# Uniform Procedures for State Highway Safety Grant Programs

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2022-18995

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** September 15, 2022
- **Citation:** 87 FR 56756

## Text

DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
23 CFR Part 1300
[Docket No. NHTSA-2022-0036]
RIN 2127-AM45
Uniform Procedures for State Highway Safety Grant Programs

AGENCY:

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

ACTION:

Notice of proposed rulemaking.

SUMMARY:

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

DATES:

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

ADDRESSES:

You may submit written comments, identified by docket number or RIN, by any of the following methods:

•
Federal eRulemaking Portal:
Go to
http://www.regulations.gov.
Follow the online instructions for submitting comments.

•
Mail:
Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Room W12-140, Washington, DC 20590-0001.

•
Hand Delivery or Courier:
1200 New Jersey Avenue SE, West Building, Ground Floor, Room W12-140, between 9 a.m. and 5 p.m. E.T., Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call 202-366-9826 before coming.

Comments on the proposed information collection requirements should be submitted to: Office of Management and Budget at
www.reginfo.gov/public/do/PRAMain.
To find this particular information collection, select “Currently under Review—Open for Public Comment” or use the search function. It is requested that comments sent to the OMB also be sent to the NHTSA rulemaking docket identified in the heading of this document.

Instructions:
All written submissions must include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking. Note that all comments received will be posted without change to
http://www.regulations.gov,
including any personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the “Public Participation” heading of the
SUPPLEMENTARY INFORMATION
section of this document.

For comments on the proposed collection of information, all submissions must include the agency name and docket number for the proposed collection of information. Note that all comments received will be posted without change to
http://www.regulations.gov,
including any personal information provided. Please see the Privacy Act heading below.

Docket:
For access to the docket go to
http://www.regulations.gov
at any time or to 1200 New Jersey Avenue SE, West Building, Ground Floor, Room W12-140, Washington, DC 20590 between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. Telephone: 202-366-9826.

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

FOR FURTHER INFORMATION CONTACT:

For program issues:
Barbara Sauers, Acting Associate Administrator, Regional Operations and Program Delivery, National Highway Traffic Safety Administration; Telephone number: (202) 366-0144; Email:
barbara.sauers@dot.gov.

For legal issues:
Megan Brown, Attorney-Advisor, Office of the Chief Counsel, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590; Telephone number: (202) 366-1834; Email:
megan.brown@dot.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. Comments From the Public Meeting and Request for Comments

III. General Provisions

IV. Triennial Highway Safety Plan and Annual Grant Application

V. National Priority Safety Program and Racial Profiling Data Collection

VI. Administration of Highway Safety Grants, Annual Reconciliation and Non-Compliance

VII. Request for Comments

VIII. Regulatory Analyses and Notices

I. Background

We face a crisis on our roadways. NHTSA projects that an estimated 42,915 people died in motor vehicle crashes in 2021.
1

This projection is the largest annual percentage increase in the history of the Fatality Analysis Reporting System. Projections for the first quarter of 2022 are even bleaker; an estimated 9,560 people died in motor vehicle crashes during this period.
2

If these projections are confirmed, this will be the highest number of first-quarter fatalities since 2002. Behind each of these numbers is a life tragically lost, and a family left behind. This crisis is urgent and preventable. NHTSA is redoubling our safety efforts and asking our State partners to join us in this critical pursuit. The programs to be implemented under today's rulemaking are an important part of that effort. Now, more than ever, we all must seize the opportunity to deliver accountable, efficient, and data-driven highway safety programs to save lives and reverse the deadly trend on our Nation's roads.

1
National Center for Statistics and Analysis. (2022, May). Early estimates of motor vehicle traffic fatalities and fatality rate by sub-categories in 2021 (Crash·Stats Brief Statistical Summary. Report No. DOT HS 813 298). National Highway Traffic Safety Administration.
Available at https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813298
.

2
National Center for Statistics and Analysis. (2022, August). Early estimate of motor vehicle traffic fatalities for the first quarter of 2022 (Crash·Stats Brief Statistical Summary. Report No. DOT HS 813 337). National Highway Traffic Safety Administration.
Available at https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813337
.

On November 15, 2021, the President signed into law the “Infrastructure Investment and Jobs Act” (known also as the Bipartisan Infrastructure Law, or BIL), Public Law 117-58. The BIL provides for a once-in-a-generation investment in highway safety, including a significant increase in the amount of funding available to States under NHTSA's highway safety grants. It introduced expanded requirements for public and community participation in funding decisions, holding the promise of ensuring better and more equitable use of Federal funds to address highway safety problems in the locations where they occur. The BIL amended the highway safety grant program (23 U.S.C. 402 or Section 402) and the National Priority Safety Program grants (23 U.S.C. 405 or Section 405). The BIL significantly changed the application structure of the grant programs that were in place under MAP-21 and the FAST Act. The legislation replaced the current annual Highway Safety Plan

(HSP), which serves as both a planning and application document, with a triennial HSP and Annual Grant Application, and it codified the annual reporting requirement. The BIL also made the following changes to the Section 405 grant program:

• Maintenance of Effort—Removed the maintenance of effort requirement for the Occupant Protection, State Traffic Safety Information System Improvements Grants, and Impaired Driving Grants;

• Occupant Protection Grants—Expanded allowable uses of funds and specified that at least 10% of grant funds must be used to implement child occupant protection programs for low-income and underserved populations;

• State Traffic Safety Information System Improvements Grants—Streamlined application requirements (
e.g.,
allows certification to several eligibility requirements and removes assessment requirement) and expanded allowable uses of funds;

• Impaired Driving Countermeasures Grants—Expanded allowable uses of funds;

• Alcohol-Ignition Interlock Law Grants—Added criteria for States to qualify for grants (
e.g.,
specified three ways for a State to qualify) and amended allocation formula;

• 24-7 Sobriety Programs Grants—Amended allocation formula;

• Distracted Driving Grants—Amended definitions, changed allocation formula, and amended requirements for qualifying laws;

• Motorcyclist Safety Grants—Added an eligibility criterion (
i.e.,
helmet law);

• State Graduated Driver Licensing Incentive Grants—Discontinued grant;

• Nonmotorized Safety Grants—Amended the definition of nonmotorized road user and expanded allowable uses of funds;

• Preventing Roadside Deaths—Established new grant; and

• Driver and Officer Safety Education—Established new grant.

In addition, the BIL amended the racial profiling data collection grant authorized under the “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users” (SAFETEA-LU), Sec. 1906, Public Law 109-59 (Section 1906), as amended by the FAST Act, to expand the allowable uses of funds and amend the cap on grant award amounts. It also removed the time limit for States to qualify for a 1906 grant using assurances.

As in past authorizations, the BIL requires NHTSA to implement the grants pursuant to rulemaking. On April 21, 2022, the agency published a notification of public meeting and request for comments (RFC). 87 FR 23780. In that document, the agency sought comment on several aspects relating to this rulemaking. Today's action proposes regulatory language to implement the BIL provisions and addresses comments received at the public meeting and in response to the RFC.

This Notice of Proposed Rulemaking (NPRM) proposes application, approval, and administrative requirements for all 23 U.S.C. Chapter 4 grants and the Section 1906 grants, consistent with the requirements set forth in the BIL. Section 402, as amended by the BIL, continues to require each State to have an approved highway safety program designed to reduce traffic crashes and the resulting deaths, injuries, and property damage. Section 402 sets forth minimum requirements with which each State's highway safety program must comply. Under new procedures established by the BIL, each State must submit for NHTSA approval a triennial Highway Safety Plan (“triennial HSP”) that identifies highway safety problems, establishes performance measures and targets, describes the State's countermeasure strategies for programming funds to achieve its performance targets, and reports on the State's progress in achieving the targets set in the prior HSP. 23 U.S.C. 402(k). Each State must also submit for NHTSA approval an annual grant application that provides any necessary updates to the triennial HSP, identifies all projects and subrecipients to be funded by the State with highway safety grant funds during the fiscal year, describes how the State's strategy to use grant funds was adjusted based on the State's latest annual report, and includes an application for additional grants available under Chapter 4. (23 U.S.C. 402(l)) The agency proposes to reorganize and rewrite subpart B of part 1300, as well as 23 CFR 1300.35 to implement these changes.

As noted above, the BIL expanded the allowable uses of funds for many of the National Priority Safety Program grants, amended allocation formulas, added criteria for some grants and streamlined application requirements for others, deleted one grant, and established two new grants. For Section 405 grants with additional flexibility (Occupant Protection Grants, State Traffic Safety Information System Improvements Grants, Impaired Driving Countermeasures Grants, Alcohol-Ignition Interlock Law Grants, Distracted Driving Grants, Motorcyclist Safety Grants, Nonmotorized Safety Grants, and Racial Profiling Data Collection Grants) and for the new grants (Preventing Roadside Deaths Grants and Driver and Officer Safety Education Grants), where the BIL identified specific qualification requirements, today's action proposes adopting the statutory language with limited changes. The agency is also proposing aligning the application requirements for all Section 405 and Section 1906 grants with the new triennial HSP and annual grant application framework.

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

II. Comments From the Public Meeting and Request for Comments

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

Mari Lynch; Minnesota Department of Public Safety (MN DPS); National Association of City Transportation Officials (NACTO); National Association of Emergency Medical Technicians (NAEMT); National Association of State 911 Administrators (NASNA); National Association of State Emergency Medical Services Officials (NASEMSO); National Safety Council (NSC); National Sheriffs' Association; New York State Governor's Traffic Safety Committee (NY GTSC); Oregon Department of Transportation Safety Office (OR DOT); Paul Hoffman; Rebecca Sanders; Safe Kids Worldwide; Safe Routes Partnership; SafetyBeltSafe U.S.A.; Saratoga County, NY Emergency Medical Services (Saratoga County); Scott Brody; Pedestrian Safety Solutions; Tom Schwerdt; Transportation Equity Caucus; Vision Zero Network; Washington Traffic Safety Commission (WA TSC); Wisconsin Bureau of Transportation Safety (WI BOTS); Wisconsin Bureau of Transportation Safety, Division of State Patrol (WI BOTS Patrol); joint submission by the Departments of Transportation of Idaho, Montana, North Dakota, South Dakota and Wyoming (5-State DOTs); and three anonymous commenters. Five of these commenters (5-State DOTs; WA TSC; Brandy Nannini; MN DPS; and CT HSO) expressed general support for GHSA's comments. The WA TSC also expressed support for the comments provided by the MN DPS, CA HSO and NY GTSC.

