Uniform Procedures for State Highway Safety Grant Programs

Federal RegisterFeb 6, 2023

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

23 CFR Part 1300

[Docket No. NHTSA-2022-0036]

RIN 2127-AM45

Uniform Procedures for State Highway Safety Grant Programs

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

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

DATES:

This final rule is effective on March 8, 2023.

FOR FURTHER INFORMATION CONTACT:

For program issues:

Barbara Sauers, Associate Administrator, Regional Operations and Program Delivery, National Highway Traffic Safety Administration; Telephone number: (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. Summary of the Notice of Proposed Rulemaking

III. Public Comments on the Notice of Proposed Rulemaking

IV. General Provisions

V. Triennial Highway Safety Plan and Annual Grant Application

VI. National Priority Safety Program and Racial Profiling Data Collection

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

VIII. Regulatory Analyses and Notices

I. Background

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

Estimates for the first three quarters of 2022 are bleak: an estimated 31,785 people died in motor vehicle crashes during this period.

Behind each of these numbers is a life tragically lost, and family and friends left behind. The crisis is both urgent and preventable. The third quarter of 2022 shows promise, representing the second straight quarterly decline in fatalities after seven consecutive quarters of year-to-year increases. We need to build on the declining trends and work to ensure safer roads for everyone.

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.

National Center for Statistics and Analysis. (2022, December). Early estimates of motor vehicle traffic fatalities for the first 9 months (January-September) of 2022 (Crash•Stats Brief Statistical Summary. Report No. DOT HS 813 406). National Highway Traffic Safety Administration.

Available at https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813406.

NHTSA is redoubling our safety efforts and is asking our State and local partners to join us in this critical pursuit. The programs to be implemented under today's rulemaking are an important part of that effort. Now, more than ever, we all must seize the opportunity to deliver accountable, efficient, and data-driven highway safety programs to save lives and reverse the deadly trend on our Nation's roads. The highway safety grants implemented in today's action fit within a broader framework involving many stakeholders working synergistically across many programs. We encourage States to view their triennial Highway Safety Plans in the context of the National Roadway Safety Strategy and the Safe System Approach discussed later in this document in response to comments.

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

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

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

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

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

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

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

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

• Motorcyclist Safety Grants—Added an eligibility criterion (helmet law);

• State Graduated Driver Licensing Incentive Grants—Discontinued grant;

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

• Preventing Roadside Deaths Grants—Established new grant; and

• Driver and Officer Safety Education Grants—Established new grant.

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

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

II. Summary of the Notice of Proposed Rulemaking

On April 21, 2022, the agency published a notification of public meetings and request for comments (RFC). 87 FR 23780. NHTSA held virtual public meetings on May 2, May 4, and May 5, 2022, and accepted written comments submitted through May 23, 2022. Twenty-three people provided oral comments at the public meetings, and 55 written comments were submitted to the docket at

regulations.gov.

NHTSA also added three letters to the docket that were sent directly to the agency prior to the RFC.

On September 14, 2022, NHTSA published a notice of proposed rulemaking (NPRM), proposing regulatory language to implement the BIL provisions and addressing comments received at the public meetings and in response to the RFC. 87 FR 56756. It set forth the application, approval, and administrative requirements for all 23 U.S.C. Chapter 4 grants and the Section 1906 grants. Section 402, as amended by the BIL, continues to require each State to have an approved highway safety program designed to reduce traffic crashes and the resulting deaths, injuries, and property damage. Section 402 sets forth minimum requirements with which each State's highway safety program must comply.

Under new procedures proposed in the NPRM, each State would submit for NHTSA approval a triennial Highway Safety Plan (“triennial HSP”) that identifies highway safety problems, describes the State's public participation and engagement efforts, establishes performance measures and targets, describes the State's countermeasure strategies for programming funds to achieve its performance targets, and reports on the State's progress in achieving the targets set in the prior HSP. 23 U.S.C. 402(k). Each State would also submit for NHTSA approval an annual grant application that provides any necessary updates to the triennial HSP, identifies all projects and subrecipients to be funded by the State with highway safety grant funds during the fiscal year, describes how the State's strategy to use grant funds was adjusted based on the State's latest annual report, and includes an application for additional grants available under Chapter 4. 23 U.S.C. 402(l). The agency proposed to reorganize and rewrite subpart B of part 1300 and 23 CFR 1300.35 to implement these changes.

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

Finally, the NPRM proposed limited changes to administrative provisions to accommodate the triennial framework and address changes made by revisions to the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 CFR part 200.

III. Public Comments on the Notice of Proposed Rulemaking

In response to the NPRM, the following submitted comments to the public docket on

www.regulations.gov:

American Association of State Highway and Transportation Officials (AASHTO); American Association of Motor Vehicle Administrators (AAMVA); Coalition of Ignition Interlock Manufacturers (CIIM); Connecticut Highway Safety Office (CT HSO); Delaware Office of Highway Safety (DE OHS); Foundation for Advancing Alcohol Responsibility (

Responsibility.org

); Governor's Highway Safety Association (GHSA); Haas Alert; League of American Bicyclists (League); Maine Bureau of Highway Safety (MeBHS); Massachusetts Office of Grants and Research, Highway Safety Division (MA OGR); Missouri Department of Transportation (MoDOT); Mitchell Berger; Minnesota Department of Public Safety (MN DPS); National Association of State 911 Administrators (NASNA); National EMS Management Association (NEMSMA); Nevada Office of Traffic Safety (NV OTS); Pamela Bertone; Tennessee Highway Safety Office (TN HSO); Wyoming Department of Health, Office of Emergency Medical Services (WY OEMS); joint submission by the Departments of Transportation of Idaho, Montana, North Dakota, South Dakota and Wyoming (5-State DOTs); and two anonymous commenters. Eight of these commenters (5-State DOTs; AASHTO; CT HSO; DE OHS; NV OTS; MeBHS; MoDOT; and MN DPS) expressed general support for GHSA's comments.

In this preamble, NHTSA addresses all comments and identifies any changes made to the NPRM's regulatory text.

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.

Two commenters submitted comments that are outside the scope of this rulemaking; these comments covered infrastructure and road design, and a ban on all-terrain vehicles. As these comments are outside the scope of NHTSA's Section 402 and 405 grant programs, they are beyond the scope of this rulemaking and will not be addressed further in this preamble.

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

A. Rulemaking Process

Multiple commenters

expressed appreciation for NHTSA's shared commitment to completing this rulemaking in an expedient manner. They explained that States need time to integrate the new requirements into their highway safety planning for FY24.

AAMVA, AASHTO, GHSA, MN DPS, and TN HSO.

Several commenters

repeated their comments from the RFC, broadly reiterating that NHTSA should ensure fidelity to the spirit and letter of Congressional directives, minimize the administrative burden on States, and provide greater flexibility in the use of funds. They explained that unnecessary administrative burdens shift States' focus away from program delivery and discourage subrecipient participation. The CT HSO further argued that burdens imposed by the proposed regulation would deprive governors of their prerogative to set roadway safety policy within their States. HAAS Alert noted that small towns are frequently

underserved when it comes to receiving transportation funding and encouraged NHTSA to consider the administrative burdens on those areas when determining grant requirements.

AASHTO, AAMVA, DE OHS, GHSA, MN DPS, MoDOT, and 5-State DOTs.

It is not our intention to impose unnecessary administrative burdens on States or their subrecipients, and we have amended and streamlined several areas of this rulemaking in response to specific comments received. The agency's task is to promulgate a regulation that will implement the statutory requirements for the highway safety grant program. We address specific comments about burden in the sections that follow but note that, as a Federal awarding agency, we have a responsibility to ensure that Federal grant funds are spent for the purposes Congress specifies and consistent with all legal requirements, including the Section 402 and 405 statutory text and other Federal grant laws and regulations. Our intent is to impose reasonable administrative requirements to ensure that recipients of Federal funds adhere to applicable legal requirements that are consistent with our responsibilities as a steward of taxpayer funds.

Finally, GHSA and the MoDOT requested that NHTSA provide a red-lined or track changes copy of the regulatory text so that States can more easily see the changes made by this rule. NHTSA appreciates the importance of ensuring that States are well-versed on the changes to the rule and that they understand the impacts of those changes and their implications for applications and program management. Ensuring that understanding is, in fact, the precise purpose and goal of this preamble and of the full exposition of the regulatory text that follows. We encourage all States to embrace this document in its entirety. States are responsible for complying with the entire rule—not just with the specific changes made in this rulemaking. In our view, it is important and instructive to read all of the rule anew, as a red-lined version would underemphasize important context necessary to assist in planning and program implementation. For example, in some cases, regulatory text may remain the same but have a different meaning or impact within the new triennial framework or due to other BIL-related nuances. NHTSA is committed to providing States with ongoing training, guidance and technical assistance as they work to implement the changes made in the BIL, as carried out through this regulation.

B. Guidance

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

C. Equity

NHTSA received comments stressing the importance of equity in traffic safety programs. Given the importance of the topic and thoughtfulness of the comments, here we summarize and briefly respond to all comments we received relating to equity.

The League of American Bicyclists expressed appreciation for NHTSA's commitment to and discussions about equity and looked forward to seeing the continued results of these efforts. The League of American Bicyclists also requested that NHTSA provide definitions and examples of “centering equity” and “equitable enforcement.” NHTSA strongly supports the policies and commitment to equity laid out in Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities Through Federal Government, and is committed to fulfilling our responsibilities under the Order and to following its principles. The highway safety grant program plays an important role; the meaningful public participation and engagement requirements implemented in this rulemaking form a critical part of State planning to help ensure that equity is centered in the grant program. Under BIL, States are expected to engage affected and potentially affected communities during their triennial HSP planning process and throughout the life of the grant, including through particular emphasis on underserved communities and communities over-represented in the data. NHTSA will offer technical assistance to States on how to meaningfully engage communities to inform traffic safety programs that promote safe and accessible roadways, all while reducing transportation-related disparities, adverse community impacts, and health effects through their traffic safety programs.

The CT HSO requested that NHTSA allow States to use alternative methods to fund equity partnerships that do not involve reimbursement-based funding arrangements, noting that many potential partners are unable to participate in the highway safety grant program because they do not have sufficient funds available to cover costs prior to reimbursement. NHTSA encourages States to think creatively about ways to support the participation of non-traditional traffic safety partners, including equity partnerships, consistent with Federal grant rules. Federal grant rules allow for advance payments in some situations. NHTSA commits to issuing guidance on advance and reimbursement-based payments in State highway safety grant programs. In addition, as part of our goal to support the inclusion of equity in the highway safety program, NHTSA will work closely with States and national organizations to brainstorm new and creative ways to encourage the involvement of new and diverse groups in the highway safety grant program.

The League of American Bicyclists reiterated its prior comment to the RFC, expressing concern about NHTSA's continued support for the Data-Driven Approaches to Crime and Traffic Safety (DDACTS) program. It noted that DDACTS combines traffic safety and other law enforcement data, making traffic-related activities difficult to separate from ineligible activities because of difficulties in determining whether a traffic stop is traffic-related or merely pretextual. As NHTSA explained in the NPRM, DDACTS is a law enforcement operational model that integrates location-based traffic-crash and crime data to determine the most effective methods for deploying law enforcement and other resources. It focuses on community collaboration to reinforce the role that partnerships play in improving the quality of life in communities and encourages law enforcement agencies to use effective engagement and new strategies. NHTSA continuously reviews the content of DDACTS training and works to ensure that the training focuses on community engagement and the appropriate application of fair and equitable traffic enforcement strategies. NHTSA will

continue to evaluate DDACTS to ensure that it promotes only enforcement that is implemented fairly and equitably.

NHTSA also notes that DDACTS is not part of NHTSA's highway safety grant program, and not all DDACTS-related activities are eligible uses of NHTSA's grant funds. NHTSA's grant funds may only be used for traffic safety activities; any other law enforcement purpose is not eligible. Further, as we stated previously, use of NHTSA grant funds for discriminatory practices, including those associated with pretextual policing, violates Federal civil rights laws, and NHTSA will seek repayment of any grant funds that are found to be used for such purposes and refer any discriminatory incidents to the Department of Justice.

Finally, the League of American Bicyclists thanked NHTSA for responding to its prior comments on the discriminatory outcomes of countermeasures included in NHTSA's

Countermeasures That Work

guide.

It clarified that it was not accusing NHTSA or States of using NHTSA grant funds for discriminatory enforcement, but rather requesting that NHTSA discuss potential or observed disparities in impact from enforcement or other countermeasures within the

Countermeasures That Work.

