developed a Statewide strategic plan, designated an occupant protection coordinator, and established a Statewide occupant protection task force. The MAP-21 IFR permitted an assessment reaching back to 2005. Today's IFR includes an amendment to require that States have a more recent assessment of their program (within five years prior to the application date). Today's IFR also makes updates to the program requirements to emphasize the importance of a comprehensive occupant protection program that is based on data and designed to achieve performance targets set by the States. The IFR also stresses the importance of the occupant protection coordinator's role in managing the entire Statewide program. With enhanced knowledge of the Statewide program and activities, a strategic approach to the development of the occupant protection program area of the annual HSP can be developed and executed.

4. Use of Grant Funds. (23 CFR 1300.21(f))

In addition to listing all the qualifying uses, the agency has reorganized this section under the IFR to list special rules that cover any other statutory requirement conditioning how grant funds are spent. Specifically, high belt use rate States are now permitted to use up to 100 percent of their occupant protection funds for any project or activity eligible for funding under section 402.

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

The FAST Act made no changes to the State Traffic Safety Information System Improvements Grants authorized under MAP-21. However, in this IFR, NHTSA streamlines the application process to reduce the burden on States.

In response to the MAP-21 IFR, commenters generally expressed concern that application requirements were burdensome. One commenter objected to the requirement that States submit different data for the applications for fiscal years 2013 and 2014, despite being allowed to use the same performance measures for both years. The agency does not address this comment as it is specific to those years and no longer applies. The agency addresses additional comments under the relevant headings below.

1. Traffic Records Coordinating Committee (TRCC) Requirement. (23 CFR 1300.22(b)(1))

The role of the TRCC in the State Traffic Safety Information System Improvements Grant program under this IFR remains the same as it was under the MAP-21 IFR, but the application requirements have been streamlined. NHTSA has removed many TRCC requirements, and is instead requiring a more refined set of information in order to determine that a State's TRCC can meet the goals of the statute.

Two commenters stated that the documentation requirements for the TRCC in the MAP-21 IFR, including meeting minutes, reports and guidance, were burdensome. While it remains good practice to keep and retain meeting minutes, reports and guidance, this IFR requires submission of only the dates of the TRCC meetings held in the 12 months prior to application. In order to meet this requirement in future grant years, States will have to schedule at least 3 meetings for the upcoming fiscal year, but NHTSA no longer requires States to provide proposed dates of the meetings.

One commenter proposed reducing the required number of TRCC meetings from three times a year to twice a year. However, the statute explicitly requires that the TRCC meet at least 3 times each year. The statute also requires that the State designate a TRCC coordinator.

In order to ensure that the TRCC has a diverse membership that is able to provide necessary expertise, the State must submit a list identifying at least one member (including the member's home organization), that represents each of the following core safety databases: (1) Crash, (2) citation or adjudication, (3) driver, (4) emergency medical services/injury surveillance system, (5) roadway, and (6) vehicle databases. The State's TRCC should have a broad multidisciplinary membership that includes, among others, owners, operators, collectors and users of traffic records and public health and injury control data systems; highway safety, highway infrastructure, law enforcement or adjudication officials; and public health, emergency medical services (EMS), injury control, driver licensing and motor carrier agencies and

organizations. This diverse membership should serve to ensure that the TRCC has the authority and ability to access and review any of the State's highway safety data and traffic records systems.

2. Strategic Plan Requirement. (23 CFR 1300.22(b)(2))

This IFR requires a State to have a traffic records strategic plan that has been approved by the TRCC and describes specific quantifiable and measurable anticipated improvements in the State's core safety databases. More information on the requirements for performance measures is set forth in Section IV.D.3 below.

The Strategic Plan must identify all recommendations from the State's most recent traffic records system assessment and explain how each recommendation will be implemented or the reason a recommendation will not be addressed. One commenter stated that the requirement that a State explain why it will not address a particular recommendation is too burdensome and should be removed. However, NHTSA believes that the State's response to each recommendation, even those that it decides not to address, is necessary to ensure that the assessment recommendations serve their intended purpose of improving the State traffic safety information system. In order to emphasize the importance of coordinating the traffic records strategic plan with the State HSP, this IFR requires the State to identify the project in the HSP that will address each recommendation to be addressed in that fiscal year.

3. Quantifiable and Measurable Progress Requirement. (23 CFR 1300.22(b)(3))

Continuing the emphasis on performance measures and measurable progress, this IFR requires the State to provide a written description of the State's chosen performance measures along with supporting documentation. Performance measures must use the methodology set forth in the Model Performance Measures for State Traffic Records Systems (DOT HS 811 441) collaboratively developed by NHTSA and GHSA. Because NHTSA and GHSA may update this publication in future years, and intend the most recent version to be used, this IFR adds the language “as updated.” The Model Minimum Uniform Crash Criteria (MMUCC), the Model Impaired Driving Records Information System (MIDRIS), the Model Inventory of Roadway Elements (MIRE) and the National Emergency Medical Services Information System (NEMSIS) model data sets continue to be central to States' efforts to improve their highway safety data and traffic records systems. For this reason, NHTSA strongly encourages States to achieve a higher level of compliance with a national model inventory in order to demonstrate measurable progress.

To satisfy this quantitative progress requirement, the State must submit supporting documentation demonstrating that quantitative improvement was achieved within the preceding 12 months. The documentation must cover a contiguous 12 month performance period preceding the date of application starting no earlier than April of the preceding calendar year as well as a comparative 12 month baseline period. In the fiscal year 2017 application, for example, a State would submit documentation covering a performance period starting no earlier than April 1, 2015, and extending through March 31, 2016, and a baseline period starting no earlier than April 1, 2014, and extending through March 31, 2015. Acceptable supporting documentation will vary depending on the performance measure and database used, but may include analysis spreadsheets, system screen shots of the related query and aggregate results.

States are strongly encouraged to submit one or more voluntary interim progress reports to their Regional office documenting performance measures and supporting data that demonstrate quantitative progress in relation to one or more of the six significant data program attributes. NHTSA recommends submission of the interim progress reports prior to the application due date to provide time for the agency to interact with the State to obtain any additional information needed to verify the State's quantifiable, measurable progress. However, Regional office review of an interim progress report does not constitute pre-approval of the performance measure for the grant application.

4. Requirement To Conduct or Update a Traffic Records System Assessment. (23 CFR 1300.22(b)(4))

This IFR requires that a State's certification be based on an assessment that complies with the procedures and methodologies outlined in NHTSA's Traffic Records Highway Safety Program Advisory. As in the past, NHTSA will continue to conduct State assessments that meet the requirements of this section without charge, subject to the availability of funding.

5. Use of Grant Funds. (23 CFR 1300.22(d))

States may use grant funds awarded under this subsection for making data program improvements to their core highway safety databases (including crash, citation and adjudication, driver, EMS or injury surveillance system, roadway and vehicle databases) related to quantifiable, measurable progress in any of the significant data program attributes of accuracy, completeness, timeliness, uniformity, accessibility or integration. This IFR makes no change to the allowable use of funds under this grant program.

E. Impaired Driving Countermeasures Grants. (23 CFR 1300.23)

The FAST Act did not make substantive changes to the basic impaired driving countermeasures grants authorized under MAP-21, but added flexibility to the separate grant program for States with mandatory ignition interlock laws and created a new grant for States with 24-7 sobriety programs.

1. Determination of Range for Impaired Driving Countermeasures Grants

The FAST Act made no changes to the classification of low-, mid- and high-range States and to the use of average impaired driving fatality rates to determine what requirements a State must meet in order to receive a grant. This IFR retains those requirements in the MAP-21 IFR. To provide ample time to meet any application requirements, the agency will make the classification information available to the States in January each year.

2. Low-Range States. (23 CFR 1300.23(d))

States that have an average impaired driving fatality rate of 0.30 or lower are considered low-range States. Under the MAP-21 IFR, all States, including low-range States, were required to submit certain assurances indicating their intent to meet statutory requirements related to qualifying uses of funds and maintenance of effort requirements. This IFR makes no changes to that requirement.

3. Mid-Range States. (23 CFR 1300.23(e))

States that have an average impaired driving fatality rate that is higher than 0.30 and lower than 0.60 are considered mid-range States. The statute specifies that States qualifying as mid-range States are required to submit a Statewide impaired driving plan that addresses the problem of impaired driving. The submitted plan must have

been developed by a Statewide impaired driving task force within three years prior to the application due date.

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The first year allowance under the MAP-21 IFR for providing an assurance that the State will convene a statewide impaired driving task force to develop a statewide impaired driving plan no longer applies. Because the FAST Act continues the impaired driving countermeasures grant without substantive change, the agency interprets the first year of the grant as the first year that the impaired driving countermeasure grants were awarded,

i.e.,

fiscal year 2013. Accordingly, States no longer have the option to provide assurances that the State will convene a statewide impaired driving task force to develop a statewide impaired driving plan.

In an effort to streamline the application process developed under the MAP-21 IFR, mid-range States will be required to submit only a single document (in addition to any required certifications and assurances)—a Statewide impaired driving plan—to demonstrate compliance with the statute. In the past, a wide-range of formats and efforts were used by States to meet the plan requirements. In this IFR, the agency is requiring the use of a uniform format. Compliance will be determined based on the review of three specific sections.

The first section requires the State to provide a narrative statement that explains the authority of the task force to operate and describes the process used by the task force to develop and approve the plan. The State must also identify the date of approval of the plan in this section. This information will allow the agency to determine compliance with the requirement that the impaired driving plan be developed by a task force within three years prior to the application due date.

The second section continues the MAP-21 IFR requirement for a list of task force members. This IFR clarifies that the list must include the names, titles and organizations of all task force members. From that information, the agency must be able to determine that the task force includes key stakeholders from the State highway safety agency, State law enforcement groups, and the State's criminal justice system, covering areas such as prosecution, adjudication, and probation. The State may include other individuals on the task force, as determined appropriate, from areas such as 24-7 sobriety programs, driver licensing, data and traffic records, treatment and rehabilitation, public health, communication, alcohol beverage control, and ignition interlock programs. The State must include a variety of individuals from different offices that bring different perspectives and experiences to the task force. Such an approach ensures that the required plan will be a comprehensive treatment of impaired driving issues in a State. For guidance on the development of these types of task forces, we encourage States to review the NHTSA report entitled, “A Guide for State-wide Impaired Driving Task Forces.”