NHTSA received communications directly from three organizations prior to the Request for Comment. (
See
letter from Governor's Highway Safety Association (GHSA); a letter from Mothers Against Drunk Driving (MADD); and a joint letter from Governor's Highway Safety Association, Responsibility Initiatives, National Alliance to Stop Impaired Driving, Mothers Against Drunk Driving, National Safety Council, and Coalition of Ignition Interlock Manufacturers.) Because of the substantive nature of these communications, NHTSA added them to the docket for this rule.

In this preamble, NHTSA addresses all comments and identifies any proposed changes made to the existing regulatory text in part 1300.
3

In addition, NHTSA makes several technical corrections to cross-references and other non-substantive editorial corrections necessitated by proposed changes to the rule. For ease of reference, the preamble identifies in parentheses within each subheading and at appropriate places in the explanatory paragraphs the CFR citation for the corresponding regulatory text.

3
Fourteen commenters submitted comments that are outside the scope of this rulemaking, including comments related to infrastructure and road design, vehicle and other private technologies, NHTSA's Section 403 authorities, suggestions for NHTSA research and messaging, substantive requirements for data systems, a recommendation that NHTSA mandate cell phone technology, a request that NHTSA publish outside entities' research, and general statements about the importance of traffic safety. As these comments are outside the scope of NHTSA's Section 402 and 405 grant programs, they are beyond the scope of this rulemaking and will not be addressed further in this preamble.

Many commenters provided general input about the rulemaking process or to overarching aspects of highway safety that cannot be tied to a single regulatory provision. Those comments are discussed below.

A. Rulemaking Process

Several commenters
4

stated that NHTSA should ensure fidelity to the spirit and letter of Congressional directives, minimize administrative burden on States, and provide great flexibility in use of funds. They explained that unnecessary administrative burdens shift States' focus away from program delivery and discourage subrecipient participation. The 5-State DOTs additionally recommended that NHTSA strive to avoid duplicative planning and reporting burdens between DOT agencies, and to consult with FHWA during the rulemaking process. As will be clear throughout this preamble and in the proposed rule itself, NHTSA's primary goal in this notice of proposed rulemaking is to propose a regulation that will implement the statutory requirements for the highway safety grant program. It is not our intention to impose unnecessary administrative burdens on States or their subrecipients. However, as a grantor agency, we have a responsibility to ensure that Federal grant funds are spent for the purposes Congress specifies and consistent with all legal requirements. Applicable legal requirements include both the Section 402 and 405 statutory text, as well as other Federal grant laws and regulation. Those statutory requirements include the submission of a triennial plan that sets forth how a state will use funds to reduce traffic crashes, fatalities, serious injuries, and economic harm through the use of effective countermeasures.

4
AASHTO, GHSA, MN DPS, NY GTSC, WI BOTS and 5-State DOTs.

AASHTO, GHSA and SafetyBeltSafe U.S.A. all submitted comments supporting increased public participation and opportunity to comment in NHTSA's rulemaking process. AASHTO encouraged NHTSA to consider all comments received, which we do in this action and will continue to do throughout the rulemaking process. GHSA expressed support for NHTSA's intention to publish a NPRM rather than publishing an Interim Final Rule, noting that it will provide opportunity for public comment. And SafetyBeltSafe U.S.A. expressed appreciation for the public meetings NHTSA held as part of its RFC, noting that they provided an opportunity to bring different parts of the traffic safety community together. NHTSA appreciates these comments and the comments received in response to the RFC, and we encourage comments responding to this NPRM. We commit to considering all comments carefully and thoughtfully.

GHSA requested that NHTSA complete the rulemaking process quickly in order to facilitate States in their highway safety planning and application processes. GHSA specifically sought first, publication of the final rule by October 2022, and in a later comment, publication by the end of December 2022. NHTSA appreciates the need to finalize the rule with sufficient time for States to rely on the rule in completing their fiscal year (FY) 2024 triennial HSPs and Annual Grant Applications, due July 1 and August 1, 2023, respectively. While it is not possible to complete the full rulemaking process, in accordance with the Administrative Procedure Act (5 U.S.C. 553), within the timeline proposed by GHSA, NHTSA plans to publish a Final Rule with sufficient time for States to rely on the rule for their FY24 grant applications.

GHSA further recommended that NHTSA establish an effective date of Federal fiscal year 2024 for the rule. Consistent with the BIL, the final rule, when published, will be effective for fiscal year 2024 and later grants.

GHSA and the NY GTSC stressed the importance of uniform and consistent guidance so that States can rely on the same interpretations. AASHTO recommended that the agency focus on providing program-level guidance while allowing for effective collaboration and coordination of State programs. GHSA further suggested several specific NHTSA guidance documents that it would like the agency to review or create in light of the statutory changes implemented in the BIL and based on past experience. The agency recognizes that some existing guidance may require modification or recission as a result of changes to the statute and this rule. We intend to begin reviewing existing guidance after this rulemaking is complete and will keep the specific

suggestions provided by GHSA in mind at that time.

B. Equity

NHTSA received several comments stressing the importance of equity in traffic safety programs. The Transportation Equity Caucus noted that the concept of public safety may be defined differently in different communities and recommended that NHTSA be guided by Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities Through Federal Government. NHTSA strongly supports the policies and commitment to equity laid out in the Executive Order and is committed to fulfilling our responsibilities under the Order and to following its principles. For example, NHTSA's Office of Civil Rights (NCR) recently hired a Division Chief to focus on the enforcement of Title VI of the Civil Rights Act of 1964, which prohibits recipients of Federal financial assistance from discriminating against persons on the basis of race, color, or national origin (including limited English proficiency). NCR is also hiring a Division Chief to serve as principal staff advisor on all activities related to the Americans with Disabilities Act and Section and Section 504 of the Rehabilitation Act of 1973. Additionally, NHTSA's Office of Grants Management and Operations is preparing to hire two program analysts to focus on stakeholder engagement, equity in traffic safety, and the needs of populations that are overrepresented in traffic fatalities and serious injuries.

In addition, NHTSA was guided, in part, by the Order's requirement to increase opportunities for public engagement when we decided to hold three hearings and publish an RFC in advance of drafting this notice of proposed rulemaking. As a result of those hearings and the RFC, NHTSA received numerous comments from groups specifically focused on equity, from representatives of non-profit community groups, and from members of the public. Many commenters emphasized the importance of equity in highway traffic safety, and several made specific recommendations for the agency to consider. Many of the comments touch on different areas of NHTSA's work that have an impact on the grant program, including NHTSA's research and technical assistance activities. A number of the comments relate to NHTSA activities that fall outside the scope of the rulemaking, which is limited to applications and grant management in the highway safety grant program. In recognition of the importance of the topic, and in appreciation for the thoughtful consideration that went into submission of those comments, we will nonetheless summarize and briefly respond to all comments we received relating to equity.

Many commenters submitted comments asking NHTSA to place less emphasis on enforcement as a traffic safety countermeasure
5

or to discontinue funding law enforcement altogether.
6

Relatedly, several commenters expressed concern that NHTSA's grant funds provide support for pretextual stops by law enforcement, with several specifically mentioning NHTSA's support for the Data-Driven Approaches to Crime and Traffic Safety (DDACTS) program.
7

The commenters expressed serious and data-driven concerns about the disparate impacts of policing and the incidence of police violence during traffic stops, especially during pretextual stops. (
See id.
)

5
League of American Bicyclists, NACTO, Safe Routes Partnerships, and Vision Zero Network.

6
TEC.

7
League of American Bicyclists, NACTO, Transportation Equity Caucus, and Vision Zero Network.

NHTSA's partnerships with law enforcement and advocacy communities are an important part of traffic safety work, and equity must be at the forefront in that work. The public must be able to trust that law enforcement will treat all persons fairly, regardless of race, color, sex, age, national origin, religion or disability. NHTSA engages in an ongoing dialog with the Center for Policing Equity regarding advancing equity in traffic safety enforcement. NHTSA is also working to center equity in its ongoing relationship with both the National Sheriffs' Association and the International Association of Chiefs of Police, as the National Sheriffs' Association recommended in its comment.

Equally important are the States' partnerships and relationships of trust with their own law enforcement resources. Fundamentally, recipients of Federal grant funds are prohibited from using the funds in a discriminatory manner. As a result, all State grant recipients must ensure that the law enforcement agencies to which they provide highway safety grant funds have strong equity-based enforcement practices. NHTSA's highway safety grant funds may only be used for permissible traffic safety purposes. Use of NHTSA grant funds for discriminatory practices, including those associated with pretextual policing, violates Federal civil rights laws and NHTSA will seek repayment of any grant funds that are found to be used for such purposes and refer any discriminatory incidents to the Department of Justice.

DDACTS is a law enforcement operational model that integrates location-based traffic-crash and crime data to determine the most effective methods for deploying law enforcement and other resources. It focuses on community collaboration to reinforce the role that partnerships play in improving the quality of life in communities and encourages law enforcement agencies to use effective engagement and new strategies. NHTSA continuously reviews the content of DDACTS training and works to ensure that the training focuses on community engagement and the appropriate application of fair and equitable traffic enforcement strategies. Note, however, that not all DDACTS-related activities are eligible uses of NHTSA's highway traffic safety grant funds. NHTSA's grant funds may only be used for traffic safety activities; any other use of law enforcement is not eligible for funding under the highway traffic safety grants. NHTSA will continue to evaluate DDACTS to ensure that it promotes only enforcement that is implemented fairly and equitably.