As an example, it noted that the

Countermeasures That Work

designates mandatory bicycle helmet laws as highly effective and low cost while designating bicycle helmet use promotions as less effective and high cost, and argued that these disparate designations fail to account for several costs and impacts associated with helmet use laws, such as the related to education and enforcement, and the impacts of potentially discouraging bicycle use due to enforcement efforts. GHSA similarly argued that

Countermeasures That Work

over-encourages investment in enforcement-related countermeasures. As we noted in the NPRM, NHTSA is currently working on the next edition of the

Countermeasures That Work

and will explore the considerations raised in these comments in the course of that undertaking.

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

D. National Roadway Safety Strategy and the Safe System Approach

NHTSA received several comments regarding the implementation of the National Roadway Safety Strategy (NRSS) and the Safe System Approach (SSA). NHTSA is committed to working with the States to successfully implement the NRSS and the SSA within the formula grant programs and views the grant program as an important part of a much broader strategy involving multiple DOT modes and stakeholders. NHTSA urges states to consider how their triennial Highway Safety Plans fit into a broader SSA, to work collaboratively to consider the ways in which multiple strategies—including grant-funded strategies and other State and local programs—can work synergistically, and to think holistically about using all available tools to reduce roadway fatalities and crashes. For example, in addressing pedestrian safety, a State might consider improvements in infrastructure by providing more crosswalks and better lighting, reductions in speeds in areas with high pedestrian use, and enforcement and education in areas of high pedestrian injuries and fatalities. Even though highway safety grant funding is available for only some of these strategies, SHSOs should work with other entities on holistic solutions to problems identified in their triennial HSPs. States should also consider making recommendations within the Executive Branch about possible changes in State laws that can reduce fatalities and crashes even though SHSOs cannot engage in direct lobbying of their legislatures using highway safety grant funds. NHTSA appreciates the continued support and feedback from commenters on NRSS and SSA implementation, and provides responses below.

The CT HSO repeated its previous comment that implementing the NRSS and the SSA will require NHTSA to afford administrative flexibility to States. As expressed in the NPRM, NHTSA intends to provide such flexibility consistent with applicable law.

AAMVA suggested that, in addition to administrative flexibility, NHTSA provide centralized guidance and support to assist State efforts in implementing the NRSS and the SSA. The League of American Bicyclists reiterated that NHTSA and States should do more to promote the understanding, acceptance, and implementation of the SSA in State transportation agency cultures. NHTSA agrees that the agency should work to ensure that grantees understand and properly implement the NRSS and the SSA. As announced in May 2022, NHTSA offers and will continue to offer expanded safety program technical assistance to States to assist them with understanding and implementing the NRSS and the SSA, and will continually assess States' needs in this area.

AAMVA stressed the importance of quality data that can be exchanged among stakeholders. NHTSA agrees that the objectives of the NRSS/SSA are inherently intertwined with the agency's data-driven mission to save lives, prevent injuries, and reduce economic costs due to road traffic crashes through education, research, safety standards, and enforcement. To address the unacceptable increases in fatalities on our nation's roadways, the NRSS/SSA adopts a data-driven, holistic, and comprehensive approach focused on reducing the role that human mistakes play in negative traffic outcomes and in recognizing the vulnerability of humans on the road. NHTSA expects States to use the best and most comprehensive data available (extending beyond fatality data) to conduct problem identification, set performance targets, and assess their progress in meeting those targets. States are also encouraged to think critically about how available data can and should be used to analyze their highway safety programs beyond the information that is specifically required. Further, NHTSA encourages States to consider ways to improve State data systems in order to increase data availability and data-sharing opportunities.

E. Transparency

NHTSA appreciates the League of American Bicyclists' support of NHTSA's proposed approach to satisfy the BIL's expanded transparency requirements, particularly in relation to the information provided in the annual grant application. The League of American Bicyclists expressed broad support for greater transparency and specifically encouraged NHTSA to make publicly available the information provided in the annual report by States about the community collaboration efforts that are part of the State's evidence-based enforcement program. NHTSA notes that this information will be made available, as the BIL requires NHTSA to publicly release, on a DOT website, all approved triennial HSPs and annual reports. 23 U.S.C. 402(n). NHTSA will post this information on

NHTSA.gov,

consistent with the statutory requirements.

The BIL further requires that the website allow the public to search specific information included in the released documents: performance measures, the State's progress towards meeting the performance targets, program areas and expenditures, and a description (if provided) of any sources of funds other than NHTSA highway

safety grant funds that the State proposes to use to carry out the triennial HSP. 23 U.S.C. 402(n)(2). In response to this statutory requirement, GHSA requested that NHTSA clarify that non-Federal funds are no longer required to be reported by the States. We confirm that the BIL removed the requirement to describe all non-Federal funds that the State intends to use to carry out countermeasure strategies in the triennial HSP. However, States are still required to provide information on matching funds that will be used to meet the non-Federal share of the cost of the program. NHTSA will post information on State matching funds and any other non-Federal funding sources that States choose to provide in their triennial HSPs and annual grant applications. However, for improved accountability and transparency in the highway safety grant program, NHTSA encourages States to continue reporting State, local, or private funds they propose to use. As the League of American Bicyclists noted, having such information publicly available would strengthen understanding of the funding uses.

In response to the RFC, NHTSA received many comments advocating for an electronic grant management (e-grant) system. In contrast, in response to the NPRM, MN DPS recommended that NHTSA not develop a new e-grant system, explaining that it would be too difficult to transition to such a system at the same time as adjusting to the new authorization of the grant program. As stated in the NPRM, an e-grant system would foster greater transparency in the use of NHTSA highway safety grant funds by allowing State program information to be aggregated, organized, and made available to the public in a user-friendly manner. NHTSA has not yet deployed such a system, as the TN HSO pointed out, and the agency does not plan to do so concurrently with the initial deployment of the newly authorized grant programs. Currently, NHTSA is in the exploration stages of developing an e-grant system. The TN HSO requested that States participate in developing the grant management system. We expect that any future e-grant system will facilitate greater cross-state collaboration, data analysis, and transparency in the use of program funds. To facilitate this outcome, NHTSA will actively engage States and other stakeholders in its development.

NHTSA sought comment in the NPRM on whether a standardized template, codified as an appendix to the regulation, would be helpful as an interim measure for States to provide information in a uniform manner similar to what we hope will be enabled by a future e-grant system. In response, three commenters

recommended against developing a standardized template at this time in favor of waiting for the deployment of the future e-grant system. Accordingly, NHTSA will not develop a standardized template as part of this rulemaking.

AAMVA, GHSA, and TN HSO.

F. Emergency Medical Services

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

Three commenters discussed eligibility for funding under NHTSA's highway safety grant program. NEMSMA requested that NHTSA ensure that grant funds go to rural EMS providers, including volunteer groups. WY OEMS recommended that NHTSA require States to provide funding to EMS and State or local trauma systems. Pamela Bertone requested that for-profit EMS companies be deemed ineligible for funding and that, if they were to remain eligible, States should be required to look at the financial portfolio and tax returns of the CEO. NHTSA supports the EMS communities' efforts to integrate post-crash care initiatives into State highway safety programs where supported by the data and encourages States to consider funding eligible EMS activities with NHTSA's highway safety grant funds. However, under our grant statute, NHTSA does not have the authority to direct State funding choices or to provide funding directly to EMS agencies. Similarly, NHTSA does not have the authority to prohibit States from entering into grants with for-profit entities; however, Federal grant rules prohibit an entity from earning profits from a Federal award or subaward.

See

2 CFR 200.400(g).

Three commenters

provided recommendations that certain costs be considered allowable uses of NHTSA highway safety grant funds. Identified costs included training, Centers of Excellence related to emergency responder highway safety, purchase of safety and personal protective equipment, development of technologies to notify drivers they are approaching a crash scene with responders present, data collection, and enhancements to 911 systems and collision notification systems. An anonymous commenter argued that grants should provide funding for EMS systems based on a ratio of population and regionalization. As we explained in the NPRM, determinations of allowable use of funds are highly fact-specific and are dependent on many factors, including the funding source to be used (

i.e.,

Section 402 or one of the Section 405 incentive grants) and the details of the activity to be funded. In cases where there is not a sufficient nexus to traffic safety to fund the entirety of the project, projects may be limited to proportional funding. In addition, all activities funded by NHTSA highway safety grant funds must be tied to countermeasure strategies for programming funds in the State's triennial HSP, which in turn must be based on a State's problem identification and performance targets. NHTSA strongly encourages all stakeholders, including the EMS community, to work closely with State HSOs to offer ideas for potential activities that may be eligible for NHTSA formula grant funding.

Anonymous commenter, NASNA, and NEMSMA.

NEMSMA also provided comments related to many activities of NHTSA's Office of Emergency Medical Services (OEMS). The Office of EMS is a knowledgeable and useful resource to States, EMS agencies, and to NHTSA itself in addressing the post-crash care component of the highway safety grant program. However, those comments were outside the scope of this rulemaking because they relate to NHTSA's activities outside of the highway safety grant program.

G. Other

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

campaigns using Section 402 grant funds.

IV. General Provisions (Subpart A)

A. Definitions (23 CFR 1300.3)

GHSA commented that the definitions of “program area” and “project (or funded project)” should reference either the annual grant application or the triennial HSP instead of the HSP. Where the NPRM referenced the “HSP,” NHTSA intended it to refer to the “triennial HSP.” Consequently, NHTSA has amended the definitions for clarity to reference the triennial HSP.

In addition, NHTSA made purely technical amendments to several definitions. The agency updated citations within the definitions of “Section 1906,”

“State highway safety improvement program,” and “State strategic highway safety plan.”

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

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

B. State Highway Safety Agency (23 CFR 1300.4)

The CT HSO and GHSA both expressed concern with the proposal that the Governor's Representative for Highway Safety (GR) may not be employed by a subrecipient of the State highway safety agency (commonly referred to as the State Highway Safety Office, or SHSO). CT HSO explained that the CT HSO is a subcomponent agency of the CT DOT; the GR is employed by the CT DOT, which receives subawards from the CT HSO. GHSA explained that in some States, the GR is an employee of the SHSO and that the SHSO awards grants to itself; or that, as in CT, the GR may be an employee of an overarching State department that receives subawards from the SHSO.

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

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

As explained in the NPRM, the BIL created a new triennial framework for the Highway Safety Grant Program, replacing the annual Highway Safety Plan (HSP) with a triennial HSP and annual grant application. As part of this new triennial framework, Congress increased community participation requirements and codified the annual reporting requirement.

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

AAMVA, the CT HSO, and the MN DPS requested that NHTSA avoid duplication between the three different submissions that make up the triennial framework (the triennial HSP, the annual grant application, and the annual report). NHTSA will discuss specific requirements in more detail in the relevant sections of the preamble, but notes here that the triennial framework created by the BIL was designed to allow the three program documents to build on each other. While the required components of the submissions never overlap completely, they frequently focus on the same types of information captured at different times throughout the life of the grant, from long-range planning (triennial HSP), to grant year implementation (annual grant application), to end of year oversight and performance reporting (annual report), to triennial performance reporting (triennial HSP). Viewed in this context, these requirements are not duplicative, but rather relate to program information developed at various stages along a timeline. Where information is truly duplicative, we have striven to avoid redundancy, as noted earlier.

AAMVA requested that NHTSA provide front-end support and flexibility to States as they transition to the new triennial framework. NHTSA is committed to providing States with all necessary support during this transition, and continuing onward, as they implement highway safety programs. With the recent increase in traffic fatalities, it is more important than ever that States carry out strong, data-driven, and performance-based highway safety programs. NHTSA believes that the triennial framework created by the BIL, with annual projects tied to longer-range planning based on performance targets and countermeasure strategies, will be a valuable tool for States as they work in partnership with NHTSA to address the recent traffic. NHTSA, including its Office of Regional Operations and Program Delivery and our ten regions, stand ready to assist the States in deploying successful programs under the new authority. While we have worked to implement the statutory requirements without imposing unnecessary burdens on States, we are committed to ensuring through our review and approval authority that State triennial HSPs and annual grant applications provide for data-driven and performance-based highway safety programs. We will provide States with the support necessary to reach these goals, but will look to the States to provide high quality programs that NHTSA is able to approve.

A. First Year Flexibility

Several commenters

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

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

AAMVA, GHSA, MN DPS, and MoDOT.

NHTSA declines to delay these public engagement requirements, which form one of the seminal requirements of the new BIL grants. In enacting BIL, Congress recognized the need to allow States time to ramp up their efforts in this and other areas of the new grant programs, and so delayed the start of the new requirements for almost two years after enactment. This delay provided the States ample time to prepare for needed adjustments, and NHTSA is not able to waive the statutory directive for “meaningful public participation and engagement from affected communities.” Moreover, in an era of increasing traffic fatalities and disparate outcomes, NHTSA will not compromise on the quality of the approved highway safety programs under the new statutory framework, and that includes the critical component of public engagement. Accordingly, all requirements will take full effect for FY24 grants. The public engagement requirements in this regulation implement important requirements set out in the BIL and in accordance with Title VI of the Civil Rights Act of 1964

(or Title VI), as well as NHTSA's own commitment to ensuring that equity is centered in the planning and implementation of the highway safety grant program. They are also of clear importance to the populace within the States.