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The guide is

Available at http://www.nhtsa.gov/Driving+Safety/Impaired+Driving/A+Guide+for+Local+Impaired-Driving+Task+Forces.

The final section requires the State to provide its strategic plan for preventing and reducing impaired driving behavior. The agency is requiring that an impaired driving plan be organized in accordance with Highway Safety Program Guideline No. 8—Impaired Driving (“the Guideline”)

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and cover certain identified areas. The identified areas include prevention, criminal justice system, communications programs, alcohol and other drug misuse, and program evaluation and data. Each area is defined within the Guideline. States are free to cover other areas in their plans provided the areas meet one of the qualifying uses of funds (as identified in the FAST Act), but the plans must cover the identified areas. Plans that do not cover these areas are not eligible to receive a grant.

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The guideline is

Available at http://www.nhtsa.gov/nhtsa/whatsup/tea21/tea21programs/pages/ImpairedDriving.htm.

While NHTSA has identified the areas that must be considered, the agency has not defined a level of effort that must be exerted by the State in the development of the strategic plan (

e.g.,

how many task force meetings should be held; how many hours should be spent considering these issues). The agency expects that States will spend the time necessary to consider and address these important issues, in view of the substantial amount of grant funds involved. In our view, an optimal process involves a task force of 10 to 15 members from different impaired driving disciplines, meeting on a regular basis (at least initially), to review and apply the principles of the Guideline to the State's impaired driving issues and to determine which aspects of the Guideline deserve special focus. The result of that process should be a comprehensive strategic plan that forms the State's basis to address impaired driving issues.

To receive a grant in subsequent years, once a plan has been approved, a mid-range State is required to submit the certifications and assurances covering qualifying uses of funds, maintenance of effort requirements, and use of previously submitted plan (as applicable). This assurance about the previously submitted plan does not apply to a Statewide plan that has been revised. In that case, the State is required to submit the revised Statewide plan for review to determine compliance with the statute and implementing regulation.

4. High-Range States. (23 CFR 1300.23(f))

States that have an average impaired driving fatality rate that is 0.60 or higher are considered high-range States. High-range States are required to have conducted an assessment of the State's impaired driving program within the three years prior to the application due date.

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This IFR continues to define an assessment as a NHTSA-facilitated process.

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The first year allowance under the MAP-21 IFR for providing an assurance that the State will conduct an assessment of the State's impaired driving program and convene a statewide impaired driving task force to develop a statewide impaired driving plan no longer applies. Because the FAST Act continues the impaired driving countermeasures grant without substantive change, the agency interprets the first year of the grant as the first year that the impaired driving countermeasure grants were awarded,

i.e.,

fiscal year 2013. Accordingly, States no longer have the option to provide assurances that the State will conduct an assessment of the State's impaired driving program and convene a statewide impaired driving task force to develop a statewide impaired driving plan.

Based on this assessment, a high-range State is required to convene an impaired driving task force to develop a Statewide impaired driving plan (both the task force and plan requirements are described in the preceding section under mid-range States). In addition to meeting the requirements associated with developing a Statewide impaired driving plan, the plan also must include a separate section that expressly addresses the recommendations from the required assessment. The assessment review should be an obvious section of a high-range plan. A high-range State must address each of the recommendations in the assessment and explain how it intends to carry out each recommendation (or explain why it cannot carry out a recommendation).

The plan also must include a section that provides a detailed project list for spending grant funds on impaired driving activities, which must include high-visibility enforcement efforts as one of the projects (required by statute). The section also must include a description of how the spending supports the State's impaired driving program and achievement of its performance targets.

To receive a grant in subsequent years, the State's impaired driving task force must update the Statewide plan and submit the updated plan for NHTSA's review and comment. The statutory requirements also include

updating the assessment review and the spending plan and submitting those for approval.

5. Alcohol-Ignition Interlock Law Grants. (23 CFR 1300.23(g))

The FAST Act continues a separate grant program for States that adopt and enforce mandatory alcohol-ignition interlock laws covering all individuals convicted of a DUI offense, but adds flexibility for States to qualify for a grant. The FAST Act amends the program to include exceptions that allow an individual to drive a vehicle in certain situations without an interlock. Specifically, a State's law may include exceptions from mandatory interlock use in the following three situations: (1) An individual is required to drive an employer's motor vehicle in the course and scope of employment, provided the business entity that owns the vehicle is not owned or controlled by the individual (“employment exception”); (2) an individual is certified in writing by a physician as being unable to provide a deep lung breath sample for analysis by an ignition interlock device (“medical exception”); or (3) a State-certified ignition interlock provider is not available within 100 miles of the individual's residence (“locality exception”). In response to the statutory change, the agency has included these exceptions in the IFR.

In this IFR, the agency increases the minimum period that a State law must authorize an offender to use an ignition interlock from 30 days to six months. Under the MAP-21 IFR, the agency required only 30 days as the minimum period because no exceptions were permitted from the mandatory requirement to use an interlock. With the addition of the exceptions under the FAST Act, States are afforded significantly more flexibility in their interlock programs, and the justification for allowing a shorter period of interlock use no longer exists. This is also consistent with comments the agency received under the MAP-21 IFR, urging the agency to adopt a longer restriction. These comments asserted that several States require interlock use for offenders for six months or more, and that the agency should adopt a period consistent with these existing State laws. The laws identified by the commenters were examples that contained exceptions, and would not have qualified under the MAP-21 IFR for that reason. We recognize that several States amended their laws, removing exceptions in order to comply with the grant requirements under the MAP-21 IFR. In all cases, these amended laws required interlock use for at least six months, despite the 30-day requirement in the MAP-21 IFR. With the addition of permissible exceptions under the FAST Act, we do not believe that the six-month duration requirement is an onerous one.

Under the MAP-21 IFR, the agency received several other comments regarding these grants, including a criticism of the program under the assumption that taxpayers typically pay for interlock programs. In fact, States often defray their own program costs by making the offender, and not taxpayers, responsible for the costs associated with the installation and maintenance of an interlock. We believe that interlock programs should be part of every State's strategy for eliminating impaired driving. Strong evidence exists supporting the effectiveness of interlock programs for reducing drunk driving recidivism while the technology is installed on an individual's vehicle.

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Raub, R.A., Lucke, R.E., & Wark, R.I.,

Breath Alcohol Ignition Interlock Devices: Controlling the Recidivist.

Traffic Injury Prevention 4, p. 199-205 (2013).

Among several comments that were supportive of the grant program, one commenter requested that the agency add criteria to the interlock requirements beyond those stated in the statute. Since the statute directs the basis for qualification, we decline to include other requirements. We agree, however, with the comment that States should consider agency-supported studies and materials that identify and explain best practices for improving ignition interlock programs.

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Mayer, R.,

Ignition Interlocks-What You Need to Know: A Toolkit for Program Administrators, Policymakers, and Stakeholders, 2nd Ed.,

DOT-HS-811-883 (Washington, DC: National Highway Traffic Safety Administration, 2014). A

vailable at http://www.nhtsa.gov/staticfiles/nti/pdf/IgnitionInterlocks_811883.pdf; Model Guideline for State Ignition Interlock Programs,

DOT-HS-811-859 (Washington, DC: National Highway Traffic Safety Administration, 2013). Available at

http://www.nhtsa.gov/staticfiles/nti/pdf/811859.pdf.

In order to qualify, a State must submit legal citations to its mandatory ignition interlock laws each year with its application. In accordance with the statute, not more than 12 percent of the total amount available for impaired driving countermeasures grants may be used to fund these grants. The agency plans to continue to calculate the award amounts for this program in the same manner as it did under the MAP-21 IFR. This IFR makes no change to this provision.

At present, few States qualify for these grants. To avoid the circumstance where a relatively few States might receive large grant amounts, the agency may choose to reduce the percent of total funding made available for these grants, consistent with the flexibility afforded by the statute, which specifies that “not more than 12 percent” may be made available for these grants.

6. 24-7 Sobriety Program Grants. (23 CFR 1300.23(h))

The FAST Act includes a separate grant program for States that meet requirements associated with having a 24-7 sobriety program. NHTSA recognizes the value of impaired driving interventions such as 24-7 sobriety programs. The agency acknowledges that the effectiveness of such programs is likely associated with their alignment with traditional principles of deterrence:

swift and certain.

24-7 sobriety programs typically approach this deterrence model by focusing on the most high-risk offenders, requiring abstinence from alcohol or illegal drugs, testing compliance multiple times per day, and swiftly delivering defined consequences for noncompliance.

Under this provision, grants are provided to States that meet two separate requirements, and this IFR implements these requirements. The first requirement mandates that a State enact and enforce a law that requires all individuals convicted of driving under the influence of alcohol or of driving while intoxicated to receive a restriction on driving privileges. Under this first requirement, the license restriction must apply for at least a 30-day period. The IFR adds a definition of the term “restriction on driving privileges” to clarify the type of restrictions that comply and to make clear that States have broad flexibility in meeting the requirement. The definition covers any type of State-imposed limitation and provides examples of the most common restrictions, including license revocations or suspensions, location restrictions, alcohol-ignition interlock device requirements or alcohol use prohibitions.

The second requirement mandates that a State provide a 24-7 sobriety program. Under the statute, a 24-7 sobriety program means a State law or program that authorizes a State court or an agency with jurisdiction to require an individual who has committed a DUI offense to abstain totally from alcohol or drugs for a period of time and be subject to testing for alcohol or drugs at least twice per day at a testing location, by continuous transdermal monitoring device, or by an alternative method approved by NHTSA. In order to comply, the State must be able to point to a law or program that meets this requirement. Also, the law or program must have Statewide applicability. Although the law or program need not

require that every DUI offender be subject to a 24-7 sobriety program, it must be authorized to apply on a Statewide basis. Consequently, a pilot program that may be in use in a small portion of a State or a program that is based solely at a local government level (

e.g.,

county-based) would not be eligible for these funds. However, States that qualify for a general impaired driving countermeasures grant may use those funds to support 24-7 sobriety pilot programs or county programs.