Both the Vision Zero Network and Safe Routes Partnerships stressed the importance of meaningful community engagement in designing equitable traffic safety programs. The BIL added a requirement for States to include meaningful public participation and engagement in State highway safety programs. 23 U.S.C. 402(b)(1)(B). In addition, Title VI of the Civil Rights Act of 1964 (Title VI), as implemented through DOT Order 1000.12C, requires that recipients of Federal funding submit a Community Participation Plan to ensure diverse views are heard and considered throughout all stages of the consultation, planning, and decision-making process. NHTSA agrees with the commenters that increased community engagement can help ensure that State highway safety programs are more equitable, and proposes regulatory provisions to implement BIL's requirement along with the Community Participation requirements from Title VI of the Civil Rights Act of 1964.
8

These requirements will be discussed in more detail in the relevant sections of this preamble.
See
23 CFR 1300.11(b)(2) and 23 CFR 1300.12(b)(2).

8
42 U.S.C. 2000d
et seq.

The Vision Zero Network recommended several strategies to rethink and expand the ways education and enforcement are utilized in traffic safety. Among other things, it

recommended that NHTSA: research equitable education and enforcement strategies; promote alternatives to traditional enforcement strategies, criminalization, and fines; educate key influencers in the safe system approach; promote safe, sustainable mobility options; and support grassroots safety advocacy. NHTSA appreciates these suggestions and is already beginning to implement these strategies, including through a cooperative agreement with the National Safety Council supporting the Road to Zero Coalition's community traffic safety grants. NHTSA encourages States to consider these and other strategies when planning their highway safety programs and will work with States as they develop their triennial Highway Safety Plans. The Vision Zero Network also suggested that NHTSA fund State assessments of equity outcomes of enforcement work and pilot alternative strategies. Some NHTSA grant funds may be used for these purposes. For example, the 1906 grant program provides funding for collecting, maintaining, and evaluating race and ethnicity data on traffic stops, as well as to develop and implement programs to reduce the disparate impacts of traffic stops. In addition, the Section 402 grant program provides broad eligible uses of funds, including demonstration programs. NHTSA encourages States to reach out to their Regional Office to discuss whether a particular pilot program may be an eligible use of NHTSA grant funds as these determinations are often fact-specific. NHTSA will also work with States to share information about best practices and to identify effective and allowable uses of funds for equity outcomes in enforcement work.

The NY GTSC recommended some specific actions that the State has implemented to support the inclusion of equity in its highway safety program, including creation of groups such as the New York State Equity Subcommittee, to ensure programming reaches underserved communities that are overrepresented in traffic crashes. In addition, New York recommended that States expand the data sources they consider, to include census and demographic information, as well as anecdotal information combined with localized crash data in order to conduct outreach efforts. NHTSA appreciates these examples and the efforts that the State already has underway. The agency supports all States looking into additional ways to identify and reach non-traditional highway safety partners and will work to encourage the sharing of effective programs among the States.

The Vision Zero Network recommended that NHTSA take action on the equity-related suggestions in the Federal Highway Administration's report titled “Integrating the Safe System Approach with the Highway Safety Improvement Program.” While that report is targeted to FHWA's HSIP program, NHTSA nonetheless agrees with the overarching principles, including the need to include equity considerations throughout all aspects of the highway safety grant program. This proposal supports these efforts through the increased emphasis on public participation in highway safety planning and through explicitly including demographic data as a resource for States to consult during problem identification.

Finally, the League of American Bicyclists recommended that NHTSA consider discriminatory outcomes of countermeasures when promoting our
Countermeasures That Work
guide.
9

It specifically mentioned the costs of discriminatory enforcement and disparate impacts of required fines on low-income people. As noted earlier, discriminatory enforcement has no place in NHTSA's grant programs or under Federal civil rights laws, and NHTSA will take prompt and appropriate action when it becomes aware of any such activity under NHTSA grant programs. NHTSA is currently working on the next edition of the
Countermeasures That Work,
and will explore the considerations raised by the commenter in the course of that undertaking.

9

Available online at https://www.nhtsa.gov/sites/nhtsa.gov/files/2021-09/Countermeasures-10th_080621_v5_tag.pdf
.

C. National Roadway Safety Strategy and the Safe System Approach

NHTSA appreciates the thoughtful feedback from several commenters regarding the Department's implementation of the National Roadway Safety Strategy (NRSS) and the Safe System Approach (SSA). While the substance of the Department's strategy laid out in the NRSS and the SSA is not within the scope of this rulemaking, the activities carried out through the grant program play an important role in implementing the NRSS and the SSA. The objectives of the NRSS/SSA are inherently intertwined with NHTSA's data-driven mission to save lives, prevent injuries, and reduce economic costs due to road traffic crashes through education, research, safety standards, and enforcement. To address the unacceptable increases in fatalities on our nation's roadways, the NRSS/SSA adopts a data-driven, holistic, and comprehensive approach focused on reducing the role that human mistakes play in negative traffic outcomes and in recognizing the vulnerability of humans on the roads. We recognize all the contributing factors involved with a safe system approach: equity, engineering, education, enforcement, and emergency medical services.

Four commenters
10

stated broad support for the principles and promise of the NRSS. Six commenters
11

noted that implementing the NRSS will require NHTSA to afford administrative flexibility to States, which NHTSA intends to provide consistent with the law. AASHTO stressed the need to coordinate behavioral and infrastructure-based traffic safety initiatives. This comment is consistent with Congress' clear intent. Section 402 requires that a State highway safety program must coordinate the highway safety plan, data collection, and information systems with the State strategic highway safety plan (SHSP) under 23 U.S.C. 148(a). NHTSA has long incorporated this requirement into the grant program regulation at 23 CFR 1300.4(c)(11). In addition, since 2016, States have been required to submit and report on identical common performance measures in both the HSP and the SHSP, thus ensuring that State behavioral and infrastructure-based programs collaborate in planning and measuring progress towards those common targets.

10
CA OTS, ESS, Inc., League of American Bicyclists and WA TSC.

11
Brandy Nannini, CT HSO, GHSA, MN DPS, WI BTS and 5-State DOTs.

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

GHSA raised the concern that the SSA framing that people make mistakes will be misunderstood to absolve drivers from responsibility for safe driving

behaviors. Acknowledging that humans make mistakes does not absolve drivers of responsibility; it seeks to understand better how mistakes happen, identify potential solutions and develop redundancies in the system in order to minimize the consequences when any part of the system fails. As the League of American Bicyclists and WA TSC noted, roadway safety is a shared responsibility. The traveling public also has a role to play. Each of us uses our roads almost every day, whether as a motorist, a passenger, or when walking, biking, or rolling. Our actions should prioritize safety first and we should use every effective strategy we can to reduce fatalities and injuries.

Four commenters suggested that NHTSA undertake activities to help States implement the NRSS and the SSA. CA OTS, GHSA, and Vision Zero Network all suggested that NHTSA support State efforts to implement the SSA by undertaking research to identify best practices and then providing guidance to States on those best practices. Vision Zero Network and WA TSC recommended that NHTSA train the State highway safety offices (HSOs) on the SSA and that the HSOs in turn train their subrecipients. In May 2022, as part of NHTSA's ongoing efforts to provide resources to assist states with implementing the NRSS and the SSA, NHTSA announced an expanded safety program technical assistance offered to States. This technical assistance aligns with the priorities and objectives of the NRSS. We will continue to assess States' needs and offer assistance in implementing the NRSS and SSA where possible as States implement their programs.

D. Transparency

The BIL expanded the transparency requirements for Section 402. Specifically, the BIL requires NHTSA to publicly release, on a DOT website, all approved triennial HSPs and annual reports. 23 U.S.C. 402(n)(1). In addition, the website must allow the public to search specific information included in those documents: performance measures, the State's progress towards meeting the performance targets, program areas and expenditures, and a description of any sources of funds other than NHTSA highway safety grant funds that the State proposes to use to carry out the triennial HSP.
Id.
NHTSA will post this information on
NHTSA.gov
consistent with the statutory requirements. While the statutory requirement for NHTSA to release this information does not require regulatory implementation, the information contained in the State documents, and thereafter released online, implicates the substance of the rule. For ease of reading, NHTSA addresses the majority of the requirements for the triennial HSP and annual report in other sections of this rule. However, we will address some of the transparency recommendations that commenters specifically provided here.

Both Advocates and the NSC submitted comments that broadly supported increased transparency, noting that transparency is vital for the public to measure the success of the highway safety grant program. Several commenters provided recommendations for information that they believe would help allow States and stakeholders to compare programs between States. The League of American Bicyclists recommended that NHTSA require States to provide information in the annual application that will show who receives grant funding and what the funding is used for in a manner that allows comparisons between States. NHTSA agrees, and believes that the project information, including subrecipients and information on the eligible use of funds, that BIL and the proposed regulation require for each project will serve this purpose.
See
23 U.S.C. 402(l)(1)(C)(ii) and 23 CFR 1300.12(b)(2). The NSC recommended that NHTSA require states to submit, and then release publicly, information on how much funding is used for direct programmatic activities, the short- and long-term impacts of State highway safety programs, and discussion about how community engagement informed the State's proposed use of funds. NHTSA proposes to include some of this information in the proposed regulation. Specifically, NHTSA proposes to require that States identify in the annual grant application the amount of costs attributed to planning and administration.
See
23 CFR 1300.12(b)(2)(viii). In addition, NHTSA proposes to require that States assess progress towards meeting performance targets and provide a description of how the projects that the State implemented were informed by meaningful public participation and engagement.
See
23 CFR 1300.35(a) and 1300.35(b)(1). NSC further recommended that at a minimum, States be required to report financial data, information on which regulations they complied with, and project data showing progress and community impact. NHTSA notes that financial data are required of all Federal grant recipients by 2 CFR 200.328 and that requirement is incorporated into NHTSA's proposed regulation at 23 CFR 1300.12(b)(2). NHTSA does not believe it is necessary to require States to provide a list of regulations to which they adhere. Federal grant recipients are responsible for, and States certify to, compliance with all applicable Federal laws and regulations, and States may be further subject to State laws and regulations. Many of those applicable laws and regulations are listed in proposed appendix A. Finally, NSC recommended that annual reports should be made available to the public for comment and that States should be required to incorporate those comments into their triennial HSPs. NHTSA already posts State annual reports online at
NHTSA.gov,
as is required by the BIL.
See
23 U.S.C. 402(n)(2)(B). However, NHTSA does not have authority to impose public comment on State annual reports, nor does NHTSA have authority to require States to incorporate any comments on annual reports that they may receive through other channels. That said, States may do so as part of a public engagement process, if they wish.