42 U.S.C. 2000d

et seq.,

78 stat. 252.

NHTSA is committed to ensuring that States have the assistance necessary to help in implementing the public engagement requirements. In October 2022, DOT published a guide titled “Promising Practices for Meaningful Public Involvement in Transportation Decision-Making.”

NHTSA recently hired two staff members dedicated to providing technical assistance to States on outreach and engagement efforts and will provide a suite of resources in this area in coordination with NHTSA's Office of Civil Rights, which provides technical assistance regarding Title VI and other Federal civil rights laws. Shortly after the issuance of this final rule, NHTSA will conduct webinars discussing meaningful public engagement and involvement.

Available online at

https://www.transportation.gov/priorities/equity/promising-practices-meaningful-public-involvement-transportation-decision-making.

B. Triennial Highway Safety Plan (23 CFR 1300.11)

The triennial HSP documents the State's planning for a three-year period of the State's highway safety program that is data-driven in establishing performance targets and selecting the countermeasure strategies for programming funds to meet those performance targets. As the CT HSO reiterated in its comments, the triennial HSP is intended to focus on program-level information. It serves as the long-range planning document for State highway safety programs.

GHSA expressed concern that the descriptive elements of the triennial HSP might lead to subjective consideration during NHTSA's review and approval or lead to Regional misinterpretation of the requirements. It recommended that NHTSA establish a sense of the parameters for all descriptive elements. NHTSA provided significant clarification regarding some of these elements in the preamble to the NPRM and provides more clarification below. However, it is also NHTSA's intention to leave flexibility for States to structure their triennial HSPs in the manner that best reflects the data and resources of the State. And, since a State's triennial HSP is essentially a document customized to its own needs, based on problem identification within its borders, NHTSA is avoiding being overly prescriptive and taking a one-size-fits-all approach to review of these documents.

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

AAMVA expressed support for NHTSA's decision in the NPRM not to specify problem areas that States must consider in triennial HSP problem identification, but instead to provide States with the flexibility to identify problems based on the data. AAMVA further noted that States will likely explore non-conventional data sources in response to this rulemaking and requested that NHTSA provide support and flexibility to States as they establish and refine these data sources. As noted in the NPRM, NHTSA encourages States to consider and use non-conventional data sources (

e.g.,

socio-demographic data) and will provide States with assistance upon request.

As explained in more detail in the annual grant application section below, NHTSA has amended the regulatory text to provide that States should consult geospatial data as part of their problem identification process. 23 CFR 1300.11(b)(1)(ii). This could include consulting location-based data sources to provide insight into the selection of specific roadways and/or intersections to conduct enforcement activities where they are most needed.

Finally, AAMVA also supported NHTSA's view, stated in the NPRM in response to a comment, that it is unnecessary for States to provide a plan for regular data assessments in the triennial HSP, because States are already required to submit annual reports that assess their progress in meeting performance targets.

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

In BIL, Congress added a requirement that State highway safety programs result from meaningful public participation and engagement from affected communities, particularly those most significantly impacted by traffic crashes resulting in injuries and fatalities. 23 U.S.C. 402(b)(1)(B). AAMVA and the 5-State DOTs expressed broad support for the new emphasis on public engagement.

GHSA reiterated its prior comment that many States already have successful public engagement initiatives underway, but noted that their strategies have not been effectively shared. It offered to collaborate with NHTSA to support States in implementing broader public engagement and in sharing best practices. AAMVA similarly requested that NHTSA provide guidance to States on how to meet public engagement requirements. The League of American Bicyclists requested that NHTSA analyze State activities in this area and publish a report. GHSA and AASHTO recommended that NHTSA refer to FHWA's experience with the public participation process as it develops its own guidance. NHTSA appreciates this shared commitment to public engagement and looks forward to working with the States and GHSA to share best practices and effective strategies to increase community engagement. As mentioned previously in this document, NHTSA recently hired two staff members dedicated to providing technical assistance to States on outreach and engagement efforts and

will provide a suite of resources in this area in coordination with NHTSA's Office of Civil Rights, including webinars that will be conducted shortly after the issuance of this final rule.

As explained in the preamble to the NPRM, NHTSA structured the public engagement section of the triennial HSP so that States can meet both the BIL requirements and the Title VI Community Participation Plan requirements with the same submission. Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, or national origin (including limited English proficiency) in any program or activity receiving Federal financial assistance. As implemented through the U.S. Department of Transportation Title VI Program Order (DOT Order 1000.12C), Title VI requires, among other things,

that all recipients submit a Community Participation Plan. The purpose of the Community Participation Plan is to facilitate full compliance with the community participation requirement of Title VI by requiring meaningful public participation and engagement to ensure that applicants and recipients are adequately informed about how programs or activities will potentially impact affected communities, and to ensure that diverse views are heard and considered throughout all stages of the consultation, planning, and decision-making process. MN DPS supported NHTSA's efforts to combine the two requirements. GHSA sought clarification about whether States must submit or maintain on file a separate file to fulfill the Community Participation Plan requirements from Title VI. NHTSA confirms that the triennial HSP submission is sufficient to satisfy the Community Participation Plan requirements, and no further documentation is needed for that component of Title VI.

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

GHSA and the MoDOT argued that the BIL limits the requirement for meaningful public participation and engagement to the “program,” interpreting that to refer only to the triennial HSP and countermeasure strategy level

planning,

not to

project level implementation.

On a similar note, AASHTO and the 5-State DOTs expressed concern that States would be required to bring public engagement into all levels of project management, including at the project level. These commenters requested that NHTSA change the proposed regulatory language to make clear that public engagement is only required for program

planning,

not throughout program

implementation and management.

NHTSA disagrees. A State highway safety “program,” as described in 23 U.S.C. 402(b), refers to the entire lifespan of the State's highway safety efforts, from planning to project implementation to program evaluation. The public engagement requirements in § 1300.11(b)(2) reflect this, by requiring public participation and engagement not just in the planning processes leading up to the triennial HSP (

see

§ 1300.11(b)(2)(i)), but also throughout the life of the grant (

see

§ 1300.11(b)(2)(iii)). States must consider community input while planning and implementing projects under the highway safety program, but are not expected to conduct public participation and engagement efforts on a project-by-project basis. For example, a State could conduct public participation and engagement efforts related to its impaired driving program for a fiscal year and then use the input received during those engagement efforts when it implements its impaired driving projects, rather than conducting engagement efforts for each impaired driving project. We have amended the requirement to clarify that the State's statement of starting goals for public engagement needs to include discussion of how the public engagement efforts will contribute to the development of the State's highway safety program as a whole, including countermeasure strategies for programming funds. § 1300.11(b)(2)(i)(A).

Further, § 1300.11(b)(2)(ii)(C) requires the State to discuss how the comments and views received in engagement opportunities conducted for the triennial HSP have been incorporated into the development of the triennial HSP. This also reflects the comprehensive community participation requirements in accordance with Title VI of the Civil Rights Act of 1964 and supports NHTSA's goal of ensuring that the public participation and engagement opportunities that are conducted are meaningful and that equity is a focus throughout all stages of the highway safety grant program. However, NHTSA notes that States will still be able to make management and even programmatic decisions without conducting public engagement opportunities for each decision. The goal is for a State to provide sufficient opportunities for public engagement so that the State can be informed by the input received during those opportunities as it plans, implements, and manages the highway safety grant program.

In order to clarify the stages of public engagement required, NHTSA has reformatted § 1300.11(b)(2) to better identify the components of the State's public participation and engagement submission: (1) triennial HSP engagement planning; (2) triennial HSP engagement outcomes; and (3) ongoing engagement planning. As explained in more detail later, States will later be required to describe the ongoing engagement efforts that they conduct in each grant year in the annual report.

See

23 CFR 1300.35(b)(2). Limited, non-substantive changes have been made to the regulatory text to accommodate this reorganization. For clarity, we have also written specific requirements for State plans for ongoing engagement in § 1300.11(b)(2)(iii), rather than relying on an internal citation.

The NV OTS commented that the requirement to provide lists of engagement opportunities conducted, with additional descriptive information, is too burdensome. NV OTS argued that such lists could become too extensive for NHTSA to adequately assess and argued that States should only be required to develop an engagement plan with projected activities, not provide details about engagement conducted. Upon consideration, NHTSA agrees that lists of every engagement opportunity conducted may become too voluminous and may not be useful for NHTSA's approval process or for transparency purposes. However, we disagree that States should be allowed to submit only plans, with no requirement to describe engagement actually conducted as part of the triennial HSP planning process. We have therefore amended the regulatory text to require that States must provide narrative assessments and descriptions of their community engagement efforts instead of a list. 23 CFR 1300.11(b)(2)(ii).

MN DPS argued that being required to identify specific engagement efforts would hinder State efforts that are currently underway by requiring States to reengineer existing public engagement plans. AAMVA noted that it agreed with GHSA's comment to the RFC that the volume of comments received would be an inaccurate and unreliable benchmark for public engagement. We note that, while the regulation requires States to describe the engagement efforts conducted, it does not require specific forms of public

participation and engagement, nor require specified outcomes. However, the agency expects that if a State does not achieve reasonable participation through the participation plan described in the triennial HSP, it will use that experience to inform its plans for continuing public participation during the triennial period and into the next triennial HSP. As long as a State is able to meet the requirements of the triennial HSP and annual report, it may facilitate public participation in the manner best suited to the needs of the State and its communities.

In addition to the comments in response to the RFC on the topic, NHTSA received several comments expressing the need for funding for the BIL's increased public engagement requirements. GHSA, MN DPS and MoDOT requested clarification about whether NHTSA grant funds may be used to support public participation and engagement efforts in general. As NHTSA explained in the preamble to the NPRM, the specifics of whether and how NHTSA grant funds may be used to pay for these types of costs are highly fact specific and implicate many different Federal and State laws and regulations. However, as a general matter, States may use NHTSA grant funds for costs associated with public participation and engagement activities, including activities required to plan and conduct public engagement required for submission of the triennial HSP. Any such costs are Planning and Administration costs and are subject to the allowance for such costs, as laid out in 23 CFR 1300.13(a).

The League of American Bicyclists requested that NHTSA compile information on how States use NHTSA grant funds for purposes of compensating community members for their public participation and publish a report on those uses of funds. GHSA did not think it likely that States would consider compensating participants, but nonetheless sought clarification from NHTSA on whether such compensation would be an allowable use of grant funds. As explained above, whether a specific cost is an allowable use of funds is highly fact specific and subject to many different Federal laws and regulations. Differences in State laws and regulations may also affect whether a State may compensate participants in public engagement efforts. That said, these sorts of costs are potentially allowable uses of grant funds and NHTSA will work with States to determine whether any specific participation costs are allowable. Since no States currently use NHTSA grant funds for this purpose and it is unknown if any States will do so, NHTSA has no plans to publish a report at this time.

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

The BIL continues to rely on performance measures as a fundamental component of State highway safety program planning in the triennial HSP. The BIL maintains the existing structure that requires States to provide documentation of the current safety levels for each performance measure, quantifiable performance targets for each performance measure, and a justification for each performance target.

The BIL provides that States must set performance targets that demonstrate constant or improved performance and provide a justification for each performance target that explains why the target is appropriate and evidence-based. 23 U.S.C. 402(k)(4)(A)(ii) and (iii). As NHTSA explained in the preamble to the NPRM, the requirement for constant or improved performance will facilitate open discussions about desired safety outcomes and how to allocate resources to reach those outcomes. In an era of increasing fatalities, it is vital that performance targets offer realistic expectations that work toward the long-term goal of zero roadway fatalities and provide a greater understanding of how safety issues are being addressed. Roadway deaths are unacceptable and preventable; we must all work toward making the goal of zero roadway fatalities a reality, and performance management is a vital tool for making that happen.