In line with the statutory definition, a compliant law or program must use certain types of testing to regularly monitor DUI offenders under the 24-7 sobriety program. Under the MAP-21 IFR, the agency received comments suggesting additional testing methods and minimum performance requirements for testing devices. However, we do not believe that approach is necessary. The statute defines a testing process that States must apply to offenders in a 24-7 program. Specifically, in accordance with the definition, an offender must be subject to testing for alcohol or drugs at least twice per day at a testing location, or by continuous monitoring via electronic monitoring device, or by an alternative method approved by NHTSA. If the State uses these types of identified test methods, it will be eligible to receive a grant. Although the agency does not identify additional testing methods or set specific performance requirements in this IFR, it reserves the right to do so, consistent with the statutory allowance for alternative methods to be approved. Any additional testing method that might be approved must allow the program to meet the general deterrence model discussed above, ensuring a swift and certain response from the State for program violators. For example, a method used for alcohol testing should be conducted at least twice per day and a method used for drug testing should be conducted on at least a scheduled basis. In addition, the periods for testing must be clear in the law or program cited, so that a State has the ability to take swift action. For these requirements, covering the types and periods of testing that should be used in 24-7 sobriety programs, we are particularly interested in public comments.

Under the MAP-21 IFR, the agency received several comments regarding the inclusion of 24-7 sobriety programs as a qualifying use of grant funds. The prior IFR simply added the statutory definition without intended change.

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States that met this definition were allowed to use grant funds for a 24-7 sobriety program. One commenter indicated that the statute contained a drafting mistake and that participating offenders under a 24-7 sobriety program were required to be tested for both drugs

and

alcohol to meet the definition, instead of for drugs

or

alcohol as stated in MAP-21 (and included without change in the FAST Act). A separate commenter disagreed with this position. In reviewing this issue, we find no evidence to suggest that Congress intended something different in the statutory definition provided. Since the purpose of the section covers grants to States for programs designed to reduce driving under the influence of alcohol, drugs, or a the combination of alcohol and drugs, we believe that the definition for testing under 24-7 sobriety programs also applies to any one of these circumstances. Consistent with the statutory language, States have the flexibility to test offenders for alcohol, drugs or a combination of both to meet program requirements.

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Several commenters noted the typographical error in the IFR. We have corrected the definition here.

In order to qualify, a State must submit the required legal citations or program information by the application deadline. A State wishing to receive a grant is required to submit legal citations to its law authorizing a restriction on driving privileges for all DUI offenders for at least 30 days. The State must also submit legal citations to its law or a copy of its program information that authorizes a Statewide 24-7 sobriety program.

In accordance with the statute, not more than 3 percent of the total amount available under this section may be used to fund these grants. The agency plans to calculate award amounts in the same manner as for Alcohol-Ignition Interlock Law Grants. Amounts not used for these grants will be used for grants to low-, mid- and high-range States. The agency believes it is possible that few States will initially qualify for a grant. Therefore, as with Alcohol-Ignition Interlock Law Grants, the agency may choose to reduce the percent of total funding made available for these grants, consistent with the flexibility afforded by the statute, which specifies that “not more than 3 percent” may be made available for these grants.

7. Use of Grant Funds. (23 CFR 1300.23(i))

States may use grant funds for any of the uses identified in the FAST Act. In this IFR, the agency includes definitions for some of the uses. In all cases, the definitions are consistent with those provided for in the FAST Act or were developed under the MAP-21 IFR. The agency received comments related to a State's ability to fund certain projects using grant funds provided for impaired driving countermeasures. These comments related to the use of funds for specific impaired driving programs, arguing for specific approaches over others and for more funds to be spent on drug impaired driving programs. In general, we agree that States should use several different types of programs as part of a comprehensive approach to addressing impaired driving. However, the programs for which grant funds may be used are limited to those identified by Congress in the statute. We choose not to prioritize one type of authorized program over another, and qualifying States may use the funds on any of the identified programs. Unless the program is specifically identified to alcohol enforcement, grant funds may be used for programs identified in statute that address the problem of drug-impaired driving. We encourage States to have programs that focus on this growing problem.

In addition to listing all the qualifying uses, the agency has reorganized this section under today's IFR to list special rules that cover any other statutory requirements conditioning how grant funds are spent. For low-range States, grant funds may be used for any of the projects identified in the statute and for those designed to reduce impaired driving based on problem identification. In addition, low-range States may use up to 50 percent of grant funds for any eligible project or activity under Section 402.

For mid-range States, grant funds may be used for any of the projects identified in the statute and for projects designed to reduce impaired driving based on problem identification, provided the State has received advance approval from NHTSA for such projects based on problem identification. The agency received one comment questioning the approval requirement under the MAP-21 IFR. However, that requirement is a statutory one. Although the requirement did not appear in SAFETEA-LU, it was added by Congress in MAP-21 and continued under the FAST Act. We agree with the commenter that programs based on problem identification included in the application of a mid-range State that receives approval do not need further review. However, if the State creates a separate spending plan in its HSP based on its Statewide impaired driving plan and later revises that plan,

it will be required to receive approval for that revision, consistent with the statutory requirement.

High-range States may use grant funds for the projects identified above only after submission of a Statewide impaired driving plan, and review and approval of the plan by NHTSA. States receiving Alcohol-Ignition Interlock Law Grants or 24-7 Sobriety Program Grants may use those grant funds for any of the projects identified and for any eligible project or activity under Section 402.

F. Distracted Driving Grants. (23 CFR 1300.24)

MAP-21 created a new program authorizing incentive grants to States that enact and enforce laws prohibiting distracted driving. Few States qualified for a Distracted Driving Grant under the statutory requirements of MAP-21. The FAST Act amended the qualification criteria for a Distracted Driving Grant, revising the requirements for a Comprehensive Distracted Driving Grant and providing for Special Distracted Driving Grants for States that do not qualify for a Comprehensive Distracted Driving Grant.

1. Qualification Criteria for a Comprehensive Distracted Driving Grant. (23 CFR 1300.24(c))

The basis for a Comprehensive Distracted Driving Grant is a requirement that the State tests for distracted driving issues on the driver's license examination and that the State have a statute that complies with the criteria set forth in 23 U.S.C. 405(e), as amended by the FAST Act. Specifically, the Sta te must have a conforming law that prohibits texting while driving and youth cell phone use while driving.

i. Testing Distracted Driving Issues. (23 CFR 1300.24(c)(1))

To qualify for a grant under MAP-21, the State statute had to require distracted driving issues to be tested as part of the State driver's license examination. Few States met this requirement. In response to the MAP-21 IFR, one commenter disagreed with this requirement and believed that the State should be able to certify that State driver licensing examinations tested for distracted driving questions. The agency need not address this comment because it is no longer applicable. The FAST Act amended this requirement to allow a State to qualify for a grant if it does, in fact, test for distracted driving issues on the driver's license examination, without the need for a statutory mandate. To demonstrate that it tests for distracted driving issues under today's IFR, the State must submit sample distracted driving questions from its driver's license examination as part of its application.

ii. Definition of Driving. (23 CFR 1300.24(b)

The FAST Act amended the definition of “driving” to strike the words “including operation while temporarily stationary because of traffic, a traffic light or stop sign, or otherwise”. As amended, “driving” means “operating a motor vehicle on a public road; and does not include operating a motor vehicle when the vehicle has pulled over to the side of, or off, an active roadway and has stopped in a location where it can safely remain stationary.” The IFR adopts this definition without change.

iii. Texting Prohibition. (23 CFR 1300.24(c)(2)(i))

The FAST Act retained much of the MAP-21 requirements related to the texting prohibition, including the types of behaviors prohibited, primary enforcement, and a minimum fine. Those provisions are retained in this section. The FAST Act removed the requirement for increased fines for repeat violations and added the requirement that the State statute may not include an exemption that specifically allows a driver to text through a personal wireless communications device while stopped in traffic. Those FAST Act amendments are adopted in this section without change.

iv. Youth Cell Phone Use Prohibition. (23 CFR 1300.24(c)(2)(ii))

The FAST Act retained much of the MAP-21 requirements related to the prohibition on young drivers using a personal wireless communications device while driving, including the types of behaviors prohibited, and the requirements for primary enforcement and a minimum fine. Those provisions are retained in this section.

MAP-21 required the State statute to prohibit a driver who is younger than 18 years of age from using a personal wireless communications device while driving. The FAST Act amended this provision to allow a State to qualify for a grant if the State statute prohibited a driver under 18 years of age or a driver with a learner's permit or intermediate license from using a personal wireless communications device while driving. As with the texting prohibition, the FAST Act removed the requirement for increased fines for repeat violations and added the requirement that the State statute not include an exemption that specifically allows a driver to text through a personal wireless communications device while stopped in traffic. Those FAST Act amendments are adopted in this section without change.

2. Use of Comprehensive Distracted Driving Grant Funds. (23 CFR 1300.24(d))

MAP-21 provided that each State that receives a Section 405(e) grant must use at least 50 percent of the grant funds for specific distracted driving related activities and up to 50 percent for any eligible project or activity under Section 402. In addition to listing all the qualifying uses, the agency has reorganized this section under today's IFR to list special rules that cover any other statutory requirement conditioning how grant funds are spent.

The FAST Act allows a State to use up to 75 percent of Section 405(e) funds for any eligible project or activity under Section 402 if the State has conformed its distracted driving data to the most recent Model Minimum Uniform Crash Criteria (MMUCC), a voluntary guideline designed to help States determine what crash data to collect on their police accident reports (PARs) and what data to code and carry in their crash databases. In “Mapping to MMUCC: A process for comparing police crash reports and state crash databases to the Model Minimum Uniform Crash Criteria” (DOT HS 812 184), NHTSA and the Governors Highway Safety Association developed a methodology for mapping the data collected on PARs and the data entered and maintained on crash databases to the data elements and attributes in the MMUCC Guideline. This methodology will be the basis for determining whether a State has conformed its distracted driving data to the most recent MMUCC. Because NHTSA may update this publication in future years, and intends the most recent version to be used, this IFR adds the language “as updated.” If a State qualifies for a Comprehensive Distracted Driving Grant, the State must demonstrate that its distracted driving data collection conforms with MMUCC,

i.e.,

is 100 percent mappable. NHTSA intends to develop an excel spreadsheet that States may use to demonstrate that their distracted driving data collection conforms with MMUCC. States must submit the executed spreadsheet showing 100 percent mappable distracted driving data collection within 30 days after award notification.