GHSA noted that transitioning to an electronic grant management system would enable greater transparency in the use of NHTSA highway safety grant funds by allowing State program information contained in that system to be aggregated, organized, and made available to the public in a user-friendly manner. NHTSA agrees and is currently in the process of working to update our grant management system. We expect that this will facilitate greater cross-state collaboration and data analysis in addition to greater transparency in the use of program funding. In the meantime, NHTSA requests comment on a potential approach to develop a standardized template, codified as an appendix to the regulation, that States could use to provide information in a uniform manner similar to what we hope will be enabled by a future E-grant system. This would also potentially respond to comments from the League of American Bicyclists, Safe Routes Partnership, and Vision Zero Network seeking reports that are easier to read and that enable comparison between States in a useful manner.

E. Emergency Medical Services

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

Eight commenters discussed eligibility for funding under NHTSA's

highway safety grant program. NAEMT and Saratoga County EMS both provided a general statement that funding should be provided to EMS offices and providers via the State highway safety offices. Aaron Katz and the American Ambulance Association both requested that funding be provided to EMS offices regardless of whether the EMS provider is for-profit, a hospital, or a municipal service. The International Association of Fire Chiefs seeks to ensure that even the smaller EMS agencies receive Federal funding. Leon County EMS, Covington County Hospital Ambulance and Brian Maguire, et. al all requested that NHTSA provide funding directly to EMS agencies, rather than going through State highway safety offices. Finally, Brian Maguire, et. al recommended that States be required to report the amount of funding that is provided to EMS agencies and that all grant funds that remain unexpended at the end of the third quarter be reallocated directly to EMS agencies. NHTSA supports the EMS communities' efforts to integrate post-crash care initiatives into State highway safety programs where supported by the data and encourages States to consider funding eligible EMS activities with NHTSA's highway safety grant funds. However, under our grant statute, NHTSA does not have the authority to direct State funding choices or to provide funding directly to EMS agencies.

Eighteen commenters
12

provided recommendations or requests that specified that certain costs be considered allowable uses of NHTSA highway safety grant funds. Identified costs included post-crash care, training, research, development and purchase of equipment and technology, data gathering and access, emergency vehicle outfitting, enhancements to 911 systems and collision notification systems. NASEMSO requested specific clarification that EMS agencies are not required to limit funding requests related to NEMSIS software, personnel, maintenance and training only in proportion to the percentage of NEMSIS entries that are connected to traffic-related incidents. Determinations of allowable use of funds are highly fact-specific and are dependent on many factors, including the funding source to be used (
i.e.,
Section 402 or one of the Section 405 incentive grants) and the details of the activity to be funded. In some cases, projects may be limited to proportional funding, if there is not a sufficient nexus to traffic safety to fund the entirety of the project. In addition, all activities funded by NHTSA highway safety grant funds must be tied to countermeasure strategies for programming funds in the State's triennial HSP, which in turn must be based on a State's problem identification and performance targets. NHTSA strongly encourages all stakeholders, including the EMS community, to work closely with State HSOs to educate them on all available data sources, including NEMSIS, that would assist them with problem identification and the development of countermeasure strategies, as well as to offer ideas for potential activities that may be eligible for NHTSA formula grant funding.

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

Six commenters
13

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

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

F. Other

GHSA requested amendments to appendices A and B, both of which are required components of State's annual grant application submission. Specifically, GHSA asked that NHTSA format the Appendices, which serve as application documents, so that the signature page is separate from the other pages of the document in order to streamline State approval. The Appendices, consisting of the Certifications and Assurances for Highway Safety Grants and the Application Requirements for Section 405 and Section 1906 Grants, serve as official documents for State grant applications. The signature on those documents serves as a formal, legal attestation from the Governor's Representative that the contents of the State's application are accurate and that the State agrees to comply with all applicable laws, regulations, and financial and programmatic requirements. It is therefore necessary that the signatory see the entire document and that the document not be edited after a signature is appended. NHTSA therefore declines to adopt this suggestion.

Separately, GHSA noted that the BIL expanded the eligible use of Section 154 and Section 164 grant funds to include measures to reduce drug-impaired driving, and requested that NHTSA clarify that those changes had immediate effect. NHTSA affirms GHSA's interpretation; the BIL changes to Section 154/164 took effect immediately upon enactment of the BIL.

III. General Provisions (Subpart A)

A. Definitions (23 CFR 1300.3)

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

Today's action also proposes to amend some existing definitions, such as those for performance target, problem identification, and program area, to provide further clarity to States. The definition for project was amended to incorporate the BIL's statutory definition of “funded project.” 23 U.S.C. 406(a). The agency proposes to amend the definition for serious injuries to reflect the publication of the 5th Edition of the Model Minimum Uniform Crash Criteria (MMUCC) Guideline.

Finally, this NPRM proposes to delete the definitions for three terms that are not used in the regulatory text: fatality rate, five-year (5 year) rolling average, and number of serious injuries. NHTSA also proposes to delete the definition for “number of fatalities” as we believe it is self-explanatory.

B. State Highway Safety Agency (23 CFR 1300.4)

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

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

The creation of a new triennial framework is the most significant change that BIL made to the highway safety grant program. In BIL, Congress replaced the annual Highway Safety Plan (HSP), which serves as both a planning and application document under MAP-21 and the FAST Act, with a Triennial HSP and Annual Grant Application. As part of this framework, Congress increased community participation requirements and codified the annual reporting requirement.

Under the new procedures established by BIL, each State must submit for NHTSA approval a triennial Highway Safety Plan (“triennial HSP” or “3HSP”) that identifies highway safety problems, establishes performance measures and targets, describes the State's countermeasure strategies for programming funds to achieve its performance targets, and reports on the State's progress in achieving the targets set in the prior HSP. (23 U.S.C. 402(k)) Each State must also submit for NHTSA approval an annual grant application that provides any necessary updates to the triennial HSP, identifies all projects and subrecipients to be funded by the State with highway safety grant funds during the fiscal year, describes how the State's strategy to use grant funds was adjusted by the State's latest annual report, and includes an application for additional grants available under Chapter 4. (23 U.S.C. 402(l)(1)) Finally, each State must submit an annual report that assesses the progress made by the State in achieving the performance targets set out in the triennial HSP and describes how that progress aligns with the triennial HSP, including any plans to adjust the State's countermeasure strategy for programming funds in order to meet those targets. (23 U.S.C. 402(l)(2))

This new framework continues many of the requirements that States previously were required to meet under the annual HSP requirement, but distributes them between the triennial HSP and the annual application. This redistribution requires NHTSA to update language throughout the regulation in order to clarify to which submission a particular requirement applies. References to the HSP have now been updated to refer to either the triennial HSP or, more frequently, the annual grant application. In addition, NHTSA has removed all references to planned activities throughout the regulation. This will address GHSA's comments that the concept of planned activities was burdensome to States. NHTSA had created the concept of planned activities in the final rule implementing the FAST Act in response to comments from States that they did not have project-level information available at the time of drafting the HSP. However, the BIL now explicitly requires project information in the annual grant application, as described in more detail below. As a result, references to planned activities in the HSP have been updated throughout the regulation to refer to projects in the annual grant application. References to “countermeasure strategies” now link to the triennial HSP instead of the HSP.

In addition, NHTSA has reorganized subpart B of part 1300 to accommodate the new triennial framework. Where previously subpart B was fully directed at the HSP, the subpart now includes separate sections for the triennial HSP, the annual grant application, and specific requirements for Section 402. Section 1300.10 provides that, in order to apply for any highway safety grant under Chapter 4 and Section 1906, a State must submit both a triennial Highway Safety Plan and an annual grant application. The requirements for the triennial HSP and annual grant application, including deadline, contents, and review and approval procedures, are set out in §§ 1300.11 and 1300.12, respectively. Section 1300.13 lays out the special funding conditions for Section 402 grants, and Section 1300.15 provides the rules for NHTSA's apportionment and obligation of Federal funds under Section 402. The agency reserves § 1300.14. The contents of each section will be discussed in more depth below.

There appears to be some confusion among commenters about the timeframes envisioned by BIL for submissions under this framework. AASHTO and GHSA, supported by many State commenters, recommended that for the first year of each triennial cycle, States only be required to submit a triennial HSP along with appendix B, with no annual grant application. They then agreed that States would submit annual applications in the second and third years. This is inconsistent with the statutory requirement. As laid out in BIL, States must submit both a triennial HSP and an annual application in the first year of a triennial cycle, with only an annual grant application for years two and three.
See
23 U.S.C. 402. As the many commenters who urged NHTSA to clearly distinguish the two submissions make clear, the triennial HSP and annual grant application fulfill different

purposes. As commenters
14

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

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

In addition to the broad comments that the agency ensure fidelity to the law in drafting the regulatory text, GHSA specifically requested that NHTSA refrain from requiring application or reporting requirements beyond those explicitly authorized by law. NHTSA has striven to do so. However, we note that relevant legal requirements are not limited to the BIL. For example, OMB's Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (2 CFR part 200) provide many requirements applicable to the grant program, both for States as award recipients and to NHTSA as the awarding agency. We have included several of those requirements throughout this regulation.

NHTSA believes that the triennial framework created by the BIL, with annual projects tied to longer-range planning based on performance targets and countermeasure strategies, is a valuable tool for States as they and NHTSA work to address the recent increase in traffic fatalities. It has never been more important for States to carry out strong, data-driven and performance-based highway safety programs. While NHTSA has worked to implement the statutory requirements and avoid adding unnecessary burden on States, we are committed to ensuring through our review and approval authority that State triennial HSPs and annual grant applications provide for data-driven and performance based highway safety programs. NHTSA will not approve a triennial HSP that has worsening performance targets or where countermeasure strategies are not sufficient to allow the State to meet its targets or are not supported by evidence that they are effective. NHTSA also will not approve an annual grant application where the projects provided are not sufficient to carry out the countermeasure strategy in an approved triennial HSP.