Several commenters

reiterated arguments they made in response to the RFC that requiring targets showing constant or improved performance is contrary to the requirement that targets be appropriate and evidence-based, and asked that NHTSA explain how a State can set a data-driven target if the evidence does not demonstrate constant or improved performance. GHSA disagreed with NHTSA's response in the NPRM, which explained that States should consider different countermeasure strategies or adjust funding within a countermeasure strategy in order to achieve constant or improved performance. GHSA argued that States do not have unlimited resources to do so, nor do they have an unlimited menu of acceptable countermeasures. Instead, GHSA requested that, if a State's data analysis shows that an appropriate target would not demonstrate constant or improved performance and the State cannot allocate additional resources, NHTSA should nonetheless allow that State to adjust the target to be “constant.” The agency recognizes that resources are not unlimited, but the BIL greatly expanded highway safety grant funds available to the States, providing a more than 30 percent increase. The traveling public has a right to expect that the nearly 4 billion dollars in highway safety grant funding authorized by the BIL will result in fewer lives lost on our Nation's roadways. With that in mind, lack of resources is not an acceptable justification for failure to demonstrate constant or improved performance, and NHTSA will not label as “constant” any target that demonstrates worsening performance.

AASHTO, GHSA and MN DPS.

NHTSA also disagrees with the implied premise that States lack the ability to influence safety numbers and stands by our prior response; performance targets are inextricably tied to countermeasure strategies for programming funds. Targets should reflect the outcomes that States expect to achieve after implementing their planned programs. If a projected outcome shows worsening safety levels, then the State needs to change its planned program either at or below the countermeasure strategy level. States receive highway safety grant funds in order to achieve important safety outcomes. NHTSA strongly encourages States to consider innovative countermeasure strategies as long as they are consistent with Federal statutes and regulations; we have seen States implement several such strategies successfully in the past.

Some commenters

requested that, in order to meet the requirement to set data-driven targets that show constant or improved performance, States be allowed to “reset” targets based on recent data. These comments suggest a belief that States must set ever-lower performance targets every triennial cycle, regardless of the data at the time the triennial HSP is submitted. Such a construction would divorce performance management from the underlying data. NHTSA has therefore added regulatory language to make clear that States must set performance targets that show constant or improved performance compared to the safety levels, based on the most currently available data, not based on the target from the prior triennial HSP. 23 CFR 1300.11(b)(3)(ii)(B). This will serve as a constructive “reset” of performance targets based on documented safety levels for each triennial HSP. This clarification should also resolve the CT

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

AASHTO, CT HSO, and GHSA.

Several commenters expressed concern that States will face penalties if they fail to meet aggressive targets. Section 402 requires States to assess in both the triennial HSP (23 U.S.C. 402(k)(4)(E)) and the annual report (23 U.S.C. 402(l)(2)) the progress made in achieving performance targets in the annual grant application the means by which the State's countermeasure strategy for programming funds was adjusted and informed by that assessment (23 U.S.C. 402(l)(1)(C)), and NHTSA is required to publicly release an evaluation of State achievement of performance targets (23 U.S.C. 402(n)(1)). However, there are no monetary or programmatic penalties for failure to achieve a performance target in NHTSA's highway safety grant program. GHSA requested that NHTSA acknowledge that failure to meet performance measures reflects poorly on State programs and that they may face additional administrative steps (the required assessment and adjustment of countermeasure strategies). AASHTO noted that added administrative burdens have cost and resource impacts. The MoDOT argued that performance targets are not performance predictions and requested that NHTSA acknowledge that failure to meet performance targets does not mean that a State's programs are ineffective. NHTSA believes that performance measures bring transparency to the safety outcomes of State programs and can be helpful to States in planning a program designed to help them meet performance targets. NHTSA acknowledges that this transparency may sometimes be uncomfortable for a State, but believes it is vital to ensuring that highway safety programs produce meaningful improvements every year.

As GHSA notes, States are required to describe plans to adjust their countermeasure strategies for programming funds if they are not on track to meet performance measures. However, we disagree with labelling such work a penalty; it is a response designed to address an identified safety problem that has not been resolved and to encourage redirecting the investment of funds to better meet performance targets. NHTSA and the States share the common goal of reducing highway fatalities and injuries. It is our joint responsibility to deploy grant funds squarely toward that end. NHTSA challenges States to think creatively and critically about ways to improve the safety outcomes of their programs.

NHTSA received many comments specifically related to the common performance measures that States also report annually to FHWA for the State highway safety improvement program (HSIP).

AASHTO, the CT HSO, and the MN DPS all recommended that NHTSA collaborate with FHWA, GHSA, and AASHTO to reevaluate how performance measures are established and used and to assist States in complying with both NHTSA and FHWA performance requirements. NHTSA appreciates this suggestion and will continue to work closely with these partners to provide needed technical assistance to States.

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

Many commenters

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

The minimum performance measures created in cooperation with GHSA focus more specifically on areas within the SHSO control.

AASHTO, AAMVA, GHSA, MN DPS, and MoDOT.

In fact, States are required to submit performance measures for any program area for which a minimum performance measure does not already exist (for example, distracted driving), because all projects funded with NHTSA grant funds must be tied to a countermeasure strategy for programming funds that is addresses a performance target in the triennial HSP.

See

23 CFR 1300.12(b)(2)(ix) and 23 CFR 1300.11(b)(4)(iii).

AASHTO expressed appreciation for NHTSA's proposal that States be allowed to update the targets for the three common performance measures in the annual grant application.

See

23 CFR 1300.12(b)(1)(ii). It asked how States should reflect those changes in the triennial HSP. The annual grant application includes a section for updates to the triennial HSP.

See

23 CFR 1300.12(b)(1). Upon approval of the annual grant application, any changes that a State makes to the triennial HSP under that provision will be presumed by NHTSA to be incorporated into the triennial HSP and will not require any further efforts on the part of the State to amend the triennial HSP itself.

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

in accordance with 23 U.S.C. 402(k)(5). In contrast, the 5-State DOTs reiterated that they do not believe any new performance measures are required. NHTSA intends to convene meetings with stakeholders and to collaborate with GHSA to update the minimum performance measures well in advance of the FY 2027 triennial HSP submission date. NHTSA will draw all of the comments received under this rulemaking into that effort and will seek further input from these and other groups at that time. As we did previously, NHTSA commits to publishing the proposed minimum performance measures in the

Federal Register

for public inspection and comment. For the purposes of the FY24 triennial HSP, States are encouraged to develop additional measures, consistent with 23 CFR 1300.11(b)(3)(iii), for problems identified by the State that are not covered by existing minimum performance measures.

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

AASHTO reiterated its comment to the RFC, stating that the regulation should more clearly vest target establishment authority in the States, arguing that it is inconsistent to require NHTSA approval for performance targets when 23 U.S.C. 150(d)(1) provides States with authority to establish targets for the HSIP without FHWA approval. AASHTO argued that NHTSA cannot appropriately rely on the reasoning set forth by FHWA in its final rule for the National Performance Management Measures: Highway Safety Improvement Program, which set out

the parameters of the common performance measures,

because the statutes have changed since that time. However, the

relevant

portions of those statutes have not changed. Regardless, as we noted in the NPRM, NHTSA does not have the discretion to override the statutory requirement for approval or disapproval of triennial HSPs, including the performance measures contained therein.

See

23 U.S.C. 402(k)(6).

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

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

The BIL requires each State to submit, as part of the triennial HSP, a countermeasure strategy for programming funds for projects that will allow the State to meet the performance targets set in the triennial HSP. 23 U.S.C. 402(k)(4)(B-D).

GHSA noted that NHTSA seems to use the terms “countermeasure” and “countermeasure strategy for programming funds” inconsistently throughout the regulation, occasionally using “countermeasure” where GHSA believes it should read “countermeasure strategy for programming funds”. Upon reviewing the regulatory text, NHTSA found one instance where the terms were used in an unclear context and has amended the regulatory text in § 1300.11(b)(4)(ii)(B) to refer to “countermeasures” rather than “countermeasure strategies.” The term “countermeasure” is used singularly in several of the Section 405 grant sections; however, NHTSA confirms that those uses are appropriate based on the statutory text and intent.

For each countermeasure strategy, the State must provide: (1) identification of the problem ID that the countermeasure strategy addresses and a description of the link between the problem ID and the countermeasure strategy; (2) a list of the countermeasures that the State will implement as part of the countermeasure strategy, with justification supporting the countermeasures; (3) identification of the performance targets the countermeasure strategy will address with a description of the link between the countermeasure strategy and the target; (4) a description of the Federal funds the State plans to use; (5) a description of the considerations the State will use to determine what projects to fund to implement the countermeasure strategy; and (6) a description of the manner in which the countermeasure strategy was informed by the uniform guidelines issued by NHTSA in accordance with 23 U.S.C. 402(a)(2). § 1300.11(b)(4).

NHTSA received many comments related to the requirement to provide justification supporting countermeasures that are included in a countermeasure strategy for programming funds.

See

23 U.S.C. 402(k)(4)(C) and 23 CFR 1300.11(b)(4)(ii). As a preliminary matter, NHTSA points out that this provision is largely similar in substance to the requirements under the FAST Act, in which States were required to provide justification supporting the potential effectiveness of innovative countermeasures as they relate to the problem identified. NHTSA proposed two changes to the requirement in the NPRM: (1) the agency provided that any countermeasure rated 3 stars or higher in

Countermeasures That Work

are proven effective and do not require justification; and (2) the agency added data and data analysis to the requirements for supporting an innovative countermeasure. The requirement to provide data and data analysis is taken directly from the BIL, which requires States to provide data and data analysis supporting the effectiveness of proposed countermeasures.

See

23 U.S.C. 402(k)(4)(C).

The CT HSO, DE OHS, GHSA, MN DPS, and MO DOT argued that requiring States to provide justification for countermeasures not identified as 3 stars or above in

Countermeasures That Work

adds an unnecessary burden on states and would stifle innovation. The League of American Bicyclists expressed concern that the requirement would encourage States to focus on countermeasures in

Countermeasures That Work

at the expense of other promising countermeasures. The League of American Bicyclists and GHSA both noted that this could incentivize States to conduct more enforcement. GHSA recommended that NHTSA allow States to cite to the Uniform Guidelines for State Highway Safety Programs

and to recommendations in NHTSA-affiliated program assessment reports. NHTSA reminds commenters that the requirement to justify countermeasures derives from the statute. In exempting countermeasures rated 3 stars and above from the requirement to provide justification of effectiveness, NHTSA sought to limit the burden on States by not requiring each State to provide independent justification for countermeasures that have already been proven over time. To further that goal, NHTSA has adopted GHSA's suggestion to also exempt countermeasures included in the Uniform Guidelines and as recommendations in NHTSA-affiliated program assessment supports. § 1300.11(b)(4)(ii)(A). NHTSA encourages innovation and urges States not to rely overly on the same set of countermeasures that have not produced positive programmatic change to date, even if they are rated 3 stars or above. Even though these countermeasures are exempted from the requirement to provide independent justification of effectiveness, as with all countermeasure strategies, States must still describe the link between the problem identification and the countermeasure strategy and the link between the effectiveness of the countermeasure strategy and the performance target. §§ 1300.11(b)(4)(i) and (iii).

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

The League of American Bicyclists suggested that NHTSA accept the SSA principles as a justification for choosing countermeasure strategies in the triennial HSP. While NHTSA agrees that the SSA principles are great guiding principles for a State to use in selecting countermeasures, NHTSA notes that principles do not qualify as data and data analysis required to justify the use of a countermeasure.

The DE OHS argued that justification of the effectiveness of innovative countermeasure strategies is better suited to be addressed in the annual report than in the triennial HSP. The MoDOT argued that requiring justification of countermeasures is an overreach by NHTSA, reasoning that SHSOs are responsible for identifying and implementing countermeasures and that NHTSA need only ensure the State administers a compliant program. MoDOT further questioned why States should have to justify countermeasures when they will be evaluated on their ability to meet performance measures. NHTSA reminds the States that the BIL specifically requires States to submit data and data analysis supporting the effectiveness of proposed countermeasures in the triennial HSP.

See

23 U.S.C. 402(k)(4)(C). However, NHTSA also strongly encourages States to evaluate the effectiveness of all innovative countermeasures after implementation and to share those results with NHTSA and with other States. Furthermore, the statute provides that NHTSA has responsibility for reviewing the triennial HSPs submitted by the States and ensuring that the triennial HSPs satisfy the statutory and regulatory requirements prior to approval.

See

23 U.S.C. 402(k)(6).

GHSA and DE OHS sought clarification about the level of detail required to justify innovative countermeasures, requesting that NHTSA keep the requirement similar to the existing requirement for innovative countermeasures under the FAST Act. They cautioned that States should not be required to submit detailed research reports. NHTSA confirms that the level of justification required for innovative countermeasures is fundamentally the same as in the regulation implementing the FAST Act. Commenters may be misinterpreting the level of justification required. For example, a State could cite to a countermeasure from a different program area in the

Countermeasures That Work

and briefly explain why it believes that countermeasure would be similarly effective in the relevant program area. Alternatively, a State could provide a citation to a report on a pilot program carried out elsewhere, or to existing research demonstrating the effectiveness of a strategy in a different context, potentially outside of the highway safety context. To clarify that States are not required to submit research reports, NHTSA has amended the regulatory text to require that the justification use

available

data, data analysis, research, evaluation and/or substantive anecdotal evidence. § 1300.11(b)(4)(ii)(B).