3. Special Distracted Driving Grants. (23 CFR 1300.24(e)(3))

The FAST Act authorized additional distracted driving grants for those States that do not qualify for a Comprehensive Distracted Driving Grant for fiscal years 2017 and 2018. In this IFR, the agency refers to these additional distracted driving grants as “Special Distracted Driving Grants.” For fiscal year 2017, a State qualifies for a Special Distracted Driving Grant if it has a “basic text messaging statute” that is enforced on a primary or secondary basis and the State does not qualify for a Comprehensive Distracted Driving Grant. The statute uses the term, “basic text messaging statute,” but does not define it. The agency believes the intent was to distinguish “basic text messaging” from “texting” as defined by MAP-21 (and unchanged by the FAST Act). For this reason, the agency is defining “basic text messaging statute” as a statute that prohibits a driver from manually inputting or reading from an electronic device while driving for the purpose of written communication.

The requirements for a Special Distracted Driving Grant become stricter in fiscal year 2018. In addition to the requirement for a basic text messaging statute, the State must also enforce the law on a primary basis, impose a fine for a violation of the law, and prohibit drivers under the age of 18 from using a personal wireless communications device while driving. As is the case for fiscal year 2017, the State must also not qualify for a Comprehensive Distracted Driving Grant. The IFR adopts these statutory provisions without change.

The FAST Act specifies allowable uses for grant funds—activities related to the enforcement of distracted driving laws, including public information and awareness. In addition, States may use up to 15 percent of the grant funds in fiscal year 2017 and 25 percent in fiscal year 2018 for any eligible project or activity under Section 402. This IFR makes no change to the allowable use of funds under this grant program.

G. Motorcyclist Safety Grants. (23 CFR 1300.25)

In 2005, Congress enacted the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public Law 109-59, which authorized the Motorcyclist Safety Grants under section 2010. MAP-21 adopted the SAFETEA-LU Motorcyclist Safety Grants largely unchanged. (23 U.S.C. 405(f)) The Fast Act amended the Motorcyclist Safety grants to address the allocation of funds, provide flexibility in the use of funds, and add a requirement that the Secretary update and provide to the States model Share The Road language. The FAST Act did not amend the qualifications for the Motorcyclist Safety grants, which remain the same as under MAP-21. States qualify for a grant by meeting two of the following six grant criteria: Motorcycle Rider Training Courses; Motorcyclists Awareness Program; Reduction of Fatalities and Crashes Involving Motorcycles; Impaired Driving Program; Reduction of Fatalities and Accidents Involving Impaired Motorcyclists; and Use of Fees Collected from Motorcyclists for Motorcycle Programs. (23 U.S.C. 405(f)(3)). To streamline the application process for section 405 grants, this IFR amends the six grant criteria to require that materials demonstrating compliance for each criterion be submitted with the State's HSP.

1. General Revision to the Six Motorcyclist Safety Grant Criteria

Prior to today's IFR, the Motorcyclist Safety Grant regulation first identified the elements to satisfy a specific criterion and then the elements to demonstrate compliance. In general, States provided application information and data as attachments to their HSP. This approach required States to submit a significant number of documents and data, and often required the States and the agency to engage in additional efforts to clarify whether a State demonstrated compliance. Today's IFR streamlines the regulatory text for each of the six Motorcyclist Safety Grant criteria and reduces State application burdens for a Motorcyclist Safety Grant. This IFR eliminates the requirement for separate submissions to satisfy each criterion, as long as the relevant required information is included in the HSP. This approach is intended to shift the focus to ensure that each State bases its motorcycle safety programs on data-driven problem identification and countermeasures to meet the criteria for a Motorcycle Safety Grant.

2. Motorcycle Rider Training Course. (23 CFR 1300.25(e))

To qualify for a grant under this criterion, section 405(f)(3)(A) requires a State to have “an effective motorcycle rider training course that is offered throughout the State, provides a formal program of instruction in accident avoidance and other safety-oriented operational skills to motorcyclists and that may include innovative training opportunities to meet unique regional needs.” Based upon many years of experience in administering the Motorcycle Safety Grants, the agency is reevaluating the requirements to demonstrate compliance with this criterion. At this time, every State has adopted an established motorcycle rider training program that is a result of a systematic and standardized approach to teach crash avoidance and the safe operation of motorcycles. Therefore, States will no longer be required to submit multiple documents to justify and support the selected training curriculum. Instead, States must use one of the following four identified training programs: The Motorcycle Safety Foundation (MSF) Basic Rider Course, TEAM OREGON Basic Rider Training (TEAM OREGON), Idaho STAR Basic I (Idaho STAR), or the California Motorcyclist Safety Program Motorcyclist Training Course (California). These curricula are well-established, formal instruction programs in common use across the United States. Each of them has been formalized and standardized through scientific research and field testing. And, each offers instruction in crash avoidance, motorcycle operation and other safety-oriented skills that require in-class instruction and on-the-motorcycle training, provide certified trainers, and have institutionalized quality control measures. With the requirement to use one of these well-established training courses, the need for documentation establishing the merits of the training course no longer exists.

In lieu of the previously required documentation submission, today's IFR instead requires a certification from the Governor's Representative for Highway Safety identifying the head of the designated State authority having jurisdiction over motorcyclist safety issues and that head of the designated State authority having jurisdiction over motorcyclist safety issues has approved and the State has adopted and uses one of these four established and standardized introductory motorcycle rider curricula. Alternatively, in order to allow development of training that meets unique regional needs, the IFR permits the Governor's Representative for Highway Safety to certify that head of the designated State authority has approved and the State has adopted and uses a curriculum that meets NHTSA's Model National Standards for Entry-Level Motorcycle Rider Training. Such curriculum must have been approved by NHTSA as meeting NHTSA's Model National Standards for Entry-Level Motorcycle Rider Training before the application.

The statute requires the State motorcycle rider training program to be Statewide. (23 U.S.C. 405(f)(e)) To meet

this requirement, today's IFR requires the State to provide a list of the counties or political subdivisions in the State where motorcycle rider training courses will be conducted in the 12 months of the fiscal year of the grant and the corresponding number of registered motorcycles in each county or political subdivision, according to official State motor vehicle records, provided that the State offers at least one motorcycle rider training course in counties or political subdivisions that collectively account for a majority of the State's registered motorcycles.

Finally, to meet this criterion, the State must submit the official State document identifying the designated State authority having jurisdiction over motorcyclist safety issues, as was required under the MAP-21 IFR.

3. Motorcycle Awareness Program, (23 CFR 1300.25(e))

To qualify under this criterion, a State must have “an effective statewide program to enhance motorist awareness of the presence of motorcyclists on or near roadways and safe driving practices that avoid injuries to motorcyclists.” (23 U.S.C. 405(f)(3)(B)) The statute defines Motorcycle Awareness Program as “an informational or public awareness program designed to enhance motorcyclist awareness that is developed by or in coordination with the designated State authority having jurisdiction over motorcyclist safety issues, which may include the State motorcycle safety administrator or a motorcycle advisory council appointed by the governor of the State.” (23. U.S.C. 405(f)(5)(B)) Motorcycle Awareness is also defined by the statute to mean “individual or collective awareness of (i) the presence of motorcycles on or near roadways; and (ii) safe driving practices that avoid injury to motorcyclists.” (23 U.S.C. 405(f)(5)(C)) The FAST Act did not amend the statutory criterion or these definitions.

The agency is streamlining the submission requirements under this criterion. Today's IFR continues to require the State's Motorcycle Awareness Program to be developed by, or in coordination with, the designated State authority having jurisdiction over motorcyclist safety issues. It requires a certification from the Governor's Representative for Highway Safety identifying the head of the designated State authority having jurisdiction over motorcyclist safety issues and that the State's motorcyclist awareness program was developed by or in coordination with the designated State authority having jurisdiction over motorcyclist safety issues. The IFR no longer requires submission of the detailed strategic communications plan. One commenter under the MAP-21 IFR stated that the requirement for a strategic communications plan did not reflect the practical realities of the program (especially considering the small amount of grant funds), and should be scaled back. The agency agrees, and we have substituted a different approach.

Based upon experience, the agency believes that State motorcycle awareness programs have not used available State crash data to its fullest extent to target specific motorcycle problem areas. Rather, the awareness programs have been based upon generalized use of crash data that has resulted in messages and slogans that bear little relation to the causes of motorcycle crashes. Therefore, to demonstrate that a State is implementing a data-driven State awareness program that targets problem areas, this IFR requires the State to submit in its HSP a performance measure and performance targets with a list of countermeasure strategies and projects that will be deployed to meet these targets. True data-driven problem identification and prioritization will take into account crash location and causation in the development of specific countermeasures.

In the problem identification process, the State must use crash data queries to determine, at a minimum, the jurisdictions with the highest to lowest number of multi-vehicle crashes involving motorcycles. The State must select countermeasure strategies and projects implementing the motorist awareness activities based on the geographic location of crashes. For example, if a State plans to procure a digital media buy aimed at educating motorists about speed variability and blind spots, it should specify in which counties the digital media buy will take place to effectuate the statutory requirement that the motorcycle awareness program be Statewide. Creating awareness messages infrequently during the year or in only a few geographic locations will not be sufficient to meet the requirement for a Statewide awareness program. Today's IFR provides the State flexibility to address specific motorcycle awareness issues while focusing the State's resources to target motorist behaviors or geographic area based upon problem identification.