A. General (23 CFR 1300.10)

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

B. Triennial Highway Safety Plan (23 CFR 1300.11)

The triennial HSP documents the State's planning for a three-year period of the State's highway safety program that is data-driven in establishing performance targets and selecting the countermeasure strategies for programming funds to meet those performance targets. As many commenters noted,
15

the triennial HSP is intended by Congress to focus on program-level information. As discussed below, NHTSA proposes to require States to submit five components in the triennial HSP: (1) the highway safety planning process and problem identification; (2) public participation and engagement; (3) performance plan; (4) countermeasure strategy for programming funds; and (5) performance report.

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

1. Due Date (23 CFR 1300.11(a))

NHTSA incorporates the July 1 deadline set by the BIL. 23 U.S.C. 402(k)(2).

2. Highway Safety Planning Process and Problem Identification (23 CFR 1300.11(b)(1))

As with previous HSPs submitted annually, the triennial HSP must include the State's problem identification that will serve as the basis for setting performance targets, selecting countermeasure strategies and, later, developing projects. This ensures that the State's highway safety program is data-driven, consistent with 23 U.S.C. 402(b)(1)(B). NHTSA proposes to retain the requirements that the State describe the processes, data sources and information used in its highway safety planning and describe and analyze the State's overall highway safety problems through analysis of data (
i.e.,
problem identification, or problem ID). These requirements are substantively unchanged from the prior regulation except that NHTSA has added sociodemographic data as an example of a data source that the State may wish to consider in conducting problem ID. 23 CFR 1300.11(b)(1)(ii).

The WA TSC commented that NHTSA will need to change the way it evaluates States' problem ID in order to acknowledge factors that shape human behavior outside of raw crash data. NHTSA agrees that data other than crash data are valuable for State's problem ID, but does not agree that NHTSA has limited the types of data States may use to conduct problem ID so strictly. States are encouraged to utilize all data and information sources to conduct problem identification. The WA TSC also stated that raw crash data such as number of crashes and the outcomes of those crashes are outside the control of the SHSO. NHTSA disagrees with this premise. While States may not control all of the factors that contribute to raw crash numbers, such as population or increased VMT, State highway safety programs must be designed to account for those factors and adjust as necessary in order to address the myriad other factors that contribute to increases in traffic fatalities and injuries. As the WA TSC also noted, States can and should submit data in the triennial HSP that demonstrates that the State has conducted a careful analysis of traffic safety problems in the State and then has chosen strategies that are designed to address the specific behaviors that form the root cause of those problems.

NASEMSO and League of American Bicyclists recommended, respectively, that States be required to include consideration of post-crash care issues and perceptions of safety in bicycling and walking as part of their problem identification and, therefore, in their countermeasure strategies. NHTSA encourages States to consider the full constellation of State highway safety problems. However, in order to ensure that States have the needed flexibility to assess data to determine the problems within their borders, the agency declines to specify problem areas for consideration outside those mandated by Congress.

Drew Dawson recommended that NHTSA require States to provide the strategy laying out how the State will continue regular data assessments, including who will perform the analysis, what sources they will consult, and at what intervals. NHTSA does not believe this is necessary because States are already required to submit annual reports that assess their progress in meeting performance targets. 23 CFR 1300.35.

3. Public Participation and Engagement (23 CFR 1300.11(b)(2))

In BIL, Congress added a requirement that State highway safety programs result from meaningful public participation and engagement from affected communities, particularly those most significantly impacted by traffic crashes resulting in injuries and fatalities. 23 U.S.C. 402(b)(1)(B). Relatedly, Title VI of the Civil Rights

Act of 1964 (or Title VI) prohibits discrimination on the basis of race, color or national origin in any Federal program, including programs funded with Federal dollars. Title VI requires that all recipients of DOT financial assistance ensure that no person is excluded from participation in, denied the benefits of, or otherwise subjected to discrimination under any Federally-funded program or activity nondiscrimination. As implemented through the U.S. Department of Transportation Title VI Program Order (DOT Order 1000.12C), Title VI requires, among other things, that all recipients submit a Community Participation Plan. The purpose of the Community Participation Plan is to facilitate full compliance with Title VI by requiring meaningful public participation and engagement to ensure that applicants and recipients are adequately informed about how programs or activities will potentially impact affected communities, and to ensure that diverse views are heard and considered throughout all stages of the consultation, planning, and decision-making process. Because the public participation and engagement required by BIL and the Community Participation Plan required by Title VI have complementary goals, NHTSA proposes to structure grant requirements so that States can meet both requirements at the same time.

NHTSA proposes to incorporate these statutory requirements into the highway safety grant rule in three ways. First, NHTSA proposes a public participation and engagement section in the triennial HSP that would ensure States meet both requirements through a single submission. 23 CFR 1300.11(b)(2). NHTSA proposes to require that the triennial HSP include a description of the starting goals and a plan for integrating public engagement into the State's planning processes, a description of the activities conducted and the outcomes of those activities, and a plan for continuing public participation and engagement activities throughout the three years covered by the triennial HSP. Second, in order to ensure that the public participation and engagement that the State conducts for the triennial HSP plays a meaningful role in the choice and implementation of projects, not just at the planning stage, NHTSA also proposes to require States to describe in the annual report how the projects that were implemented were informed by the State's public participation and engagement. 23 CFR 1300.35(b)(1)(iii). Finally, in order to ensure that SHSOs have the necessary authority to carry out these requirements, NHTSA proposes to add a requirement that each State Highway Safety agency be authorized to foster meaningful public participation and engagement from affected communities. 23 CFR 1300.4(b)(3).

NHTSA received many comments about the BIL's requirement for meaningful public participation in the States' highway safety grant programs. Because they span multiple sections of the rule, NHTSA will address all engagement-related comments here. MN DPS and GHSA both stated their strong support for the requirement and were joined by Brandy Nannini, CA OTS, and NY GTSC in calling for flexibility and for NHTSA to take a long-term view for States' implementation of the requirement. The NSC signaled support for the requirement by advising NHTSA to encourage States to incorporate viewpoints of multiple stakeholders in identifying key safety needs and countermeasures. GHSA and NY GTSC noted that States are already including public participation as part of their highway safety programs, but that each State is doing so differently because they have different landscapes of communities and differing staffing and funding resources. GHSA and NSC both recommended that NHTSA allow States to carry out the required public participation directly, through partner subrecipients, or as part of a multidisciplinary effort run by the State DOT. The Transportation Equity Caucus recommended that States create models to transfer ownership of highway safety planning processes to communities and neighborhoods. Other commenters recommended that NHTSA require States to spend a specified amount of funds to carry out public participation and engagement in areas with the most need, where a certain percentage of fatalities or injuries take place, or in the communities where safety programs are intended to be implemented.
See
GHSA and anonymous commenter. NHTSA appreciates States' stated commitment to public participation and recognizes that public participation efforts are already underway in many States. With our proposal, we seek to implement these statutory requirements in a manner that reflects the importance of the requirement while recognizing variations between States by focusing on State's public participation planning and the impact of that participation on State programs and projects. In reviewing a State's public participation planning and outreach efforts in the triennial HSP, NHTSA will look to see if the State made a concerted effort to identify and reach out to impacted communities; however, we do not propose to require a specified funding level. A State must use the problem identification process to ensure that its most vulnerable, at-risk populations are identified and set performance targets and countermeasure strategies for programming funds accordingly. As long as a State is able to meet the requirements of the triennial HSP and annual report, it may facilitate public participation in the manner best suited to the needs of the State and its communities.

Commenters also provided input on how to measure State public participation efforts. GHSA cautioned that States cannot compel participation and asked NHTSA not to measure compliance by volume of comments or engagement. Other commenters suggested that States be required to report their public participation efforts, including: how they advertised and facilitated public engagement opportunities, what engagement took place, and the impact of that participation on the State's program.
See
League of American Bicyclists and NSC. NHTSA does not propose to require a specific form of public participation and engagement, nor to require specified outcomes. Instead, as described above, NHTSA proposes to require that the triennial HSP include a description of the starting goals and plan for integrating public engagement into the State's planning processes, a description of the activities conducted and the outcomes of those activities, and a plan for continuing public participation and engagement activities throughout the three years covered by the triennial HSP. While NHTSA does not propose to set a specified required outcome for a State's public participation activities, the agency expects that if a State does not achieve reasonable participation through the participation plan described in the triennial HSP, it will use that experience to inform its efforts for continuing public participation during the period covered by the annual HSPs and into the next triennial HSP. In addition, as described above, the agency proposes to require States to describe in the annual report how their public participation efforts informed the projects they implemented during the grant year.

NHTSA received many comments about the need to provide funding for BIL's increased public engagement requirements. GHSA noted that States would need additional funding in order to carry out the required public engagement efforts, while the National Safety Council recommended that States

be allowed to compensate partners or trusted community organizations to carry out public engagement work on their behalf. Many commenters also observed that States would likely achieve better and more diverse participation if they are able to compensate community members for their participation and attendance costs.
See
League of American Bicyclists, National Safety Council, Rebecca Sanders, and WA TSC. NHTSA acknowledges that increased efforts require more resources from State highway safety offices and that participation in public planning processes may present costs in time and money for participants. Public participation is fundamental to the workings of State governments, as it is for the Federal government. Therefore, we would expect that States have processes and procedures in place for conducting public outreach and participation. The specifics of whether and how NHTSA grant funds may be used to pay for these costs are highly fact specific and implicate many different Federal laws and regulations. In general, Federal grant funds may not be expended on activities required to qualify for the grant. State laws, also, may impact these sorts of expenditures. For example, Washington TSC noted in its comment that Washington State has recently passed laws to remove the historical prohibition against compensating the public for participation in State processes. It is likely that other States still have such prohibitions. Nothing in this proposed rule would dictate a specific determination about whether these sorts of costs may be an allowable use of NHTSA grant funds.

Commenters provided several suggestions for States about how to conduct their public participation efforts. NHTSA encourages States to consider any and all methods when planning their public engagement efforts. Suggestions included: ensuring that online tools are easy to use (Mari Lynch), publicizing the planning process and explaining how the public can provide input (Drew Dawson, League of American Bicyclists), presenting at schools or other community gathering locations (anonymous), widespread use of social media outlets and other communication channels (NASEMSO), regular opportunities for local information gathering (NSC), joining regional public health or EMS authority meetings (Drew Dawson), and elevating the voices of non-profits and representatives of marginalized groups in State committees and advisory groups (NASEMSO). NASEMSO and an anonymous commenter also recommended that States could increase community engagement through disseminating easy to understand and compelling safety data, including correlation of policies to data improvements.