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

The BIL requires that the triennial HSP include a report on the State's success in meeting its safety goals and performance targets set forth in the most recently submitted highway safety plan. In order to foster a connection between the triennial HSP and annual reports, NHTSA specified that the performance report in the triennial HSP contain the same level of detail as the annual report. Both AAMVA and GHSA expressed confusion over the level of detail expected for the triennial HSP performance report. GHSA noted confusion because the regulation cites to the entirety of § 1300.35, not just the performance report section at § 1300.35(a), and asked whether NHTSA wants States to combine three years of annual report performance reports into a single analysis.

In order to avoid confusion, NHTSA has removed the internal citation and inserted regulatory language specific to the triennial HSP. 23 CFR 1300.11(b)(5). While the language still mirrors the language for the annual performance report, it has been adjusted to reflect the triennial nature of the analysis. For example, while the annual report focuses on activities conducted during a single grant year, the triennial HSP focuses on countermeasure strategies implemented during the triennial period. NHTSA believes that States will be able to benefit from the yearly analysis they have already conducted in their annual reports when writing their triennial performance reports. As noted in the preamble to the NPRM, for the FY24 triennial HSP, NHTSA expects only analysis of the State's progress towards meeting the targets set in the FY23 HSP.

C. Annual Grant Application (23 CFR 1300.12)

NHTSA received comments on the proposed submission date and components of annual grant applications. We address each of these comments in the respective sections below and make necessary updates to the regulatory language for clarification and simplification.

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

The MA OGR requested that the due date of August 1 be changed to July 1 and/or that NHTSA reduce the 60-day review period to 30 or 45 days. The MA OGR noted that a due date of August 1, with a 60-day review period, would provide for a September 30 award date, which they argue provides insufficient time for States to award projects starting October 1. The due date of August 1 ensures that both States and NHTSA have adequate time to prepare, submit, and review annual grant applications. As explained in the NPRM, NHTSA proposed a deadline of August 1 to provide States with a due date different from the triennial HSP's July 1 deadline. Requiring both the annual grant application and the triennial HSP to be submitted on July 1 would impose more burden on States during the years when both submissions are required. This approach is informed by comments received in response to the RFC and discussed in more detail in the NPRM. Additionally, the statute affords 60 days for NHTSA to review and approve or disapprove annual grant applications. 23 U.S.C. 402(l)(1)(D). NHTSA notes that our ability to review and ultimately approve applications within the 60-day statutory timeline depends on the quality of the information provided by States. Where possible, we will strive to work with States to expedite the review process.

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

As part of annual grant applications, the BIL requires States to provide updates to their triennial HSPs, including a description of the means by which the strategy for programming funds was adjusted and informed by the most recent annual report. 23 U.S.C. 402(l)(1)(C)(iii). In the NPRM, NHTSA fleshed out this requirement by providing that where a State determined in its annual report that it was not on track to meet all performance targets, it must explain either how it will adjust the strategy for programming funds or why it is not doing so. Otherwise, a State must briefly state that it was on track to meet all performance targets. NHTSA appreciates AAMVA's support for streamlining the requirement for States that are on track to meet their performance targets.

In addition, States may make certain changes related to performance measures in the annual grant application. As explained in the NPRM, States may add new performance measures and amend common performance measures. GHSA requested NHTSA to clarify that States are allowed to amend common performance targets, rather than common performance measures as stated in the NPRM. As GHSA noted, States may amend performance targets associated with the common performance measures (

i.e.,

number of fatalities) rather than the measures themselves (

i.e.,

fatality, fatality rate, and serious injuries). NHTSA has made a conforming change to the language at 23 CFR 1300.12(b)(1)(ii) in accordance with this clarification.

The CT HSO stated that any updated data analysis should be required only in the triennial HSP, not the annual grant application. It is not clear to what data analysis the State is referring; however, NHTSA notes that States provide all updates to the triennial HSP via the annual grant application under the new triennial framework. Functionally, it is the same as updating or amending the triennial HSP itself.

GHSA, joined by the MN DPS, repeated its previous comment that the statute clearly provides that it is the State, not NHTSA, that determines when updates to the triennial HSP are necessary. As explained in the NPRM, NHTSA disagrees with this interpretation. The statute provides that an annual grant application must include any necessary updates to analysis in the State's triennial HSP. 23 U.S.C. 402(l)(1)(C)(i). The statute, however, is silent as to who determines what updates to analysis are necessary. While the statute allows a State to include such updates, it does not limit the determination of whether those updates are sufficient to States. The statute requires NHTSA to approve or disapprove a State's annual grant

application in part on the basis of whether it demonstrates alignment with the approved triennial HSP. 23 U.S.C. 402(l)(1)(A)(i). Updates to analysis in the State's triennial HSP may be necessary in order to demonstrate that the annual grant application aligns with the triennial HSP, as required by the BIL.

See

23 U.S.C. 402(l)(A)(i). NHTSA will not approve an annual grant application that is inconsistent with the approved triennial HSP.

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

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

See

23 U.S.C. 402(l)(C)(ii).

To satisfy those statutory requirements, States must submit the following information in their annual grant applications: project name and description, Federal funding source(s), project agreement number, subrecipient(s), amount of Federal funds, eligible use of funds, identification of Planning and Administration costs, identification of costs subject to Section 1300.41(b), and the countermeasure strategy for programming funds that the project supports. 23 CFR 1300.12(b)(2). These requirements ensure that NHTSA is able to understand whether the identified projects are sufficient for the State to carry out the countermeasure strategies in the triennial HSP, to identify projects against later submitted vouchers, and to meet statutory transparency requirements.

GHSA requested clarification about several items to be included in the project and subrecipient information. GHSA asked what NHTSA means by “eligible use of funds” and the level of detail that States will be expected to provide. NHTSA's purpose in including this information in the annual grant application, as well as in State vouchers (

see

23 CFR 1300.33(b)(3)), is to facilitate transparency in the use of NHTSA grant funds, to ensure consistency between planned and actual project expenses, and to facilitate verification of allowability of costs within specific program areas. For example, there are six specific eligible uses of Section 405(b) Occupant Protection Grants.

See

23 CFR 1300.21(g)(1). One such eligible use is “to train occupant protection safety professionals, police officers, fire and emergency medical personnel, educators, and parents concerning all aspects of the use of child restraints and occupant protection”. 23 CFR 1300.21(g)(1)(ii). For projects on occupant protection training, States should notate this specific eligible use as

Occupant Protection Training

and ensure that the project description includes the nature of the training and the intended audience. This same eligible use notation would apply to projects using Section 402 grant funds for occupant protection training. As another example, there are two eligible uses of Section 402 grant funds for automated traffic enforcement (school zone or work zone).

See

23 CFR 1300.13(g). Projects using Section 402 grant funds for automated traffic enforcement in a school zone should notate the eligible use as

Automated Traffic Enforcement—school zone

and ensure that the project description includes the appropriate information per 1300.12(b)(2)(i). If a State is uncertain about a specific use of funds, we encourage the State to reach out to the Region for assistance.

Next, GHSA requested that NHTSA clarify the requirement at 23 CFR 1300.12(b)(2)(viii), which requires States to identify whether a project will be used to meet the requirements of § 1300.41(b) (commonly referred to as promised projects). NHTSA confirms GHSA's understanding that States must identify whether the State is committing unexpended grant funds that would otherwise be deobligated and lapsed to a particular project consistent with § 1300.41(b).

GHSA also sought clarification about how States should organize information on the countermeasure strategy that the project supports, and asked for flexibility. States may format their project list by grouping projects based on the countermeasure strategy. It is incumbent on States to ensure that they submit all required information in an organized manner to minimize delays in NHTSA's review and avoid the need for follow-up information.

In the NPRM, NHTSA proposed to include zip codes as an example of information that may be provided as part of a project description. In addition, NHTSA proposed to require States to provide zip codes for all projects in the annual report and sought comment on whether there is a better metric for obtaining relevant location information for projects. In response, the DE OHS, GHSA, and MN DPS expressed concern that providing zip code information in annual grant applications and annual reports would impose an excessive burden on States and suggested finding a more efficient way to collect location data. NHTSA appreciates the feedback but also emphasizes that it is our responsibility to ensure that project information is consistent with States' triennial HSPs. As noted by the CT HSO, NHTSA's intent in proposing zip code information was to identify the location where a project is taking place, and location information is essential for NHTSA to verify that States are executing projects in the areas identified by the problem identification and/or countermeasure strategies in their triennial HSPs. However, NHTSA agrees that zip code information might not be the most relevant data point or may be cumbersome for States to compile, depending on project type. Accordingly, to avoid an unnecessary burden on States, we have removed specific references to zip codes from both the annual grant application and annual report sections of the regulation. Instead, NHTSA has amended the regulatory text to provide that States must provide information on the location where the project is performed as part of the project description in the annual grant application (which may include zip codes), but leaves it to the State's discretion what form this location information takes. § 1300.12(b)(2)(i).

NHTSA expects that States will provide information at the lowest geographic level applicable to each project. NHTSA notes that, consistent with the Federal Funding Accountability and Transparency Act (FFATA), States are already required to separately report the location of both the entity receiving the subaward and the primary location of performance for all subawards of $30,000 and above.

As previously mentioned, in order to ensure that States include location information in their triennial HSP problem identification, NHTSA has amended the data sources that a State should consult for problem identification to include geospatial data. § 1300.11(b)(1)(ii).

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

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

4. Amendments to Project and Subrecipient Information (23 CFR 1300.12(d))

As is explained in more detail in the annual report section, below, NHTSA is amending § 1300.12(d) to provide that all project information in the annual grant application must be complete at the time the State submits the annual report consistent with § 1300.35.

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

1. Planning and Administration (P & A) Costs (23 CFR 1300.13(a))

Three commenters

reiterated comments in response to the RFC requesting that NHTSA increase the percentage of funds that can be allocated to Planning and Administration (P & A) costs from 15% to 18% to cover increased costs due to the new BIL planning requirements, inflation, and the competitive employment market. GHSA further explained that this increase would give States greater flexibility in determining whether to fund staff programmatically or through P & A. NV OTS noted that the increase would help States like Nevada that need to maintain two separate offices for the HSO. In response to these last two points, the agency notes that whether highway safety staff is funded programmatically or through P & A is not dependent on the amount of funds available but rather on specific roles and duties, and NV OTS's maintenance of two separate offices for the HSO is not a requirement imposed by NHTSA. However, after considering these comments in light of new BIL requirements, NHTSA is increasing the States' allowance for P & A costs to 18 percent to help offset rising costs and to ensure that States have sufficient resources to fully implement the planning and public engagement requirements in the BIL. The agency expects that this P & A funding increase will lead to fulsome implementation of the new longer-range planning structure created by the BIL and robust public engagement efforts.

GHSA, MN DPS, and NV OTS.

2. Participation by Political Subdivisions (Local Expenditure Requirement) (23 CFR 1300.13(b))

NHTSA is committed to ensuring that local political subdivisions are an integral and valued part of State highway safety programs. Local participants have unique knowledge of the specific safety problems and a close connection to the communities that are ultimately served by the programs funded by the highway safety grants. It is clear that Congress shares this goal, as evidenced by the longstanding statutory requirement that 40 percent of Section 402 grant funds apportioned to a State be expended by the State's political subdivisions to carry out local highway safety programs.

See

23 U.S.C. 402(b)(1)(C). This statutory provision necessarily requires specific administrative effort to ensure that political subdivisions receive their share of Federal highway safety grant funds. The BIL amended the operation of this provision by removing the requirement that the local highway safety programs to be funded be approved by the Governor while retaining the rest of the local expenditure requirement. In response, the NPRM proposed a new framework for this statutory requirement.

GHSA expressed general support for reform of the local expenditure requirement provided it resulted in less burden for States and subrecipients. However, GHSA took issue with NHTSA's view that the BIL amendment nullified one of the existing regulatory avenues for States to demonstrate participation by political subdivisions, stating that political subdivisions should still be allowed to request safety expenditures on their behalf. NHTSA disagrees. The prior construction of the requirement depended on a request by a political subdivision that was connected to an approved local highway safety program. Without that connection, there is no remaining link to demonstrate substantive political subdivision participation. Moreover, the BIL's amendments were not the only impetus for reconceptualizing the regulatory implementation of the local expenditure requirement. As noted in the NPRM, the proposed change was also informed by the new triennial framework for highway safety programs, NHTSA's historical experience administering this requirement, and comments received through the RFC (addressed in the NPRM).