4. Impaired Driving Program. (23 CFR 1300.25(h))

Previously, a State had to submit separate data and specific countermeasures to reduce impaired motorcycle operation. This requirement was separate from the performance measures, targets and countermeasure strategies required in the HSP under § 1300.11. Today's IFR directs States to use the HSP process of problem identification, performance measures and targets, and countermeasure strategies to apply under this criterion. A State must provide performance measures and corresponding performance targets developed to reduce impaired motorcycle operation in its HSP in accordance with § 1300.11(c). In addition, the State must list the countermeasure strategies and projects the State plans to implement to achieve its performance targets in the HSP.

5. Criteria With No Substantive Amendments

i. Reduction of Fatalities and Crashes Involving Motorcycles. (23 CFR 1300.25(g); Reduction in Fatalities and Accidents Involving Impaired Motorcyclists. (23 CFR 1300.25(i))

Today's action makes no structural amendments to two criteria—reduction of fatalities and crashes involving motorcycles and reduction in fatalities and accidents involving impaired motorcyclists. However, to provide additional flexibility, the IFR amends the age of the data that States must use. Specifically, the IFR allows States to use FARS data from up to three calendar years before the application date. The agency will make this information available to the States in January each year.

ii. Use of Fees Collected From Motorcyclists for Motorcycle Programs. (23 CFR 1300.25(j))

Today's action does not make any changes to this criterion. However, the agency is explaining its requirements in further detail to better assist States in demonstrating compliance and to address some continuing confusion.

To be eligible for a Motorcyclist Safety Grant under this criterion, the Federal statute requires that “[a]ll fees collected by the State from motorcyclists for the purposes of funding motorcycle training and safety programs will be used for motorcycle training and safety purposes.” (23 U.S.C. 405(f)(3)(F)) This requires a State to take two actions with respect to fees for motorcyclist training: (1) Collect and deposit all the fees from motorcyclists; and (2) distribute all fees collected, without diversion, for training and safety programs. Whether a State applies as a “Law State” or a “Data State” under this criterion, NHTSA requires

sufficient documentation to show that the State's process does not permit any diversion.

In response to the MAP-21 IFR, one commenter raised concerns that some States might seek to transfer the fees collected for motorcycle training to other uses, thereby jeopardizing the State's ability to qualify under the Use of Fees criterion. The agency shares these concerns, and they form the basis for the requirements described below.

To confirm that a Law State has not diverted motorcyclist fees to another program, the agency requires the State to provide the citation to the law or laws collecting all fees requiring that the fees be used for motorcyclist training or safety

and

to the law appropriating the fees from the State treasury to fund the authorized program. This is so because it is possible for a State to have a law specifying that motorcycle fees are to be set aside only for training, yet divert some of these funds by subsequent appropriation. In fact, the agency has encountered this circumstance in an application under this criterion.

Under the typical legislative process, a legislature enacts two laws: One that authorizes a particular governmental action (an authorizing statute) and another that draws money from the State treasury to fund the action (an appropriation). In the typical case, appropriations are enacted annually in the State's budget process. Because an authorizing act and an appropriation are generally not enacted simultaneously, and often originate in separate legislative committees, there is the potential during the budget cycle for a diversion of motorcyclist fees to other purposes than motorcycle training or safety, even though language in the originating account may specify otherwise. For this reason, the agency requires citations to both the authorizing statute and the appropriation.

In response to the MAP-21 IFR, one commenter suggested that the agency be flexible and permit a State to demonstrate compliance without the need to submit its appropriation law as there are other laws that transfer funds without an appropriation. The commenter cites to one State's law as an example of a law that transfers motorcycle fees collected without an appropriation. That State's law provides that motorcycle fees are “appropriated on a continual basis” to the State Department of Transportation which shall administer the account. This is an example of a continuing appropriation, and citation to this provision would meet the requirement for a State to provide the citation to its appropriation law.

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The agency requires the citation information described here to verify eligibility under this criterion, and declines to adopt the commenter's recommendation.

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The agency recognizes that certain statutes can act as both an authorization establishing the account into which the fees are deposited and a continuous appropriation (or “revolving fund”) to pay out those fees for training, without the need for further appropriation. In such cases, the requirement to provide citations for both the statute authorizing the collection of fees and the appropriation would be met by providing a single citation to the continuous appropriation.

To confirm that a Data State has not diverted motorcyclist fees to another program, the State must submit detailed data and/or documentation that show that motorcyclist fees are collected and used only on motorcyclist training and safety. This requires a detailed showing from official records that revenues collected for the purposes of funding motorcycle training and safety programs were placed into a distinct account and expended only for motorcycle training and safety programs. The detailed documentation must include the account string, starting with the collection of the motorcycle fees into a specific location or account and following it to the expenditure of the funds, over a time period including the previous fiscal year. The documentation must provide NHTSA with the ability to “follow the money” to ensure that no diversion of funds takes place.

6. Award Limitation (23 CFR 1300.25(k))

The FAST Act amended the formula for allocation of grant funds under 23 U.S.C. 405(f), specifying that the allocation is to be in proportion to the State's apportionment under Section 402 for fiscal year 2009, instead of fiscal year 2003, bringing this grant into conformance with other Section 405 grants. In addition, the FAST Act amended the total amount a State may receive under 23 U.S.C. 405(f). Unlike the regulatory 10 percent cap identified for the other Section 405 grants in § 1300.20(e), the statute provides that a State may not receive more than 25% of its Section 402 apportionment for fiscal year 2009.

7. Use of Grant Funds (23 CFR 1300.25(l))

The FAST Act amended the eligible use of funds under this section. In addition to listing all the qualifying uses, the agency has reorganized this section under the IFR to list special rules that cover any other statutory requirement conditioning how grant funds are spent. Specifically, a State may use up to 50 percent of its grant funds under this section for any eligible project or activity under Section 402 if the State is in the lowest 25 percent of all States for motorcyclist deaths per 10,000 motorcycle registrations, based on the most recent data that conforms to criteria established by the Secretary (by delegation, NHTSA).

To determine if a State is eligible for this use of funds under Section 402, NHTSA will continue to use final FARS and FHWA registration data, as under MAP-21. Final FARS data provide the most comprehensive and quality-controlled fatality data for all 50 States, the District of Columbia, and Puerto Rico. FHWA motorcycle registration data are compiled in a single source for all 50 States, the District of Columbia, and Puerto Rico. The agency will make calculations and notify the States in January each year prior to the application due date of July 1.

8. Share the Road Model Language

The FAST Act mandates that within 1 year after its enactment, NHTSA update and provide to the States model language for use in traffic safety education courses, driver's manuals, and other driver training materials that provide instruction for drivers of motor vehicles on the importance of sharing the road safely with motorcyclists. NHTSA intends to update Share the Road language and make it available on its Web site located at

http://www.trafficsafetymarketing.gov.

In addition, the FAST Act requires a State to include the share the road language in its public awareness, public service announcements, and other outreach programs to enhance driver awareness of motorcyclists. (23 U.S.C. 405(f)(4)(A)(iv)) Today's IFR reflects this change.

9. Response to MAP-21 IFR Comments

In response to the MAP-21 IFR, the agency received two comments that are not addressed above. One commenter recommended that a universal motorcycle helmet law be included as a requirement to qualify for a Motorcyclist Safety Grant. Because the Federal statute does not include such a requirement to qualify for the grant, we decline to adopt this recommendation. Another commenter recommended that the agency allow States to cite to internet links to meet some requirements. We decline to adopt the use of internet links, as they are subject to change and therefore provide inadequate documentation and an insufficient audit trail.

H. State Graduated Driver Licensing Grant (23 CFR 1300.26)

In general, a graduated driver's licensing (GDL) system consists of a multi-staged process for issuing driver's licenses to young, novice drivers to ensure that they gain valuable driving experience under controlled circumstances and demonstrate responsible driving behavior and proficiency to move through each level of the system before graduating to the next. All 50 States and the District of Columbia have enacted GDL laws as a means of providing a safe transition for novice drivers to the driving task. MAP-21 reintroduced an incentive grant for States to adopt and implement GDL laws (codified at 23 U.S.C. 405(g)). MAP-21 established a series of criteria that were prescriptive and difficult for States to meet. No State GDL incentive grants were awarded under MAP-21 due to the statute's strict compliance requirements.

The FAST Act resets the State GDL incentive grant program by significantly amending the statutory compliance criteria. It makes technical corrections, allows States additional flexibility to comply, reduces some driving restrictions, and better aligns the compliance criteria with commonly accepted best practices for GDL programs. The statutory requirements remain challenging, and it is possible that few States may comply in the first year of the revised program. However, the agency believes that because the new compliance criteria better reflect commonly accepted best practices and are more feasible for States to meet, some States will take action to amend their laws in order to qualify for a grant.

NHTSA based some of its implementation decisions in the MAP-21 IFR on research evidence, commonly accepted best practices, and public comments received under that program. Two commenters raised concerns about the agency's reliance on research evidence to establish certain qualification criteria. However, the FAST Act codified into law many of the NHTSA-established qualification criteria, including those cited by one of the commenters (minimum number of supervised behind-the-wheel training hours and nighttime driving restriction hours). As a result, NHTSA may no longer deviate from these criteria, and many of these requirements are therefore retained in this IFR.

The following sections explain the requirements of the State GDL incentive grant program under the FAST Act. In addition, the agency addresses public comments received on the MAP-21 IFR and, where appropriate, public comments received on a Notice of Proposed Rulemaking (NPRM) that NHTSA published on October 5, 2012, in the

Federal Register

seeking public comment on the statutory GDL requirements in MAP-21 (

see

77 FR 60956).

1. Minimum Qualification Criteria

To qualify for a State GDL incentive grant, a State must submit an application with legal citations to the State statute(s) demonstrating compliance with the minimum qualification criteria specified in this IFR. (§ 1300.26(c)) Under 23 U.S.C. 405(g), as amended by the FAST Act, a State qualifies for an incentive grant if its driver's license law requires novice drivers younger than 18 years of age to comply with a “learner's permit stage” and an “intermediate stage” prior to receiving an unrestricted driver's license. (§ 1300.26(a)) Previously, under MAP-21, all novice drivers younger than 21 years of age were required to comply with such a 2-stage licensing process prior to receiving an unrestricted driver's license. This IFR reflects the statutory change from 21 years of age to 18 years of age. (§§ 1300.26(a), (d)(1)(i))

This change has significant impacts on NHTSA's interpretation of the minimum qualification criteria and their application to State laws. A number of commenters to the MAP-21 IFR and the NPRM requested clarification on the application of the GDL requirements to novice drivers age 18 and older. The agency need not address these comments because the FAST Act amendment lowered the evaluation age to 18, and therefore the requirements of the FAST Act do not extend to the State's treatment of novice drivers once they have reached that age. For example, under this IFR, the automatic issuance of an unrestricted driver's license upon turning 18 years of age (regardless of the length of time an intermediate license was held) will no longer prevent a State from qualifying for an incentive grant because the minimum qualification criteria must apply only up to, but not including, 18 years of age.