NHTSA received many comments suggesting non-traditional partners that States should consider including in their planning processes. Recommendations spanned from national to State to local and community levels and are summarized below. NHTSA encourages States to consider all of these groups as they plan their public participation and engagement activities and as they implement their programs. NHTSA will work to share effective means of increasing participation with States.

The League of American Bicyclists and National Sheriffs' Association both recommended using national stakeholder organizations to advertise participation opportunities to their local members. The League of American Bicyclists recommended focusing on national organizations focused on equity and transportation safety. The National Sheriffs' Association specifically recommended using themselves and the International Association of Chiefs of Police to filter funding and messaging down to the local level. Drew Dawson recommended that States work with national-level 911 organizations.

State-level partners recommended by commenters included State agencies, such as transportation, public health, EMS, rural health, economic development, and State law enforcement agencies.
See
Drew Dawson, NASEMSO, NSC, Vision Zero Network. Drew Dawson also recommended coordinating with the State agencies responsible for implementing the U.S. Department of Housing and Urban Development's Community Development Block Grants.

The Vision Zero Network recommended that States prioritize local needs, and suggested that they work with local transportation, health, and policy organizations and community leaders. The League of American Bicyclists also emphasized the importance of working collaboratively with local community organizations, recommending that NHTSA require States to get letters of support for work undertaken within local communities. While NHTSA encourages collaboration with local community groups and supports the Share to Local requirement described in more detail later in this notice, it is beyond our authority to impose such a requirement. An anonymous commenter recommended that States work with local governments, which in turn should work with schools, community centers, churches, and non-profits within their jurisdiction in order to reach communities that may have less resources to interact directly with the State government. Drew Dawson identified local Public Safety Answering Points (PSAPs) and local or regional emergency medical organizations as helpful partners. Finally, the NSC recommended that States seek out existing local or regional task forces.

Many commenters recommended that States build relationships with affected communities beyond traditional partners, such as governmental entities and public figures, in order to gain the benefit of lived experiences.
See
League of American Bicyclists. Lorrie Walker and Rebecca Sanders both noted that building capacity within the communities that the highway safety program serves is necessary but that it may take some time to see results. The NSC and Rebecca Sanders both stressed the importance of collecting and considering community-based lived experience in addition to existing traffic safety data. Commenters identified a range of types of community members for States to reach out to, including parish nurses, childcare workers, parent-teacher associations, hospitals, physicians/surgeons, associations of attorneys.
See
Drew Dawson, Lorrie Walker. The Transportation Equity Caucus recommended that States work with community-based organizations, including groups focused on civil rights, racial and social equity, disability justice, mobility justice, public health, social services and other groups led by affected demographics. Specific community groups identified included communities of color, American Indians, teens, and rural communities. The National Safety Council suggested that States research active and trusted community organizations who are part of the safe system of transportation.

NHTSA supports and encourages States to reach out to and seek input from a full and diverse range of traffic safety stakeholders, both traditional and non-traditional. States should use all available resources to engage with new stakeholders and increase community engagement. NHTSA acknowledges that many States have already begun working to increase engagement and build community partnerships, and encourages them to continue those efforts. NHTSA will also work to share best practices and effective strategies to increase community engagement.

The BIL also added a related but separate requirement that States support data-driven traffic safety enforcement programs that foster effective community collaboration to increase public safety. 23 U.S.C. 402(b)(1)(E). This provision is essential to ensuring that highway safety programs carried out by law enforcement agencies are equitable and community-based. NHTSA proposes to implement this statutory provision by requiring States to discuss in the annual report the community collaboration efforts that are part of the States' evidence-based enforcement program. 23 CFR 1300.35(b)(2). GHSA recommended that States be allowed to count their efforts in meeting the separate requirement for meaningful public engagement in their triennial HSP in order to show compliance with the community collaboration requirement for enforcement programs. NHTSA disagrees. Congress created two separate and independent requirements: a requirement for a State to provide for a comprehensive, data-driven traffic safety program that results from meaningful public participation (23 U.S.C. 402(b)(1)(B); and a requirement that the State's highway safety program support data-driven traffic safety enforcement programs that foster effective community collaboration to increase public safety (23 U.S.C. 402(b)(1)(E)(i)). Collapsing the two requirements into the broader meaningful public engagement requirement would undermine Congress' intent that States address these as two separate requirements. As described above, States have broad latitude in how to provide meaningful public participation and engagement in the State traffic safety program. It may be possible, though difficult, that some efforts involved in the broader meaningful engagement may be specific enough to be part of the required community collaboration in enforcement programs. If a State is able to fulfill the requirements for both regulatory provisions with the same activities, it may do so; but NHTSA will evaluate the two statutory requirements separately.

4. Performance Plan (23 CFR 1300.11(b)(3)

States have been using a performance-based planning process in their highway safety plans for many years now. While some States were using performance measures on a voluntary basis already, Congress mandated the use of performance measures for all States in MAP-21 and continued the requirements under the FAST Act. While the BIL separated the planning process and the grant application into the triennial HSP and annual grant application, respectively, it maintained the reliance on performance measures as a fundamental component of State highway safety program planning in the triennial HSP. The BIL maintains the existing structure that requires States to provide documentation of the current safety levels for each performance measure, quantifiable performance targets for each performance measure, and a justification for each performance target. However, the BIL now specifies that performance targets must demonstrate constant or improved performance. 23 U.S.C. 402(d)(4)(A)(ii). Although the BIL makes no other changes to the statutory text specifically related to performance measures, the move from an annual to a triennial HSP presents some practical implications for performance measures as well. NHTSA received many comments on both changes, statutory and practical, and discusses them in more detail below.
16

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

As a preliminary matter, instead of the annual performance measures provided in the prior annual HSP, States now must provide performance measures that cover the three-year period covered by the triennial HSP. NHTSA proposes to allow States to set a single three-year target, with informal annual benchmarks provided in the triennial HSP against which they can assess progress in the annual report.

The BIL provides that States must set performance targets that demonstrate constant or improved performance and provide a justification for each performance target that explains why the target is appropriate and evidence-based. 23 U.S.C. 402(k)(4)(A)(ii) and (iii). This is consistent with the NRSS, which sets an ambitious long-term goal of reaching zero roadway fatalities by 2050. Transportation performance management focuses agencies on desired outcomes, outlines how to attain results, and clarifies necessary resources in the near-term. It allows for transparent and open discussions about desired outcomes and the direction an agency should take now. In an era of increasing fatalities, it is vital that performance targets offer realistic expectations that work toward the long-term goal of zero roadway fatalities and provide a greater understanding of how safety issues are being addressed. Several commenters
17

argued that requiring targets that show constant or improved performance is contrary to the requirement that targets be appropriate and evidence based. The WA TSC stated that States could set targets that demonstrate constant or improved performance, but not for measures that are related to outcomes that are outside the control of the State highway safety office. As an example, WA TSC noted that raw numbers of fatalities and injuries are impacted by changes in population and VMT. NHTSA disagrees that targets should focus only on variables within the control of State highway safety offices. Performance management is intended to refocus attention on national transportation goals, increase the accountability and transparency of the highway safety grant program, and improve program decisionmaking through performance-based planning and programming. Performance targets are inextricably tied to the countermeasure strategies for programming funds that States describe in their triennial HSPs. Targets should be developed to reflect the outcomes that States should expect, based on the evidence available,
after
implementing their planned programs. If, while setting its performance targets, a State determines that its countermeasure strategy for programming funds is not likely to yield constant or improved performance, the State should consider different countermeasure strategies or adjust funding levels.

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

Other commenters
18

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

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

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

AASHTO, CT HSO, GHSA and OR DOT expressed concern that the requirement to set performance measures that demonstrate constant or improved performance will cause States to have to set aggressive performance targets and that States will face penalties if they fail to meet aggressive targets. While Section 402 requires States to assess the progress made in achieving performance targets in the annual report (23 U.S.C. 402(l)(2)), and NHTSA is required to publicly release an evaluation of State achievement of performance targets (23 U.S.C. 402(n)(1)), there are no monetary or programmatic penalties for failure to achieve a performance target in the highway safety grant program. The WA TSC commented that States that set a goal of zero traffic deaths will not be punished with additional administrative burdens. The long-term goal of zero traffic deaths is central to the NRSS and SSA. NHTSA acknowledges and appreciates that many states would like to plan and set targets aimed at that goal. We therefore encourage states to thoughtfully consider targets for their triennial HSPs that keep this long-term goal in mind while using a data-based approach based on achievable targets in the short-term. Finally, AASHTO points out that States may face monetary consequences under FHWA's Highway Safety Improvement Program (HSIP) for failure to achieve a common performance measure. However, as a point of clarification, States do not face a monetary penalty under the FHWA's HSIP; they do, however, lose flexibility to redirect safety funds to other programs. NHTSA does not have discretion to undermine the statutory requirement that all performance measures show constant or improved performance.

Several commenters
19

expressed concern that the new triennial HSP framework created by the BIL will create inconsistencies with the common measures that States also report annually to FHWA for the HSIP.
20

GHSA and the WI BOTS Patrol both recommended that NHTSA require that the common measures be reported annually in the annual application, rather than in the triennial HSP, to maintain alignment with the HSIP. The League of American Bicyclists recommended that NHTSA work with States to ensure the HSP is consistent with the HSIP, including consistent performance measures and countermeasure strategies. The BIL provides that performance measures are submitted with the triennial HSP, so NHTSA does not have discretion to change that. 23 U.S.C. 402(k)(4). However, the BIL also provides that States may submit updates, as necessary, to the triennial HSP in the annual grant application. NHTSA believes it would undermine Congress' intent in providing for more long-term planning and performance management under the highway safety grant program to allow States to frequently adjust performance measures that are intended to be part of a triennial highway safety planning process. Rather, States should adjust their countermeasure strategies for programming funds if they determine that they are not on track to meet their performance measures. However, the agency recognizes the difficulty for States in having measures that are subject to the disparate planning timeframes of the triennial HSP and annual HSIP. Therefore, we propose to allow States to amend the common measures in the annual grant application, but not the other measures. 1300.12(b)(1)(ii). AASHTO stated that the regulation should more clearly vest target establishment authority in the States, arguing that it is inconsistent to require NHTSA approval for performance targets when 23 U.S.C. 150(d)(1) provides States with authority to establish targets for the HSIP without FHWA approval. FHWA previously addressed this comment in its final rule for the National Performance Management Measures: Highway Safety Improvement Program, which set out the parameters of the common performance measures.
21

As the substance of the relevant statutes has not changed, NHTSA incorporates the response FHWA provided at that time. NHTSA
emphasizes
that the statute requires States to coordinate their highway safety plan with the HSIP and that States certify their compliance with this requirement in Appendix A.
See
23 U.S.C. 402(b)(F)(vi) and Appendix A. Further, NHTSA does not have discretion to override the statutory requirement that NHTSA approve or disapprove triennial HSPs, including the performance measures contained therein.
See
23 U.S.C. 402(k)(6).