Several commenters

stated that the new process would increase burdens for States and localities by creating unnecessary administrative requirements. Congress' imposition of a local expenditure requirement necessarily adds procedural responsibilities that States must address. In NHTSA's view, active participation in the selection of projects by the citizenry in local jurisdictions is a desirable objective that should be welcomed in efforts to deploy grants to improving highway safety. NHTSA recognizes that this requirement poses some challenges, but believes that the proposed procedures are less burdensome than commenters fear. Below, we walk through these procedures.

DE OHS, GHSA, MN DPS, and NV OTS.

States have three methods to demonstrate that expenditures qualify as local expenditures: (1) direct expenditure by a political subdivision; (2) expenditure on behalf of a subdivision where the political subdivision is involved in the highway safety planning process; (3) expenditure on behalf of a political subdivision where the political subdivision directs expenditure through a documented request.

The first method—direct expenditures—requires no further explanation because it is well-understood by States and political subdivisions and unquestionably falls within the statutory requirement. However, NHTSA has long recognized that in some cases, it may be advantageous for political subdivisions to allow States to expend grant funds on their behalf. This enables smaller political subdivisions that may have fewer resources to direct grant funds toward their highway safety needs and allows political subdivisions, in general, to benefit from the economies of scale that a State-run program can provide. That said, because the statute provides that funds must be expended by political subdivisions, it is incumbent on NHTSA and the States to ensure that there is adequate documentation that the political subdivision was involved in identifying its traffic safety needs and provided input into the implementation of the activity. Following are examples of how a State can demonstrate that expenditures on behalf of a political subdivision qualify as local expenditures.

Under the second method identified above, the State may provide evidence that the political subdivision was involved in the State's highway safety program planning processes. States can incorporate this into existing processes, such as the public participation component of the triennial HSP, the planning process to determine projects for annual applications, or during the State's ongoing program planning processes. For example, a representative of a local school board might attend a virtual public engagement session for the State's triennial HSP planning process and speak to the need for impaired driving educational programs to be provided to students in that district. The input by the school board at that time could simply consist of a broad statement of need for an

educational program related to impaired driving in that district. If the State wanted to determine whether other school districts had a similar need, it could plan a specific virtual public engagement on the need for educational programs in schools and invite all school districts in the State or regions of the State to participate. The State would enter into projects based on the identification of need and implementation notes by the school board during the planning process. Finally, to ensure that the activities implemented meet the needs of the specific political subdivision, the State would obtain written confirmation of acceptance by the school board for the project that the State implements.

Under the third method described above, the State may demonstrate that a political subdivision directed the expenditure of funds through a documented request by the political subdivision for an activity to be carried out on its behalf. As noted in the NPRM, the request need not be a formal application, but must contain a description of the political subdivision's problem identification and a description of how or where the activity should be deployed within the political subdivision. For example, a representative of a town's government could submit a request to the SHSO via letter or email showing that the town has increased traffic crashes associated with a large sporting event held in the area and requesting increased enforcement to be conducted by the State's highway patrol during those events. It might also request that the State carry out an accompanying media campaign leading up to and during those times. If the town government has trouble identifying the data to document the problem, the State may offer technical assistance.

The key in all situations where the State is relying on expenditures on behalf of political subdivisions to qualify as a local expenditure is the connection between the need identified and activity requested by the political subdivision and the project that the State, or another entity, carries out on the political subdivision's behalf.

Some comments suggest a misunderstanding of the fundamental premise of the local expenditure requirement. NV OTS argued that it is too difficult for the State to process and for NHTSA to verify documentation that supports the required political subdivision involvement, and argued that NHTSA should allow States to allocate resources based on problem identification without the burden of proving political subdivision involvement. MoDOT argued that NHTSA should allow statewide programs with local benefit to qualify as local expenditure. However, it was clearly the intent of Congress, sustained over decades, that State highway safety programs ensure that Federal funds make their way into the hands (and decision-making authority) of political subdivisions. The new BIL requirements concerning public input only serve to reaffirm and amplify this interest in greater participation in decision-making, and NHTSA has a responsibility to ensure that this statutory command for local participation is effectively carried out. The statutory requirement is focused on the

expenditure

of funds by political subdivisions, not merely on local benefit.

Several commenters

argued that many localities do not have sufficient resources to participate in the highway safety planning process or to submit a detailed request for expenditures on their behalf and worried that the new requirements would risk losing local participants in State highway safety programs. The requirement for local participation is not inherently burdensome for local participants, and in any event, is an obligation imposed by statute. The State is simply required to obtain identification of need and a request for activities to be conducted, whether during the State's highway safety planning process or as a direct request from the political subdivision. A State could even solicit requests, and provide a template for requests from political subdivisions. Under the BIL, as before, States have a responsibility to ensure that political subdivisions have the ability to participate in the highway safety program. Whether it is at the planning level, via the meaningful public engagement requirement, or through a request that the State execute a project on behalf of a political subdivision, States have many opportunities to work with localities to support their needs and meet the local expenditure requirement. States can and should conduct outreach and provide assistance to locals throughout the planning and project development such processes, and NHTSA is available to assist States in these efforts.

DE OHS, GHSA, MN DPS, and NV OTS.

GHSA requested that NHTA allow groups of localities to request expenditures on their collective behalf. MN DPS explained that in many grants, multiple local agencies partner to conduct activities and that it would be difficult for the State to have each participating political subdivision participate in the triennial HSP planning process. NHTSA notes that the proposed definition of political subdivision adopted in this rule includes associations comprised of representatives of political subdivisions acting in their official capacities. Similarly, a group of localities may submit a joint request for activities that meets the requirements of § 1300.13(b)(3)(ii), so long as it is signed by each locality or a duly authorized representative of the group.

GHSA also noted that States have found more efficient ways of reaching localities than the local expenditure mechanism by using agreements with non-profit entities. NHTSA notes that a State may use an agreement with a non-profit entity to carry out expenditures on behalf of political subdivisions provided there is sufficient documentation under § 1300.13(b)(3) to demonstrate that the political subdivisions were involved in identifying their traffic safety needs and provided input into the implementation of the activity.

Finally, in response to a comment to the RFC, the NPRM noted that State-sponsored communication efforts tied to high visibility enforcement (HVE) campaigns may never qualify as local expenditures. Several commenters

expressed strong disagreement with this position, arguing that media campaigns are an integral part of high visibility enforcement whose benefits extend to localities throughout the State. The agency notes that it is possible for some costs under a program to qualify as local expenditures while other costs do not. Local law enforcement participation in HVE campaigns via enforcement subawards qualifies as a direct expenditure by political subdivisions. States, however, are directly responsible for carrying out the associated statewide advertising campaigns, although they may do so via a contract. Contracts for statewide HVE media campaigns, even if made with political subdivision, do not qualify as local expenditures because they are, by definition, an extension of State performance.

See

2 CFR 200.331. NHTSA has added regulatory text to clarify that direct expenditures for media efforts may be credited to political subdivisions only if those expenditures are made under a subaward from the State. Note that this restriction on media campaigns applies only to

statewide

media efforts associated with HVE campaigns. States are encouraged to enter into subawards with political subdivisions to carry out targeted local media campaigns, and the

costs of such efforts would qualify as local expenditures.

CT HSO, DE OHS, GHSA, and MN DPS.

3. Congressionally Specified Uses of Funds (23 CFR 1300.13(c-g))

The BIL amended the prohibition on funding automated traffic enforcement systems. 23 U.S.C. 402(c)(4). Pamela Bertone urged that laws related to speed camera placement be changed, and also recommended using police officers as “mobile cameras” that write digital citations instead of making a traffic stop. Congress and the States—not NHTSA—have the authority to pass laws, and NHTSA lacks the discretion to compel issuance of “digital citations.” NHTSA has incorporated BIL language that specifically defines automated traffic enforcement systems as a camera and specifically excludes devices operated by law enforcement officers.

See

23 U.S.C. 402(c)(4)(A) and 23 CFR 1300.3.

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

The Section 405 and Section 1906 grant programs provide incentive grants that focus on National priority safety areas identified by Congress. Under this heading, NHTSA responds to comments related to the grants under Section 405—Occupant Protection, State Traffic Safety Information System Improvements, Impaired Driving Countermeasures, Distracted Driving, Motorcyclist Safety, Nonmotorized Safety, Preventing Roadside Deaths, and Driver and Officer Safety Education, as well as the Section 1906 grant—Racial Profiling Data Collection, as applicable.

GHSA reiterated its request under the RFC that NHTSA create a complete qualification checklist for each Section 405 grant program in order to assist States in developing and providing the required information, and clarified that this checklist could be provided as guidance rather than as part of the final rule. The agency again declines to adopt this request. As noted in the NPRM, appendix B is formatted to serve as the application framework for States and provides a list of application requirements at a high level similar to a checklist. However, States remain responsible for reading and complying with the relevant statutory and regulatory text, which contain the full details of application criteria and qualification requirements. A separate checklist could lead States to overlook important aspects of application requirements.

A. General (23 CFR 1300.20)

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

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

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

C. Occupant Protection Grants (23 CFR 1300.21)

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

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

The BIL streamlined the application requirements by allowing States to submit a certification regarding the State traffic records coordinating committee (TRCC) and the State traffic records strategic plan and removing the FAST Act requirement that States have an assessment of their highway safety data and traffic records system. States must still submit documentation demonstrating a quantitative improvement in relation to a significant data program attribute of a core highway safety database. The BIL removed the maintenance of effort requirement that was in effect under the FAST Act and expanded the allowable uses of funds under this grant program.

AAMVA expressed general support for this grant program, including the changes made by the BIL and proposed in the NPRM. AAMVA sought clarification regarding how a State can quantify a previously unavailable data element as a contributing element to a program that previously did not use that data, and sought guidance on how to incorporate new data to augment safety programs. First, NHTSA encourages States to consider making improvements to the completeness or integration of their traffic safety information systems and specifically points States to two NHTSA publications that set forth model minimum data elements in State traffic safety information systems: the Model Minimum Uniform Crash Criteria (MMUCC) and the Model Inventory of Roadway Elements (MIRE). While these publications do not list every single data element that may be useful for a State highway safety program, they provide an important set of data elements for the crash and roadway data systems, respectively, and are a strong tool for greater uniformity between and among State data systems. Second, NHTSA confirms that States may add a new, not previously included, data element to demonstrate the required quantitative improvement for their Section 405(c) applications. Depending on the specific circumstances of the improvement, a State may be able to demonstrate a baseline period consisting of no (or “zero”) data element paired with a performance period showing either full or partial incorporation of that data element into the system. These clarifications do not require amendments to the regulatory text, so NHTSA makes no changes to the proposed language.

E. Impaired Driving Countermeasures Grants (23 CFR 1300.23)

The BIL made targeted amendments to the impaired driving countermeasures grant programs, with the most significant changes occurring to the interlock grant program, including allowing additional means of compliance and a use of funds section that adds several funding categories.

1. Qualification Criteria for Mid-Range and High-Range States (23 CFR 1300.23(e) and 23 CFR 1300.23(f))

In the NPRM, NHTSA explained the basic requirements for States to receive an impaired driving countermeasures grant. The qualifying criteria in the BIL remain focused on the State's average impaired driving fatality rate and a determination of whether the State qualifies as a low-, mid-, or high-range State. For low-range States, the agency's proposal provides for the submission of assurances, while States with higher fatality rates are required, at a minimum, to establish an impaired driving task force and develop and submit a statewide impaired driving plan. The agency continues the streamlined aspects of the application process, noting that all that is required

is the submission of a single document—the statewide impaired driving plan (in addition to any required assurances and certifications).

The agency explained in the NPRM that it had reviewed the prior implementation of these terms and determined that some changes were necessary to ensure that States with higher average impaired driving fatality rates continue to take a sufficiently comprehensive approach. For the impaired driving plan, required for mid- and high-range States, the proposal specified that the plan should continue to be organized in accordance with NHTSA's Uniform Guidelines for State Highway Safety Programs No. 8—Impaired Driving.

The proposal reinforced the concept that overall program management and strategic direction are features of the plan, as well as community engagement and involvement in coalitions. Although States are free to address other related areas, the impaired driving plan must consist of sections covering program management and strategic planning; prevention, including community engagement and coalitions; criminal justice systems; communications programs; alcohol and other drug misuse, including screening, treatment, assessment and rehabilitation; and program evaluation and data. The agency received no comments on the proposed changes to the impaired driving plan.

One commenter provided an out-of-scope comment for this rulemaking requesting that the agency revise Guideline No. 8 to be more inclusive of behavioral health providers with more focus on the treatment of alcohol and substance abuse. The agency notes the information provided and will consider it as part of any effort to revise Guideline No. 8.