This IFR uses the commonly accepted term “unrestricted driver's license,” as used in the FAST Act instead of “full driver's license,” which was used in the MAP-21 IFR. (§ 1300.26(b)) In the MAP-21 IFR, NHTSA used the term “full driver's license” to avoid confusion with driver licenses containing such restrictions as a requirement to wear corrective lenses. However, the FAST Act continues to use “unrestricted driver's license,” and NHTSA believes that phrase is well-understood. This IFR defines “unrestricted driver's license” to mean “full, non-provisional driver's licensure to operate a motor vehicle on public roadways.” An “unrestricted driver's license” for purposes of this section may include narrow restrictions such as requiring use of corrective lenses or assistive devices. However, it does not include learner's permits, intermediate licenses, or other similar restricted licenses.

The following sections describe the minimum qualification criteria for the learner's permit stage and the intermediate stage that all novice drivers younger than 18 years of age must complete prior to receiving an unrestricted driver's license in order for the State to qualify for an incentive grant. The agency does not have statutory authority in 23 U.S.C. 405(g) to allow States to meet only a few of the minimum qualification criteria dictated by the FAST Act or to phase in the program over several years, as recommended by some commenters. In addition, because the FAST Act sets minimum qualification criteria, NHTSA cannot award grants while allowing States complete flexibility to set “their own restrictions based on their unique conditions and problems,” as one commenter suggested.

2. Learner's Permit Stage (23 CFR 1300.26(d))

The FAST Act requires all 2-stage licensing processes to begin with a learner's permit stage. This IFR requires a State driver's licensing statute to include a learner's permit stage that applies to any driver who is younger than 18 years of age prior to being issued by the State any other permit, license, or endorsement to operate a motor vehicle on public roadways. However, recognizing that some drivers younger than 18 years of age may change residence across State lines, a learner's permit stage is not required for any driver who has already received an intermediate license or unrestricted driver's license from any State, including a State that does not meet the minimum qualification criteria for an incentive grant. Drivers younger than 18 years of age who possess only a learner's permit from another State must be integrated into the State's learner's permit stage.

The FAST Act requires applicants to successfully pass a vision and knowledge assessment prior to receiving a learner's permit. A “knowledge assessment” (commonly called a “written test”) is generally written or

computerized, as opposed to a behind-the-wheel assessment. The assessment must cover issues related to the driving task (including, but not limited to, the rules of the road, signs, and signals), rather than solely vehicle maintenance.

Under the FAST Act and the IFR, the learner's permit stage must be at least six months in duration, and it must remain in effect until the driver reaches 16 years of age and enters the intermediate stage or reaches 18 years of age. These requirements are independent and must each be satisfied. For example, a learner's permit stage that automatically ends with the issuance of an intermediate license at age 17 would not comply with the minimum requirements because, in some cases, it may not be in effect for a period of at least 6 months. However, a learner's permit stage that automatically ends at age 18 would not be a bar to compliance because, as discussed above, a State's GDL program is not required to cover drivers who have reached that age. A driver who successfully completes the learner's permit stage and is younger than 18 must enter the intermediate stage; he or she may not be issued an unrestricted driver's license or any other permit, license, or endorsement.

The key feature of a learner's permit stage is the requirement that the learner's permit holder be accompanied and supervised at all times while operating a motor vehicle. The FAST Act and this IFR require that the supervising individual be a licensed driver who is at least 21 years of age or a State-certified driving instructor. The IFR defines “licensed driver” to mean “an individual who possess a valid unrestricted driver's license.” (§ 1300.26(b)). An individual who possesses only a learner's permit or intermediate license, or whose license is expired, suspended, revoked, or otherwise invalid for any reason, may not supervise a learner's permit holder. The FAST Act does not allow for any exceptions to the requirement that a learner's permit holder be accompanied and supervised “

at all times

while the driver is operating a motor vehicle.” (23 U.S.C. 405(g)(2)(B)(i)(IV) (emphasis added)) A State that allows a learner's permit holder to drive a motor vehicle without being properly accompanied or supervised for any reason, including in an emergency, would not qualify for an incentive grant.

With regard to driver's education (or a similar training course) and behind-the-wheel training, both of which were required under MAP-21, the FAST Act provides significantly more flexibility. Some commenters to the MAP-21 IFR noted that driver's education was difficult to implement in rural areas, that evidence on the effectiveness of driver's education courses is mixed, and that States facing budgetary challenges may face an insurmountable burden in certifying driver's education courses and requiring all learner's permit holders to attend them. Under the FAST Act, a learner's permit holder must

either

complete a State-certified driver's education or training course

14

or

receive at least 50 hours of behind-the-wheel training, with at least 10 of those hours at night, with a licensed driver. This IFR includes this requirement, but makes clear that the licensed driver for behind-the-wheel training must be at least 21 years of age or a State-certified driving instructor, in order for it to align with the general accompaniment and supervision requirement explained above. This IFR clarifies that the 10 hours of nighttime behind-the-wheel training are included in the 50 hours of total behind-the-wheel training, not an additional requirement. NHTSA declines to define “night” for purposes of this requirement or to dictate how a State may verify that the training has occurred. At this time, the agency believes those determinations are best left to the State.

14

NHTSA encourages States to consider establishing driver training curriculum standards based on the national standards recommended in the Driver Education Working Group. (National Highway Traffic Safety Administration (October 2009)

Novice Teen Driver Education and Training Administrative Standards.

)

To qualify, a State must also make it a primary offense for a learner's permit holder to use a personal wireless communications device while driving. The FAST Act made a few changes to this distracted driving provision of the GDL program (“GDL prohibition”) to bring it into closer alignment with the criteria to qualify for a Distracted Driving Grant (under 23 CFR § 1300.24). First, the GDL prohibition bans the use of any “personal wireless communications device,” which has a common definition in both programs. Second, the GDL prohibition uses the Distracted Driving Grant definition of “driving.” Finally, the same exceptions permitted under the Distracted Driving Grant are permitted under this GDL prohibition. To bring these further into alignment, NHTSA has incorporated into the GDL prohibition the requirement under the Distracted Driving Grant that the State's statute not include an exemption that specifically allows a driver to text through a personal wireless communication device while stopped in traffic. This provision goes to the heart of how the agency interprets “driving” as it applies to State laws, and will ensure consistency between the programs. As under the MAP-21 IFR and the Distracted Driving Grant, violation of the GDL prohibition must be a primary offense. However, NHTSA is not incorporating the minimum fine requirement of the Distracted Driving Grant into the GDL prohibition. It is not expressly required under the FAST Act to qualify for a State GDL incentive grant, and the automatic extension requirement (discussed next) already provides for an appropriate penalty under a GDL program.

Finally, under this IFR, the learner's permit stage must require that, in addition to any other penalties imposed by State statute, its duration be extended if the learner's permit holder is convicted of a driving-related offense or misrepresentation of a driver's true age during at least the first six months of that stage. Under the FAST Act, NHTSA has discretion to define any “driving-related offense” for which this penalty must apply. (23 U.S.C. 405(g)(2)(B)(iii)) NHTSA has defined “driving-related offense” broadly to include “any offense under State or local law relating to the use or operation of a motor vehicle.” Further, the IFR provides examples of such offenses, including those from the FAST Act (driving while intoxicated, reckless driving, driving without wearing a seat belt, and speeding), other priority safety programs (child restraint violation and prohibited use of a personal wireless communications device), any violation of a GDL program, and general “moving violations.” NHTSA believes that an extension of the learner's permit period is an effective tool for ensuring that novice drivers clearly demonstrate responsibility before advancing to a licensure stage requiring less supervision, and therefore it should apply to any violation of the State's driving laws. However, the IFR makes clear that “driving-related offense” does not include offenses related to motor vehicle registration, insurance, parking, or the presence or functionality of motor vehicle equipment (such as headlights or taillights that require replacement). As motor vehicles are often owned by the parents of novice drivers, NHTSA does not believe that offenses related to the vehicles themselves (registration, insurance, or functioning of equipment) should apply to the novice driver. Parking violations are also excluded from the definition because the violation generally applies to the owner of the vehicle, and such violations do not generally implicate safety. We note

that offenses such as failure to turn on headlights during nighttime hours are generally moving violations in States and are entirely within the control of a novice driver, in which case they must result in the extension of the learner's permit stage upon conviction.

The FAST Act also changed the automatic extension requirement in the MAP-21 IFR by applying this penalty only during the first six months of the stage, not for its entirety. A State that requires the extension of a learner's permit stage for a conviction that occurs after the first six months would not be disqualified from a grant, but it is no longer required. At this time, NHTSA is not requiring that the learner's permit stage extension be for a particular length of time.

3. Intermediate Stage (23 CFR 1300.26(e))

The FAST Act requires all 2-stage licensing processes to continue with an intermediate stage after the learner's permit stage but prior to receipt of an unrestricted license. As discussed above, the intermediate stage must apply to any novice driver who completes the learner's permit stage and is less than 18 years of age. (23 CFR §§ 1300.26(a), (d)(3), (e)(1)(i)) If a driver completes the learner's permit stage after turning 18 years of age, he or she is not required to participate in an intermediate stage and may receive an unrestricted license.

Under the IFR, the intermediate stage must commence after the applicant successfully completes the learner's permit stage, but prior to being issued by the State another permit, license, or endorsement (other than the intermediate license) to operate a motor vehicle on public roadways. This structure allows for a gap between the learner's permit stage and the intermediate stage, in the event the former expires prior to the novice driver being issued the latter. However, the novice driver may not be granted additional driving privileges beyond the intermediate stage until completion of that stage. In addition, the novice driver may not be issued an intermediate stage license until after he or she has passed a behind-the-wheel driving skills assessment (commonly known as a “road test”).