19
AASHTO, GHSA, OR DOT, and WI BOTS Patrol.

20
Common performance measures are set out in 23 CFR 490.209(1) and 23 CFR 1300.11.

21
81 FR 13882, 13901 (Mar. 15, 2016).

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

provide a fuller picture of current levels. Where a target, such as the common fatality measures, requires the use of FARS data, States must use the most currently available FARS data in the annual reports. Similarly, States may supplement their analysis with non-FARS data, but must at a minimum use the most currently available FARS data. Where targets necessarily are based on other data sources, States must use the most currently available data for that data source, but may supplement with additional data.

Several commenters provided feedback on other aspects of performance measure data. WA TSC noted that since FARS data are provided by NHTSA, States should not be required to report FARS data back to NHTSA. However, the statute and the regulation require not just data reporting, but analysis of the data.
See
23 U.S.C. 402(l)(2)(A) and 23 CFR 1300.35(a)(1). A State would be unable to assess its progress in meeting FARS-based targets without reporting the FARS data. NASEMSO recommended that States be required to provide historical data covering a 3-to-5-year period prior to the period covered by the triennial HSP. While NHTSA does not explicitly require States to provide baseline data for performance measures, as a general matter, baseline data will be a key part of State's performance target setting and will usually be provided in the triennial HSP as part of the justification for the target set by the State. WI BOTS recommended that NHTSA allow States to set targets based on an average of the prior 4 years of FARS data plus State data in order to set a target percentage as opposed to a hard number. The comment did not provide enough details for NHTSA to be certain which target the commenter is referring to. In general, with the exception of the required common and minimum performance measures, States have flexibility to determine the appropriate performance measure needed for their programs. Safe Kids Worldwide suggested that States look to tangible events and metrics to measure performance, including FARS data. Drew Dawson and NASEMSO recommended that States consider use of NEMSIS and trauma registry data in performance measures. In order to ensure consistency and to facilitate a nationwide view of progress in traffic safety, the common and minimum performance measures specify the type of data source that States should use. However, for the other performance measures that States select, based on problem identification, States may use any available data source that is appropriate, including NEMSIS and trauma registry data.

Many commenters
22

requested that NHTSA and GHSA work together to update the minimum performance measures that were developed in 2008
23

in accordance with 23 U.S.C. 402(k)(5). In contrast, the 5-State DOTs stated that they do not believe any new performance measures are required. Commenters
24

also provided specific advice and recommendations for measures they believe should be considered, deleted, or amended. The current action does not propose to revise the minimum measures; however, NHTSA agrees with the majority of commenters who believe that the minimum performance measures need to be reconsidered and updated. That said, NHTSA does not believe that it is feasible to undertake the required collaboration to develop new performance measures in time for States to use them in their first triennial HSP. In addition, NHTSA believes that being able to use familiar performance measures will reduce the burden on States as they complete their first triennial HSP cycle under BIL. NHTSA intends to convene meetings with stakeholders and to collaborate with GHSA to update the minimum performance measures well in advance of the FY 2027 triennial HSP submission date. NHTSA will bring all of the comments received under this rulemaking into that effort and will seek further input from these and other groups at that time. As we did previously, NHTSA commits to publish the proposed minimum performance measures in the
Federal Register
for public inspection and comment. For the purposes of the FY 24 triennial HSP, NHTSA would like to note that States are not limited to only the minimum performance measures. States are strongly encouraged to develop additional measures, consistent with 23 CFR 1300.11(b)(3)(iii), for problems identified by the State that are not covered by existing minimum performance measures. Those measures may cover issue areas such as equity, injury data, SHSO output measures, and more.

22
CA OTS, GHSA, MN DPS, NASEMSO, NY GTSC, and WA TSC.

23
“Traffic Safety Performance Measures for States and Federal Agencies” (DOT HS 811 025) (Aug. 2008).

24
Brian McGuire, Drew Dawson, IAEMSC, League of American Bicyclists, NASEMSO, NSC, NY GTSC, Rebecca Sanders, Safe Kids Worldwide, Safe Routes Partnership, TEC, Vision Zero Network, and WA TESC.

Finally, OR DOT recommended that NHTSA reconcile its definition for “vulnerable road user” with the definition used by FHWA. NHTSA does not provide, nor does it propose, a definition for “vulnerable road user” in the regulation. As such, there is no contradiction with any definitions provided by FHWA. For purposes of the highway safety grant program, States have flexibility to define “vulnerable road users” based on the highway safety challenges identified by their problem ID.

5. Countermeasure Strategy for Programming Funds (23 CFR 1300.11(b)(4))

The BIL requires each State to submit, as part of the triennial HSP, a countermeasure strategy for programming funds for projects that will allow the State to meet the performance targets set in the triennial HSP, including data and analysis supporting the effectiveness of the proposed countermeasures and a description of the Federal funds that the State plans to use to carry out the strategy. 23 U.S.C. 402(k)(4)(B-D). NHTSA proposes to incorporate this requirement into the regulation by requiring States to provide, for each countermeasure strategy: identification of the problem ID that the countermeasure strategy addresses and a description of the link between the problem ID and the countermeasure strategy; a list of the countermeasures that the State will implement as part of the countermeasure strategy; identification of the performance targets the countermeasure strategy will address with a description of the link between the countermeasure strategy and the target; a description of the Federal funds the State plans to use; a description of the considerations the State will use to determine what projects to fund to implement the countermeasure strategy; and a description of the manner in which the countermeasure strategy was informed by the uniform guidelines issued by NHTSA in accordance with 23 U.S.C. 402(a)(2).

GHSA recommended that NHTSA amend the definition of countermeasure strategy in order to clarify that it includes innovative countermeasures, and to explain how States can justify the use of innovative countermeasures. While NHTSA has amended the definition of countermeasure strategy for programming funds (see definition section for explanation), that definition does not incorporate the considerations GHSA recommends. Instead, NHTSA proposes to make these suggested clarifications directly in the regulatory

text of this requirement. As a preliminary matter, NHTSA would like to clarify the distinction between a countermeasure and a countermeasure strategy for programming funds, which consists of a combination of countermeasures along with information on how the State plans to implement those countermeasures, such as funding amounts, subrecipient types, locations, etc. Specifically, NHTSA proposes to require that, for each countermeasure that a State plans to implement as part of a countermeasure strategy, the State provide data and analysis supporting the effectiveness of the countermeasure. NSC recommended that NHTSA require States to provide justification for use of established countermeasures in order to reflect evolving knowledge. However, NHTSA believes that requiring States to provide independent justification for all countermeasures, even ones that have been proven over time, is burdensome without any added gain. Therefore, the agency proposes that for countermeasures that are rated 3 or more stars in
Countermeasures That Work,
the State need only provide a citation to the countermeasure in the most recent edition of that document. For all other countermeasures including innovative countermeasures, States must provide justification supporting the potential of the countermeasure strategy, which may include research, evaluation, or substantive anecdotal evidence.
See
23 CFR 1300.11(b)(4)(ii). The WA TSC suggests that NHTSA accept the SSA principles as a justification for choosing countermeasure strategies in the triennial HSP. While NHTSA agrees that the SSA principles are great guiding principles for a State to use in selecting countermeasures, NHTSA notes that principles do not qualify as data and the data analysis required to justify the use of a countermeasure.

GHSA noted that the BIL removed the previous requirement that States have a traffic safety enforcement program (TESP) (previously 23 U.S.C. 402(b)(1)(E)), and requested that NHTSA remove the related regulatory requirement that the HSP include a specific TSEP section (current 23 CFR 1300.11(d)(5)). Instead, GHSA recommended that States be required only to provide an assurance in Appendix A that the triennial HSP provides for sustained enforcement, and to provide any required information for Section 405 grant applications. NHTSA agrees that it is not necessary to require a dedicated section of the triennial HSP to cover the TSEP. However, we disagree that an assurance is sufficient for States to meet the requirement for States to have a traffic safety enforcement program. The BIL requires that a State program support data-driven traffic safety enforcement programs that foster effective community collaboration to increase public safety. 23 U.S.C. 402(b)(1)(E). NHTSA believes that this statutory requirement represents a step forward in ensuring equitable outcomes in traffic enforcement. While NHTSA agrees that a separate section of the triennial HSP is not required to satisfy this requirement, the agency will not approve a triennial HSP that does not include such a traffic safety enforcement program as part of its countermeasure strategies. The flexibility allowed by removing the separate section requirement will allow States to structure countermeasure strategies that rely on enforcement as only one part of a multi-countermeasure strategy. In recognition that community collaboration efforts may depend on the specific enforcement projects that States implement, NHTSA proposes to require States to discuss the community collaboration efforts that were conducted as part of their evidence-based enforcement programs in the annual report, rather than in the triennial HSP.
See also
the discussion about the annual report, below.

GHSA also pointed out that the BIL removed the requirement to describe non-Federal funds that the State intends to use to carry out countermeasure strategies in the triennial HSP. NHTSA has drafted proposed text accordingly.