As part of its proposal, the agency also revised the requirements associated with the statewide impaired driving task force by identifying additional key members, explaining that the fields identified help ensure that the required impaired driving plans remain comprehensive. In addition to key stakeholders from the State highway safety office, State and local law enforcement, and representatives of the criminal justice system, the agency's proposal added stakeholders from the following groups to align with the components of the impaired driving plans: public health, drug-impaired driving countermeasures (such as a DRE coordinator), and communications and community engagement.

In response to these proposed additions, the agency received comments from GHSA, the Coalition of Ignition Interlock Manufacturers, and Mitchell Berger. GHSA thought the inclusion of the additional groups was “arbitrary” and identified other groups that could be included as part of a comprehensive task force requirement. GHSA also stated that the change to increase the task force membership was not dictated by the statute and that the agency should show more deference to States on task force membership. Generally, the agency's proposal does defer to States on task force membership and the process by which the task force creates the impaired driving plan. NHTSA's intent was to identify broad stakeholder groups, without imposing other requirements such as experience or background for individuals or even the process by which the State identifies a particular individual to a group. In a few areas, the proposal used terms specific to a particular skillset such as an expert or specialist. Since our intent was to identify broad groups only, these terms have been removed in the final rule. § 1300.23(e)(1)(ii)(E) and § 1300.23(e)(1)(ii)(F).

The agency also continues to defer to the States on the process used to create the plan itself. However, as the agency explained, it reviewed the plan and task force requirements under the BIL to make sure they align with each other and keep pace with the evolving nature of impaired driving problems across the nation. The agency is concerned about the increasing number of impaired driving fatalities, including those that are associated with a rise in drug impairment. When the task force requirement was originally implemented nearly 10 years ago, the agency focused mostly on ensuring that members of law enforcement and the criminal justice system were represented. We understand now that other disciplines must be part of the process. As the agency explained in its proposal, the newly identified groups align with a specific part of the required impaired driving plan—

i.e.,

communications and community engagement respond to the plan requirements on communications and prevention; public health aligns with alcohol and drug misuse; and drug impaired driving countermeasures align with alcohol and drug misuse and criminal justice systems. Although the agency identified specific groups as a minimum baseline, States are free to add other groups.

The Coalition of Ignition Interlock Manufacturers requested that their members be considered as a group for inclusion on task forces as opposed to making a more general reference to ignition interlocks. With the exception of the State highway safety office, the agency has not identified specific groups or organizations for inclusion on task forces under these requirements and we decline to take that approach now. We believe it is more appropriate to maintain flexibility and identify only broad stakeholder areas from which the State are free to select individual members. In addition to the specific areas identified in the requirement, as we have noted in the past, States may consider adding individual members from areas representing 24-7 sobriety programs, driver licensing, data and traffic records, ignition interlock, treatment and rehabilitation, and alcohol beverage control. This is not meant to be an exhaustive list, however, and States retain significant discretion to determine the groups to be represented on the required task force, subject only to ensuring that the specified areas are covered.

Mitchell Berger urged that the task force requirements be revised to include “behavioral health providers,” such as “psychiatrists, child and adolescent psychiatrists, addiction psychiatrists, addiction medicine specialists, psychologists, licensed clinical social workers, licensed professional counselors, and marriage and family therapists.” He stated that this type of expertise is necessary to address the parts of an impaired driving plan that focus on prevention, screening and treatment. In general, NHTSA agrees that a State should consider adding such expertise to its task force, provided the focus of the task force remains on confronting the problems of impaired driving. In recognition of the value of this and similar expertise, the NPRM includes public health as one of the broad groups that must be represented in some way on the task force, while stopping short of prescriptive language to afford flexibility.

GHSA sought clarification about whether the HSP is the appropriate reference for an Appendix B provision that covers high-range States and their responsibility to submit updated information on an annual basis in the HSP. We confirm that the proposal inadvertently retained the reference to the HSP from the prior rule. The agency has revised the reference to indicate that the updated information must be provided in the annual grant application, consistent with the statutory requirement.

2. Grants to States With Alcohol-Ignition Interlock Laws (23 CFR 1300.23(g))

The NPRM explained that the BIL continued a grant from prior authorizations providing grant funds to

States that adopted and enforced mandatory alcohol-ignition interlock laws for all individuals convicted of a DUI offense. In addition to the existing qualification criterion, the BIL added two alternate methods of compliance, allowing a State to receive a grant if it restricts driving privileges of an individual convicted of driving under the influence of alcohol or of driving while intoxicated until the individual installs on each motor vehicle registered, owned, or leased an ignition interlock for a period of not less than 180 days; or, separately, if the State requires an individual that refuses a test to determine the presence or concentration of an intoxicating substance to install an interlock for a period of not less than 180 days. The latter criterion also requires the State to have a compliance-based interlock removal program that requires an individual convicted of a DUI to have an interlock installed for not less than 180 days and to serve a minimum period of interlock use without program violations before removal of the interlock. 23 U.S.C. 405(d)(6)(ii)-(iii). Due to some confusion over preamble language in the NPRM, the Coalition of Ignition Interlock Manufacturers and Responsibility.org sought confirmation that the agency's proposal implements three separate compliance methods for the grant. NHTSA confirms that, consistent with the BIL, the NPRM proposes three ways for a State to achieve compliance. In response to these comments, the agency has reviewed its proposal and determined that no changes to the regulatory text are necessary.

3. Use of Grant Funds (23 CFR 1300.23(j))

As noted in the NPRM, the BIL specified the eligible uses of grant funds and the agency's proposal included them without change. The agency received two comments regarding the use of grant funds. The Coalition of Ignition Interlock Manufacturers stated that “impaired driving enforcement is an activity the agency should aggressively support and fund . . . [and] reject any attempts to redirect funding to other activities.” The eligible uses of these grant funds under BIL are broader than impaired driving enforcement. States may use impaired driving countermeasures grant funds for any of the purposes identified in the statute. Consistent with its longstanding approach, the agency declines to prioritize the uses and States may use grant funds for any activities that meet applicable requirements.

In developing its proposal, the agency responded to a comment regarding a new BIL provision that allowed grant funding to be used to provide compensation for a law enforcement officer to carry out safety grant activities while another law enforcement officer is temporarily away receiving drug recognition expert training or participating as an instructor in drug recognition expert training (the “backfill” provision). The comment sought expansion of the provision to compensate officers who are not involved in grant eligible activities. As the agency explained in the NPRM, the backfill provision allows police agencies to send officers to training without sacrificing overall levels of service, but the law expressly limits compensation to law enforcement officers that carry out

highway safety grant activities.

23 U.S.C. 405(d)(4)(B)(iii).

Responsibility.org

opposed the approach of limiting funding to compensating officers carrying out safety grant activities. The commenter urged “NHTSA to reassess the legislative intent authorizing the use of grant funds to allow for backfills to include both safety and non-safety grant activities.”

Where the statute is clear, as it is in this case, the agency does not have authority to follow another approach or expand the statutory language, which is what the comment asks the agency to do. Accordingly, we decline to make this change in the final rule. In NHTSA's view, Congress limited the backfill provision to traffic safety activities so that NHTSA grant funds remain connected to their traffic safety purpose. We note that the traffic safety activities that would allow for compensation need not be limited to alcohol impaired driving countermeasure activities under Section 405d; any NHTSA-funded traffic safety activities may be eligible. However, because the statute hinges the ability to backfill on whether the officer to be replaced is out for DRE training or to serve as a DRE instructor, it is likely in the majority of instances that backfill compensation would apply to impaired driving activities.

F. Distracted Driving Grants (23 CFR 1300.24)

As noted in the NPRM, few States qualified for a distracted driving grant under the statutory requirements of MAP-21 and the FAST Act. The BIL resets the distracted driving incentive grant program by significantly amending the statutory compliance criteria. The statute establishes two types of distracted driving grants—distracted driving awareness on the driver's license examination and distracted driving laws. A State may qualify for both types of distracted driving grants. As proposed in the NPRM, a State may qualify for a distracted driving law with four different types of laws: (1) prohibition on texting while driving; (2) prohibition on handheld phone use while driving; (3) prohibition on youth cell phone use while driving; and (4) prohibition on viewing a personal wireless communications device while driving.

In response to the NPRM, NHTSA received only two comments, both from GHSA regarding technical corrections to Part 6 of appendix B, under the heading “Prohibition on Viewing Devices While Driving”. The agency accepts those technical corrections, removing the apostrophe from “driver's” and aligning the legal citation requirement to match the statutory language to read “prohibition on viewing devices while driving”. In addition, NHTSA makes an additional technical correction to Part 6 of appendix B—removing the requirement to identify exemptions for State laws banning viewing devices while driving. This correction aligns Part 6 of appendix B with the regulatory text in § 1300.24(d)(4)-(5).

G. Motorcyclist Safety Grants (23 CFR 1300.25)

Under BIL, Congress amended the Motorcyclist Safety Grants by adding a new criterion for a State to qualify for a grant if it has a helmet law that requires the use of a helmet for each motorcycle rider under the age of 18, and made a minor terminology change to “crash” from accident in two paragraphs. The NPRM proposed amendments to incorporate these changes and to update references for the new triennial framework. NHTSA received no comments related to the motorcycle safety grants and therefore proposes no further changes to the regulatory text in this final rule.

H. Nonmotorized Safety Grants (23 CFR 1300.26)

The BIL changed the nonmotorized safety grant program with a revised definition of nonmotorized road user to include, not just pedestrians and bicyclists, but also an individual using a nonmotorized mode of transportation, including a bicycle, scooter, or personal conveyance and an individual using a low-speed or low-horse powered motorized vehicle, including an electric bicycle, electric scooter, personal mobility assistance device, personal transporter, or all-terrain vehicle. In addition, the BIL made significant amendments to the use of funds for the

nonmotorized safety grant program, providing States with additional flexibility to use behavioral safety countermeasures that will best address the nonmotorized road user problem, both at the State level and at the local level.

NHTSA received three comments regarding the nonmotorized safety grants. GHSA and the League of American Bicyclists both commented on the requirement to identify projects and subrecipients in the annual grant application. In the NPRM, the agency proposed changing the self-certification as the application for a nonmotorized safety grant that existed under the previous regulation and requiring States to submit a list of project(s) and subrecipient(s) information in the fiscal year of the grant consistent with § 1300.12(b)(2). NHTSA proposed this change to align the application requirements with the other highway safety grants. The League of American Bicyclists agreed with the proposed change stating that this information would improve understanding of funding uses, facilitate comparisons and best practices, and align with other grant programs. GHSA agreed that the proposal aligned with other application requirements, but requested further justification for the additional burden this would impose on States because there were no changes in the underlying statute.

NHTSA disagrees that there were no changes to the underlying statute. Not only did the statute change the definition of nonmotorized user, the basis for determining eligibility for a grant, but it also significantly expanded the eligible use of grant funds for a nonmotorized safety grant. Previously, the FAST Act limited the use of funds to activities related to

State

traffic laws on pedestrian and bicycle safety, such as law enforcement training, mobilizations and campaigns, and public education and awareness programs. However, BIL's broadened eligible use of funds provide States with the flexibility to use behavioral safety countermeasures that will best address the nonmotorized road user problem, both at the State level and at the local level. In addition to aligning with the other grant application requirements, project-level details allow NHTSA to evaluate whether the submitted projects are sufficient to reasonably carry out the countermeasure strategies in the State's triennial HSP and to check for high-level regulatory compliance issues. This information is also be needed to identify projects against later submitted vouchers. Accordingly, NHTSA declines to amend the grant application requirement set forth in the NPRM in response to GHSA's comment.

The League of American Bicyclists also commented that NHTSA should publish or share information on the use of nonmotorized safety grant funds for educational efforts on the interaction between the built environment and behavior. The BIL requires NHTSA to establish a public website that publishes each State's triennial HSP, performance targets, and evaluation of a State's achievement of performance targets.

See

23 U.S.C. 402(n)(1). The statute also requires that the public be provided a means to search the public website for “program areas and expenditures”.

See

23 U.S.C. 402(n)(2)(B)(III). Consistent with this requirement, NHTSA expects to publish information about State expenditures supporting the triennial highway safety plan, including grant expenditures from Section 405 grants, on this public website. No changes to the final rule are necessary in response to this comment.

I. Preventing Roadside Deaths Grants (23 CFR 1300.27)

The BIL created a new preventing roadside deaths grant program, authorizing grants to prevent deaths and injuries from crashes involving motor vehicles striking other vehicles and individuals stopped at the roadside.