The intermediate stage must be in effect for a period of at least 6 months, and it must remain in effect until the intermediate license holder reaches at least 17 years of age. Thus, a State will not qualify for an incentive grant if it issues additional permits, licenses (including an unrestricted driver's license), or endorsements to an intermediate stage driver who has not reached at least 17 years of age and completed the requirements of that stage. As described above, a State may now qualify for an incentive grant if the intermediate stage expires automatically upon reaching 18 years of age, because drivers are no longer required to complete a 2-stage driving process once they have reached that age.

One of the two primary features of an intermediate stage in a GDL program is nighttime driving restrictions. Under the IFR, for the first six months of the intermediate stage, the driver must be accompanied and supervised by a licensed driver who is at least 21 years of age or a State-certified driving instructor while operating a motor vehicle between the hours of 10:00 p.m. and 5:00 a.m. The FAST Act changed this requirement as it existed under MAP-21 to apply only to the first six months of the intermediate stage, rather than to the entire stage. The FAST Act adopted the MAP-21 nighttime hours of 10:00 p.m. through 5:00 a.m., but added additional exceptions for “transportation to work, school, religious activities, or emergencies.” NHTSA believes that “to” was not intended to limit such exceptions to driving only toward these destinations and not to returning from these destinations. The IFR makes clear that the exceptions may apply to driving “for the purposes of work, school, religious activities, or emergencies.” This broadening of the nighttime driving exceptions should address the comments received in response to the MAP-21 IFR. Consistent with the purpose of the statute, the IFR allows accompaniment by a State-certified driving instructor, in addition to someone at least 21 years of age, to better align the accompaniment and supervision requirement with the learner's permit stage, as well as to allow for formal training during nighttime hours.

The second primary feature of an intermediate stage in a GDL program is the passenger restriction. The IFR requires that, for the entirety of the learner's permit stage, an intermediate license holder be prohibited from operating a motor vehicle with more than one nonfamilial passenger younger than 21 years of age unless a licensed driver who is at least 21 years of age or is a State-certified driving instructor is in the motor vehicle. This requirement is essentially unchanged from the MAP-21 IFR, though NHTSA has allowed a State-certified driving instructor to accompany a driver with more than one nonfamilial passenger younger than 21 years of age in order to allow for group behind-the-wheel training and ensure consistency with the learner's permit phase. We emphasize that the FAST Act does not include a 6-month limitation on this restriction; therefore, it must apply for the entirety of the intermediate stage.

Finally, the intermediate stage must include a prohibition on the use of a personal wireless communications device while driving and a requirement that the stage be extended if the intermediate license holder is convicted of a driving related offense or misrepresentation of a driver's true age during at least the first 6 months of the stage. The language of these restrictions is identical in the FAST Act for both the learner's permit and intermediate stages, and the IFR applies these restrictions to both stages identically.

4. Additional Changes From MAP-21 IFR

The MAP-21 IFR included a requirement that the State's learner's permit, intermediate license, and full driver's license be distinguishable from each other. One commenter did not support this license distinguishability criterion, stating it was not an inherent aspect of GDL law or directly related to improving the safety of novice drivers. The FAST Act repealed the statutory provision that gave NHTSA authority to prescribe additional requirements for State GDL programs to qualify for an incentive grant. License distinguishability was not included as a requirement in the FAST Act. For this reason, NHTSA removes this requirement to qualify for a GDL grant.

5. Exceptions to a State's GDL Program (23 CFR 1300.26(f))

MAP-21 created limited exceptions for States that enacted a law prior to January 1, 2011, establishing either of the following two classes of permit or license: a permit or license that allows drivers younger than 18 years of age to operate a motor vehicle in connection with work performed on, or the operation of, a farm owned by family members who are directly related; or a permit or license that is issued because demonstrable hardship would result from its denial to the licensee or applicant. For the second class of permit or license, the MAP-21 IFR clarified that a demonstration of unique, individualized hardship was required. Further, the MAP-21 IFR made clear that although novice drivers may possess one of these classes of permits or licenses, States were not permitted to provide them any other permit, license or endorsement until they completed the GDL process. The FAST Act did not

amend the exceptions that are permitted in State GDL programs. As a result, they are maintained in this IFR.

6. Grant Awards and Use of Grant Funds (23 CFR 1300.26(g), (h))

Under MAP-21, NHTSA was required to award grants to States that met the qualification criteria on the basis of the apportionment formula under Section 402 for that fiscal year. The FAST Act did not amend this provision, so it continues to be used in this IFR. (23 CFR 1300.26(g)) This grant award formula for the State GDL incentive grant program differs from the formula for the other Section 405 programs, where distributions are made in proportion to the State's apportionment under Section 402 for fiscal year 2009.

In addition to listing all the qualifying uses, the agency has reorganized this section under the IFR to list special rules that cover any other statutory requirement conditioning how grant funds are spent. As a general rule, grant funds must be used for certain expenses connected with the State's GDL law or to carry out a teen traffic safety program under 23 U.S.C. 402(m). Notwithstanding these uses, a State may use no more than 75 percent of the grant funds for any eligible project under Section 402. In addition, the FAST Act creates a special rule for low fatality States that allows them to use up to 100 percent of the grant funds awarded under this section for any eligible project under Section 402. Low fatality States are defined in the FAST Act as those “in the lowest 25 percent of all States for the number of drivers under age 18 involved in fatal crashes in the State per the total number of drivers under age 18 in the State based on the most recent data that conforms with criteria established by the Secretary.” For fatality information, the agency intends to use the most recently available final FARS data. For number of drivers, the agency intends to use Table DL-22 from the most recently available FHWA Highway Statistics publication issued by its Office of Highway Policy Information.

15

15

In collecting data for Table DL-22, FHWA requests that States include the total number of drivers with intermediate or unrestricted driver's licenses, but exclude learner's permits. NHTSA will therefore exclude learner's permit holders involved in fatal crashes from its FARS data for purposes of this calculation to ensure consistency and discourage States from shortening their learner's permit stages to improve their driver involvement rates in fatal crashes. In addition, because few States report data for drivers younger than 16 years of age, NHTSA's calculation of driver involved rates in fatal crashes will only include 16- and 17-year-old drivers, and exclude drivers younger than 16 years of age.

I. Nonmotorized Safety Grants (23 CFR 1300.27)

The FAST Act created a new Nonmotorized Safety Grant program, authorizing grants to enhance safety for bicyclists and pedestrians. The purpose of the new grant program is to support State efforts to decrease pedestrian and bicyclist fatalities and injuries that result from crashes involving a motor vehicle.

For assistance in developing nonmotorized safety programs, NHTSA encourages States to look to NHTSA's Uniform Guidelines for State Highway Safety Programs No. 14—Pedestrian and Bicycle Safety.

16

16

See http://www.nhtsa.gov/nhtsa/whatsup/tea21/tea21programs/pages/PedBikeSafety.htm.

States may also look to NHTSA's training courses on pedestrian safety training for law enforcement and enhancing bicycle safety.

See http://www.nhtsa.gov/Driving+Safety/Pedestrians/Pedestrian+Safety+Training+for+Law+Enforcement+(CD-ROM)

and

http://www.nhtsa.gov/Driving+Safety/Bicycles/Enhancing+Bicycle+Safety:+Law+Enforcement's+Role.

1. Eligibility Determination (23 CFR 1300.27(b))

As directed in the FAST Act, States are eligible for the Nonmotorized Safety Grant if the annual combined pedestrian and bicyclist fatalities in the State exceed 15 percent of the total annual crash fatalities in the State using the most recently available final data from NHTSA's FARS. Recently, FHWA established a nonmotorized performance measure for State departments of transportation to use to carry out the HSIP and to assess the number of serious injuries and fatalities of nonmotorized users. In creating this performance measure, FHWA includes other nonmotorized users besides pedestrians and bicyclists in its calculation of the “number of non-motorized fatalities.” However for the Nonmotorized Safety Grant program, the FAST Act specifies that eligible States shall receive a grant for “the purpose of decreasing pedestrian and bicycle fatalities and injuries that result from crashes involving a motor vehicle,” and does not mention other types of nonmotorized users. Using FARS data, NHTSA will calculate the percentage of each State's annual combined pedestrian and bicyclist fatalities in relation to the State's annual total crash fatalities, using Statistical Analysis System (SAS) software. NHTSA will not round or truncate this calculation. All States that exceed 15 percent will be eligible for a grant.

In January each year prior to the application due date, the agency will inform each State that is eligible for a grant.

2. Qualification Criteria (23 CFR 1300.27(c))

To qualify for a grant under this section, an eligible State must provide assurances that the State will use grant funds awarded under 23 U.S.C. 405(h) only for authorized uses.

3. Use of Grant Funds (23 CFR 1300.27(d))

The FAST Act specifies with particularity how States may use Nonmotorized Safety Grant funds. The IFR adopts the FAST Act language without change.

J. Racial Profiling Data Collection Grants (23 CFR 1300.28)

Section 1906 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy For Users (SAFETEA-LU) established an incentive grant program to prohibit racial profiling. Section 4011 of the FAST Act revised several aspects of the Section 1906 Program.

1. Purpose (23 CFR 1300.28(a))

The purpose of the SAFETEA-LU grant program was to encourage States to enact and enforce laws that prohibit the use of racial profiling in traffic law enforcement and to maintain and allow public inspection of statistical information regarding the race and ethnicity of the driver and any passengers for each motor vehicle stop in the State. The purpose of the new Section 1906 grant program is to encourage States to maintain and allow public inspection of statistical information on the race and ethnicity of the driver for all motor vehicle stops made on all public roads except those classified as local or minor rural roads.