WA TSC recommended that NHTSA adopt a model of behavior change for State countermeasure strategies, by requiring States to create a theory of change for each countermeasure submitted, including a clear statement of assumptions and a description of how the chosen strategy will influence public behavior. The League of American Bicyclists recommended that NHTSA use the triennial HSP to implement the Safe Systems Approach by promoting the use of the rubric presented by GHSA in its report titled “Putting the Pieces Together: Addressing the Role of Behavioral Safety in the Safe System Approach.” While NHTSA does not endorse any specific strategies over others, the agency supports States thinking outside of the box and encourages States to work together to identify opportunities to learn from each other and share new or innovative ideas. NHTSA will also work with states to identify strategies that incorporate the Safe Systems Approach and to facilitate the sharing of innovative strategies among states.

6. Performance Report (23 CFR 1300.11(b)(5))

The BIL requires that the triennial HSP include a report on the State's success in meeting its safety goals and performance targets set forth in the most recently submitted highway safety plan. NHTSA has incorporated this statutory requirement into the proposed regulatory text, adding that the report must contain the level of detail provided in the annual report.
See
23 CFR 1300.11(b)(5). The agency's intent in doing so is to foster connection between the triennial HSP and the annual reports. We also believe that this will reduce burdens on States by enabling them to import relevant analysis from the annual reports into the triennial HSP and vice versa. So, for example, the FY27 triennial HSP (due July 1, 2026) would be able to incorporate the assessment from the FY24 and FY25 annual reports that were submitted in January 2025 and 2026, respectively, and would include a partial assessment for FY26. NHTSA recognizes that the triennial HSP is due prior to the end of the last fiscal year covered by the prior triennial HSP and will therefore not expect the assessment for the final fiscal year to cover the entire year. The State could then use the partial assessment provided in the FY27 HSP as a starting point to develop its assessment in the FY26 annual report (due January 2027). For the FY24 triennial HSP, NHTSA only expects analysis of the State's progress towards meeting the targets set in the FY23 HSP.

7. Review and Approval Procedures (23 CFR 1300.11(c))

The BIL provides that NHTSA must review and approve or disapprove a State's triennial HSP within no more than 60 days. It further provides that NHTSA may request a State to provide additional information needed for review of the triennial HSP and may extend the deadline for approval by no more than an additional 90 days as a result. The BIL further sets out a requirement that States respond to any requests for additional information within 7 business days of receiving the request. NHTSA proposes to adopt this language in the regulation at 23 CFR 1300.11(c). This is consistent with GHSA's request that NHTSA do so.

The BIL retained the previous statutory approval and disapproval requirements. NHTSA proposes to retain the regulatory provisions incorporating those requirements with only one amendment. In order to meet the approval deadline, NHTSA proposes to require that where NHTSA

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

C. Annual Grant Application (23 CFR 1300.12)

The annual grant application provides project level information about the State's highway safety program and demonstrates alignment with the most recent triennial HSP. NHTSA proposes to require the following 4 components be provided in the State's annual grant application: (1) updates to the triennial HSP (for the second and third year annual grant applications); (2) project and subrecipient information; (3) grant application for section 405 and 1906 grant programs; and (4) certifications and assurances.

1. Due Date (23 CFR 1300.12(a))

The BIL allows NHTSA to set the due date for the annual grant application, subject to the requirement that the deadline must enable NHTSA to provide the grants early in the fiscal year.
See
23 U.S.C. 402(l)(1)(B) and 23 U.S.C. 406(d)(2). Additionally, the statute provides that NHTSA must review and approve or disapprove annual grant applications within 60 days. 23 U.S.C. 402(l)(1)(D). GHSA recommended that the due date for the annual grant application be different than the July 1 deadline for the triennial HSP, noting that many States do not have project information by July 1. GHSA recommended that NHTSA set a due date of August 31 in order to align with the due date for HSIP annual reports. NHTSA agrees that there should be separate deadlines for the annual grant application and the triennial HSP, in part to lessen the burden on States during the years when both submissions are required. However, NHTSA would not be able to complete approval or disapproval of applications submitted on August 31 until October 30, which does not allow NHTSA to meet the statutory requirement to provide grant funds as early in the fiscal year as possible. NHTSA therefore proposes a deadline of August 1 for States' annual grant applications. 23 CFR 1300.12(a)

2. Updates to Triennial HSP (23 CFR 1300.12(b)(1))

The BIL provides that States must include, in their annual grant applications, any updates necessary to any analysis in the State's triennial HSP. 23 U.S.C. 402(l)(1)(C)(i). Separately, the BIL requires States to include a description of the means by which the strategy of the State to use grant funds was adjusted and informed by the previous annual report. 23 U.S.C. 402(l)(1)(C)(iii). Because the countermeasure strategy referred to here is part of the triennial HSP, NHTSA proposes to group these two statutory requirements into one requirement. Accordingly, NHTSA proposes that, at a minimum, States must provide a description of the means by which the strategy for programming funds was adjusted and informed by the most recent annual report, or an explanation of why the State made no adjustments. Where a State determined, in its annual report, that it was on track to meet all performance targets, it need merely briefly state that fact. However, in order to give weight to Congress' intent, NHTSA will require any State that is not on track to meet all performance targets to either explain how it will adjust the strategy for programming funds or explain why it is not doing so.

In addition, NHTSA proposes to specify allowable updates related to performance measures. As described more fully in the performance measures section, above, as a general rule, performance measures must be set in the triennial HSP and remain the same throughout the three years covered by the HSP. States can then adjust their countermeasure strategy for programming funds in order to ensure that they remain on track to meet those performance measures. However, NHTSA recognizes that in some cases, a State may identify new highway safety problems during the triennial cycle. In that case, a State may wish to update its analysis to provide new problem ID, with a new performance target and corresponding countermeasure strategy for programming funds. The need for new (or annual) performance targets may additionally arise as a result of the State's application for a motorcyclist safety grant under Section 1300.25. For these reasons, NHTSA proposes to allow States to add new performance measures. Additionally, as described above, NHTSA recognizes the difficulty for States in setting common performance measures with the three year performance measures required for NHTSA's triennial HSP and the annual performance measures required for FHWA's HSIP. As a result, NHTSA proposes to allow States to amend common performance measures. States may not amend any other performance measures, but instead, should consider adjustments to countermeasure strategies for programming funds to meet the targets set.

GHSA stated that the statute provides that the State, not NHTSA, determines what additional analysis might be necessary. NHTSA disagrees with GHSA's interpretation. The statute is silent as to who determines what additional analysis is necessary. Further, the statute requires NHTSA to approve or disapprove of a State's annual grant application in part on the basis of whether it demonstrates alignment with the approved triennial HSP. 23 U.S.C. 402(l)(1)(A)(i). NHTSA will not approve an annual grant application that is inconsistent with the approved triennial HSP.

3. Project and Subrecipient Information (23 CFR 1300.12(b)(2))

The BIL requires States to submit, as part of their annual grant application, identification of each project and subrecipient to be funded by the State using grants during the fiscal year covered by the application. The statute further provides that States may submit information for additional projects throughout the grant year as that information becomes available.
See
23 U.S.C. 402(l)(C)(ii).

GHSA and WI BOTS Patrol both requested that NHTSA commit to not performing granular review of projects on the merits. GHSA stated that States have expressed frustration in the past with NHTSA approving programs or planned activities in the HSP and then later disapproving projects after the project agreement has been signed. They argued that States should be able to rely on NHTSA's regulatory decisions. GHSA argued that NHTSA should use the project level information provided in the annual grant application for financial management, transparency, or program analysis, not for administratively burdensome preapproval. GHSA further stated that, rather than a front-end burden to preapprove State projects, NHTSA should allow States more flexibility to implement compliant activities and that States should face consequences for non-compliance. When approving the annual grant application, NHTSA is looking to see whether the State's submitted projects are sufficient to reasonably carry out the countermeasure strategies in the State's triennial HSP, as well as checking for high-level regulatory compliance issues such as proper funding source. NHTSA review and approval of annual grant applications, similar to our current approval of annual HSPs, does not equate to approval of all projects or activities listed in the application. GHSA is correct in stating that NHTSA approval of the annual grant application should not and does not conflate with specific approval of projects. States have an independent obligation to expend

grant funds in accordance with Federal grant requirements. And, because NHTSA does not review and approve all projects, NHTSA may find during grant program oversight that a project that is listed in an approved annual grant application is not allowable in full or in part. That said, if a reviewer notes an obviously unallowable or questionable project, the reviewer may raise that issue to the State at that time in order to avoid the State continuing with a project that may later be disallowed.

NHTSA proposes to require States to submit the following information in order to satisfy the statutory requirement to identify projects and subrecipients: project name and description, project agreement number, subrecipient(s), Federal funding source(s), amount of Federal funds, eligible use of funds, identification of P & A costs, identification of costs subject to Section 1300.41(b), and the countermeasure strategy that the project supports. 23 CFR 1300.12(2) These proposed requirements are intended to ensure that NHTSA is able to understand whether the identified projects are sufficient for the State to carry out the countermeasure strategies in the triennial HSP, to identify projects against later submitted vouchers, and to meet statutory transparency requirements. GHSA recommended that NHTSA be guided, and limited by, the project information required for project agreements in the OMB Uniform Administrative Requirements at 2 CFR 200.332(a)(1). GHSA specifically recommended a list of signed project agreements with subrecipient identification, program area classification, project agreement number, amount of federal funds by funding source, and eligible use of funds. NHTSA agrees that the Uniform Administrative Requirements are a valuable source for identifying useful information and proposes to include all of the information suggested by GHSA. The WA TSC recommended providing a link to the countermeasure strategy that the project supports. NHTSA agrees and proposes to include that in the proposed regulation.

The WA TSC also advised NHTSA not to use zip codes as a measure for identifying high priority areas. The WA TSC stated that it would be challenging to account for zip codes for efforts conducted by statewide entities. NHTSA believes that zip codes and other identifying location information are a valuable part of a project description and help ensure that States are implementing programs in the areas that are identified by the State's problem ID. However, NHTSA recognizes that there are many grant-funded activities that are Statewide or, like data system projects, have no physical location. Therefore, NHTSA proposes to include zip codes as an example of information that may be provided as part of a project description, but does not require it for all projects.
See
23 CFR 1300.12(b)(2)(i).

Brian Maguire, et. al recommended that NHTSA require States to provide the dollar amount of funding dedicated to each of the five objectives of the NRSS, particularly post-crash care. NHTSA believes that such a parsing would be too burde

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2022-18995. Public record. Not legal advice.