2. Qualification Criteria (23 CFR 1300.28(b))

Under the SAFETEA-LU Section 1906 Program, States could qualify for a grant in one of two ways: (a) By enacting and enforcing a law that prohibits the use of racial profiling in the enforcement of State laws regulating the use of Federal-aid highways

and

maintaining and allowing public inspection of statistical information on the race and ethnicity of the driver and any passengers for each such motor vehicle stop made by a law enforcement officer on a Federal-aid highway (a “Law State”); or (b) by providing satisfactory assurances that the State is undertaking activities to prohibit racial profiling and to maintain and provide public access to data on the race and ethnicity of the driver and passengers

for each motor vehicle stop made by a law enforcement officer on a Federal-aid highway (an “Assurances State”). A State could not receive a grant for more than two fiscal years by qualifying for the grant as an Assurances State.

Section 4011 of the FAST Act revised several aspects of the Section 1906 grant program. States now may qualify for a 1906 grant by: (1) Maintaining and allowing public inspection of statistical information on the race and ethnicity of the driver for each motor vehicle stop made by a law enforcement officer on a Federal-aid highway; or (2) undertaking activities during the fiscal year of the grant to do so. Under the new 1906 Program, the clear emphasis is to encourage States to maintain and provide public access to statistical information on the race and ethnicity of drivers stopped by law enforcement officers on Federal-aid highways. This requirement extends to all law enforcement officers in a State, including local law enforcement. Use of the term “Federal-aid highway” is governed by Chapter 1 of Title 23, which defines it as a highway eligible for assistance under Chapter 1 other than a highway classified as a local road or rural minor collector. Consequently, the program's data collection requirement extends to all public roads except local and minor rural roads.

To qualify under the first criterion, the State must submit official documents (

i.e.,

a law, regulation, binding policy directive, letter from the Governor or court order) demonstrating that the State maintains and allows public inspection of statistical information on the race and ethnicity of drivers stopped by law enforcement officers on Federal-aid highways. To qualify under the second criterion, the State must provide assurances that the State will undertake activities to do so and provide a list of one or more projects in the HSP to support the assurances.

3. Limitations (23 CFR 1300.28(c))

The FAST Act places two limitations on grants. First, a State may not qualify for a grant under this section by providing assurances for more than two fiscal years. This IFR adopts this requirement.

The FAST Act also limits the total amount of grant funds awarded to a State each fiscal year. A State may not receive more than 5 percent of the grant funds made available under this section. By statute, NHTSA may reallocate funds not awarded under this section to carry out any of other activities authorized under 23 U.S.C. 403. (Activities authorized under 23 U.S.C. 403 are beyond the scope of this rule.)

4. Use of Grant Funds (23 CFR 1300.28(d))

Consistent with its emphasis on data collection, the new 1906 Program now provides that a State may use grant funds only for the costs of (1) collecting and maintaining data on traffic stops; and (2) evaluating the results of the data.

V. Administration of Highway Safety Grants

Today's action makes nonsubstantive changes to some sections and amends other sections to clarify existing requirements, provide for improved accountability of Federal funds and update requirements based on the Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, 2 CFR part 200, and the Department of Transportation's implementing regulation at 2 CFR part 1201.

A. Nonsubstantive Changes

In subparts D and E, the agency makes nonsubstantive changes, such as updating cross references, and terms, and adding references to Section 1906. Specifically, the agency makes nonsubstantive and clarifying changes to the following provisions in subparts D and E: §§ 1300.30 General, 1300.31 Equipment, 1300.36 Appeals of Written Decisions by a Regional Administrator, and 1300.42 Post-Grant Adjustments, 1300.43 Continuing Requirements.

B. Governmentwide Uniform Grant Requirements

A number of other requirements apply to the Section 402, 405 and 1906 programs, including such government-wide provisions as the Office of Management and Budget (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (2 CFR part 200) and DOT's implementing regulations of those Uniform Administrative Requirements (2 CFR part 1201). These provisions are independent of today's notice, and continue to apply in accordance with their terms. Throughout this IFR, citations to 49 CFR parts 18 and 19 and to OMB Circulars have been updated to refer to OMB's Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards as well as DOT's implementing regulations (2 CFR parts 200 and 1201). In addition, NHTSA has added citations to various provisions of OMB's Uniform Administrative Requirements throughout this IFR in order to provide additional notice to States about certain provisions, including risk assessment and consequences of non-compliance with government-wide or NHTSA grant requirements. Finally, NHTSA has deleted the provision on program income (§ 1300.34), and will rely the Uniform Administrative Requirements to address program income.

C. Updated Administrative Procedures of Note

The agency is responsible for overseeing and monitoring implementation of the grant programs to help ensure that recipients are meeting program and accountability requirements. Oversight procedures for monitoring the recipients' use of awarded funds can help the agency determine whether recipients are operating efficiently and effectively. Effective oversight procedures based on internal control standards for monitoring the recipients' use of awarded funds are key to ensuring that program funds are being spent in a manner consistent with statute and regulation. In order to improve oversight of grantee activities and management of federal funds, this IFR updates the procedures for administering the highway safety grant programs.

1. Amendments to the Highway Safety Plans (23 CFR 1300.32)

As noted in Section II.A. above, NHTSA anticipates implementing the Grants Management Solutions Suite (GMSS) beginning with fiscal year 2018 grants. GMSS satisfies the FAST Act requirement that NHTSA allow States to submit HSPs electronically. States will submit their HSPs electronically in GMSS to apply for grants. In addition, States will amend their HSPs and submit vouchers in GMSS. The agency expects GMSS to reduce the administrative burden on States. This IFR continues the existing requirement for approval of changes in the HSP by Regional Administrators. Today's action makes conforming changes to § 1300.32, including deleting the reference to the HS Form 217, which will no longer be required.

2. Vouchers and Project Agreement (23 CFR 1300.33)

While grantees or recipients have primary responsibility to administer, manage, and account for the use of grant funds, the Federal grant-awarding agency retains responsibility for oversight in accordance with applicable laws and regulations. Changes to the regulation are necessary to reflect the complexity of current grant programs

and to ensure effective oversight. Today's action requires additional documentation from States when submitting vouchers so that the agency has information linking vouchers to expenditures prior to approving reimbursements and to assist subsequent audits and reviews.

Consistent with the agency's expected implementation of GMSS, today's action amends § 1300.33. Most paragraphs in this section remain unchanged except for nonsubstantive updates to cross-references and terms. This IFR amends the content of the vouchers to conform with the implementation of GMSS and the revised HSP content requirements. As is currently required, States will continue to identify the amount of Federal funds for reimbursement, amount of Federal funds allocated to local benefit, and matching rate. In order to better maintain oversight of Federal grant funds, this IFR requires States to identify project numbers, amount of indirect cost, amount of planning and administration costs and program funding code. To ease the burden on States, the agency is working to program GMSS to populate a number of fields, such as project number and program funding code, from the HSP submission so that States will not have to upload duplicative entries into GMSS.

In response to the MAP-21 IFR, one commenter stated that a list of projects and project numbers was too burdensome because it would require, among other things, double entries. NHTSA is responsible for oversight in accordance with applicable laws and regulations. Without such information, the agency is unable to track whether grant funds are used in accordance with Federal law, including the period of availability for such funds. As stated above, NHTSA expects to implement GMSS to accept the submission of HSPs electronically so that many of the fields will automatically populate, and thus reduce the burden on States.

With these changes, the agency will be better able to track the State's expenditure of grant funds.

3. Annual Report (23 CFR 1300.35)

Today's action retains much of the existing requirements for the State's annual report and makes two targeted additions to require a description of the State's evidence-based enforcement program activities and an explanation of reasons for projects that were not implemented. The statute requires States to have sustained enforcement of traffic safety laws (

i.e.,

impaired driving, occupant protection and driving in excess of posted speed limits) as a condition of a Section 402 grant. (23 U.S.C. 402(b)(1)) The HSP that is approved by NHTSA contains information about the projects that the State intends to implement to meet performance targets. In order to improve oversight of grantee activities and management of federal funds, the IFR updates the annual report to require a description of the State's enforcement activities and an explanation of reasons for projects that were approved by NHTSA but not implemented. To ease the State's burden, NHTSA expects that States will be able to submit this information through GMSS beginning with fiscal year 2018.

4. Disposition of Unexpended Balances (23 CFR 1300.41)

A fundamental expectation of Congress is that funds made available to States will be used promptly and effectively to address the highway safety problems for which they were authorized. Section 402 and 405 grant funds are authorized for apportionment or allocation each fiscal year. Because these funds are made available each fiscal year, it is expected that States will strive to use these grant funds to carry out highway safety programs during the fiscal year of the grant. States should, to the fullest extent possible, expend these funds during the fiscal year to meet the intent of the Congress in funding an annual program.

Today's action retains many provisions in the MAP-21 IFR, such as the provision on deobligation of funds, but conforms the treatment of carry-forward funds to the revised HSP content requirements in § 1300.11(d). Two commenters to the MAP-21 IFR sought clarification on the treatment of grant funds awarded under previous authorizations. As provided in the MAP-21 IFR, the codified regulations in place at the time of grant award continue to apply.

D. Sanctions

Today's action reorganizes and clarifies 23 CFR 1300.51 in accordance with 23 U.S.C. 402(c). No substantive changes are made to this section.

This IFR adds a new sanction provision (23 CFR 1300.52) related to risk assessment and noncompliance with Federal requirements for grants. The OMB Circular (2 CFR part 200) introduced increased risk assessment procedures for Federal agencies and sub-recipients. This IFR explains that NHTSA will conduct risk assessments and incorporate risk assessment results into existing grant monitoring activities. NHTSA may impose conditions proportional to the degree of risk found.

VI. Special Provisions for Fiscal Year 2017 Grants

A. Fiscal Year 2017 Grant Applications (23 CFR 1300.60)

The FAST Act left a number of the National Priority Safety Program grants unchanged, provided additional flexibility for States to receive grants under others, and established new grants. Today's action streamlines and consolidates grant application requirements for Sections 402, 405 and 1906. For Section 402 grants, States are required to submit HSPs with performance measures and targets, a strategy for programming funds on projects and activities, and data and data analysis supporting the effectiveness of the countermeasures for NHTSA's approval. This IFR revises some of the HSP content requirements to allow States to use the HSP contents to not only meet the Section 402 requirements, but also meet some of the Section 405 grant requirements.

While these changes to the HSP and Section 405 grant r

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