HAAS Alert expressed concern that countermeasure strategies for 23 U.S.C. 405(h) are not available in NHTSA's

Countermeasures That Work

and noted that it is unclear when the guidance will be updated to include a section related to preventing roadside deaths. It recommended that NHTSA offer guidance on this program or offer amended or separate guidance as soon as possible to guide State applicants. HAAS Alert also noted that, due to the limited guidance on countermeasures, NHTSA should minimize administrative burden to avoid constricting States and permit maximum flexibility.

As with any new traffic safety program, proven and effective countermeasures may be unavailable at the nascent stages. NHTSA encourages States to use data-driven, innovative approaches, and will support a State that seeks to implement a preventing roadside deaths grant. NHTSA's traffic safety grant programs provide flexibility for States to run programs that respond to their problem identification; however, a State should design a new program that is based on the provisions of the authorizing statute and implementing regulations for effective execution and sustained success.

1. Definitions (23 CFR 1300.27(b))

The MN DPS recommended that NHTSA increase flexibility by using broad language and terms for the preventing roadside deaths grants, taking into consideration the continually evolving technology. Similarly, GHSA recommended that the definition of “digital alert technology” be further generalized to better reflect the statute (which does not specify that alerts pertain to vehicles, that the vehicles be stopped at the roadside, or the specific means by which a motorist would receive an alert) and to anticipate future potential technological developments. HAAS Alert suggested that “digital alert technology” be expanded to include “roadside professionals” other than first responders (State-owned, contracted, or funded fleets and roadside workers like roadside assistance/towing providers, construction and work zone crews, school busses, snowplows, etc.). HAAS Alert added that these “roadside professionals” face the same risk as first responders, and drivers must slow down and move over in nearly every State.

NHTSA agrees that the definition of “digital alert technology” should not limit the technology to a specific type or be limited to certain locations. By removing such potential limitations, States will have the flexibility to develop innovative strategies to prevent roadside deaths. Accordingly, NHTSA is amending the definition as follows: “Digital alert technology means a system that provides electronic notification to drivers.” Note that the agency removed the term “first responders” since the statutory language specifically addresses the capability of the technology to reach these road users. We decline to expand the definition to include “roadside professionals” as proposed by HAAS Alert, to avoid appearing to single out particular categories of individuals.

GHSA commented that NHTSA does not need a definition of “public information campaign” because it is a commonly understood term similar to other terms NHTSA did not define, such as “educating the public,” “paid media,” “earned media,” “education campaign,” “advertising,” and “public awareness.” In contrast to GHSA, HAAS Alert requested that NHTSA specifically clarify that the definition of “public information campaign” must include digital alert technology, because HAAS Alert contends that the technology is itself a messaging delivery mechanism for traffic safety issues.

After consideration of these comments, NHTSA retains the definition of “public information campaign” as proposed in the NPRM. In our experience, “public information campaign” is not a commonly understood term and does not have a uniform meaning among States. NHTSA believes that a definition will provide a baseline for States that will facilitate the education of motorists when using funds pursuant to paragraph 1300.27(e)(2). We also believe that HAAS Alert's proposal to compel digital alert technology would limit States' broad flexibility to educate the public as contemplated by Congress. If NHTSA required a specific mechanism in the deployment of public information campaigns, it would unduly limit options, curtail innovation, and potentially reduce the reach of campaigns to educate the public.

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

GHSA commented that the proposal's detailed requirements for the plan that States would be required to submit are similar to the requirements that States would have to meet under sections 1300.11(b) 1, 3 and 4. GHSA proposes that if a State establishes this information and underpins the basis of a roadside safety program in its triennial HSP, it should be able to refer back to the triennial HSP. GHSA contends this is an approach similar to the approach for other Section 405 grant programs, with the project information included in the annual grant application. The MN DPS echoed these comments.

NHTSA's proposed approach for a plan that includes minimum requirements separate from the triennial HSP is consistent with the statute and other 405 grant programs. To obtain a preventing roadside deaths grant, a State must submit annually a plan that describes how the State will use the grant funds.

See

23 U.S.C. 405(h). Consistent with the statute, NHTSA believes it is appropriate for a State to provide minimum information in the annual grant application, consistent with 23 CFR 1300.12(b)(3), to permit NHTSA to determine whether a State will use the funds appropriately for the fiscal year of the grant. Other 405 grants, such as Occupant Protection, State Traffic Safety Information System Improvement, and Motorcyclist Safety also require the submission of specific performance targets and countermeasure strategies without reference to the triennial HSP. While we have made some minor, non-substantive editorial changes, NHTSA adopts section 1300.27(c) as proposed.

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

NHTSA received three comments related to the use of preventing roadside deaths grant funds from GHSA, the MN DPS and HAAS Alert.

GHSA recommended that NHTSA address whether 1300.27(e)(5) (funding efforts to increase the visibility of stopped and disabled vehicles) authorizes States to purchase equipment or safety items for public distribution as defined in NHTSA's 2016 Guidance on Use of NHTSA Highway Safety Grant Funds for Certain Purchases,

such as vehicle reflectivity gear. The MN DPS requested further clarification about the allowable use of funds for all equipment purchases under the grant.

Publicly available on NHTSA's website at

https://www.nhtsa.gov/laws-regulations/guidance-documents

NHTSA declines to address authorization for purchase of specific items of equipment under the preventing roadside deaths grant generally and, specifically, under section 1300.27(e)(5) at this time. As mentioned previously in this preamble, NHTSA 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 consider the comments from GHSA and MN DPS at that time. Until that time, however, we note that the 2016 guidance provides that States may purchase items whose

sole purpose

is to improve highway safety, provided those items are specifically identified in a project agreement and based on problem ID. All equipment purchases must be necessary for the purpose of a project that is based on problem identification, performance measures and targets, and countermeasure strategies, and must be consistent with the provisions in 2 CFR part 200 and 1201, and 23 CFR 1300.31.

HAAS Alert requested that NHTSA amend or remove three types of eligible use (public education, enforcement efforts, and State records) since they are already eligible for funding under other 402 and 405 programs. HAAS Alert speculates that States will allocate their funding to already-existing efforts instead of innovative life-saving equipment. HAAS Alert also commented that less emphasis should be given to enforcement as a traffic safety countermeasure. NHTSA declines to amend, deemphasize, or remove the three types of eligible uses identified in 1300.27(e)(2)-(4), as those three uses are specifically authorized by the statute.

J. Driver and Officer Safety Education Grants (23 CFR 1300.28)

The BIL created a new driver and officer safety education grant program, authorizing incentive grants to States that enact and enforce laws or adopt and implement programs that include certain information on law enforcement practices during traffic stops in driver education and driving safety courses or peace officer training programs, or that have taken meaningful steps to do so. 23 U.S.C. 405(i).

The BIL provides that States may qualify for a driver and officer safety education grant in one of two ways: (a) with a current law or program that requires specified information to be provided in either driver education and driving safety courses or peace officer training programs (

i.e.,

law or program State); or (b) for a period not to exceed 5 years, by providing proof that the State is taking meaningful steps towards establishing such a law or program (

i.e.,

qualifying State). 23 U.S.C. 405(i)(4). In the NPRM, NHTSA identified an incorrect reference within the proposed regulatory text, and has amended § 1300.28(g)(3) to provide that any funds remaining after the funding limitation in § 1300.28(g)(2) is applied to qualifying States will be redistributed to States that qualify for a grant under paragraph (d) (

i.e.,

law or program States).

The League of American Bicyclists requested that NHTSA make available to the public any documentation, including curricula, that States submit as part of their application for a driver and officer safety education grant so that the public can analyze the documents provided. They also requested that NHTSA publish a report about the documents submitted with applications for this grant. NHTSA will evaluate whether to publish these materials. NHTSA does not intend to publish a report on the documentation provided in State's application materials at this time, but will keep this request in mind as the needs of the program develop.

K. Racial Profiling Data Collection Grants (23 CFR 1300.29)

The BIL continues the intent of the Section 1906 grant program, first established under Section 1906 of SAFETEA-LU, which is to encourage States to enact and enforce laws that prohibit the use of racial profiling in traffic law enforcement and to maintain and allow public inspection of statistical information regarding the race and ethnicity of the driver for each motor vehicle stop in the State. The BIL revised several aspects of the Section 1906 Program, including by removing

the limitation that a State may not receive a grant by providing assurances for more than 2 fiscal years and amending the limitation on the maximum amount of funds a State may receive under the grant.

The BIL also expanded the allowable uses of the grant funds awarded under the Section 1906 Program by allowing States to expend grant funds to develop and implement programs, public outreach, and training to reduce the impact of traffic stops. The League of American Bicyclists expressed appreciation for the expansion of allowable uses of funds and requested that NHTSA provide additional guidance on how States should differentiate between traffic stops and pretextual stops for the purposes of this grant program. NHTSA never condones a pretextual stop or racial profiling and, through the 1906 grant program, works to encourage States to enact and enforce laws that prohibit racial profiling in traffic law enforcement. When it comes to statistical information regarding the race and ethnicity of the driver in motor vehicle stops, the statute does not differentiate between stops that are pretextual in nature and those that are not. Indeed, the purpose of maintaining and allowing public inspection of data gathered about the race and ethnicity of drivers in

all

motor vehicle traffic stops is a step towards better understanding the problem that needs to be solved.

The League of American Bicyclists also suggested that the new, dedicated technical assistance for the Section 1906 grant program be conducted by a third-party, reasoning that it would provide more insight into best practices, barriers to State use of grant funds, or other issues. Annually, the BIL makes available up to 10 percent of Section 1906 grant funds to provide technical assistance to States. NHTSA is committed to providing technical assistance to States as they work to implement traffic safety programs, including Section 1906, and has many years of experience doing so. As part of this effort, NHTSA is currently in the process of procuring contract support, which may include assistance with information exchanges to discuss needs and opportunities, a repository of best practices, and a suite of assistance tools.

VII. Administration of Highway Safety Grants, Annual Reconciliation, and Non-Compliance (Subparts D Through F)

A. Amendments to the Annual Grant Applications (23 CFR 1300.32)

The CT HSO reiterated its prior comment expressing concern about the amount of time it currently takes NHTSA to approve amendments to the HSP and asked that NHTSA consider changes to requirements for amendments to the annual grant application, such as potentially setting a funding threshold for requiring approval. NHTSA appreciates the feedback and will continue to strive to respond promptly to States. We acknowledge that the new requirement for States to submit project-level information in the annual grant application and to update it throughout the year will likely increase the number of amendments that States need to make and that Regional offices need to approve. In order to reduce this pressure, NHTSA has amended the regulatory language to provide that States may amend certain project level information in the annual grant applications (23 CFR 1300(b)(2)(iii-vii)) without the approval of the Regional Administrator unless prior approval is otherwise required under 2 CFR 200.407. Examples of amendments that require approval under 2 CFR 200.407 are specific costs related to equipment and changes to the amount of Federal funds that are significant enough to change the scope of the effort. The agency will provide further guidance.

With this change, States may amend the project agreement number, subrecipient information, amount of Federal funds, eligible use of funds, and whether the costs are P&A costs. We recognize that details such as these may evolve as a State finalizes implementation of its program, without affecting the fundamental nature and purpose of a project. However, any such changes must be consistent with the project name, purpose, and description, the Federal funding source(s), the countermeasure strategy for programming funds identified for the project, and, as noted earlier, not otherwise require approval under 2 CFR 200.407. NHTSA has also made edits to the title of this regulatory provision and conforming amendments to 23 CFR 1300.23(e)(2) to reflect that not all amendments require approval by the Regional Administrator.

B. Vouchers and Project Agreements (23 CFR 1300.33)

The NPRM proposed that, in addition to the information currently required to be in a voucher, States also provide the eligible use(s) of funds that the voucher covers. 23 CFR 1300.33(b)(3). This addition was intended to ensure that NHTSA has the information necessary to understand the costs that are being vouchered for prior to approving reimbursements and to assist subsequent audits and reviews. GHSA commented that this addition would create substantial administrative burdens for States because they would need to update internal systems in order to add this information. GHSA also noted that this information is already required for the project information that States must include, and update, in the annual grant application.

Vouchers allow both the State and NHTSA to identify details about the expenditures for which a State is seeking reimbursement and to ensure that the expenditures match the project information provided in the State's annual grant application and meet Federal requirements. A voucher is separate and distinct from the project list in the annual grant application because it is tied to specific expenditures for which the State seeks reimbursement at a point in time, and it serves as the official request for reimbursement of expenses. Moreover, at the time of voucher submission, a State must necessarily be deemed to know, with certainty, the expenses for which it is submitting the voucher to the Federal Government. NHTSA therefore does not agree that it would pose a substantial burden for States to provide such information and declines to remove “eligible use(s)” of funds from the required voucher information. The information is necessary to ensure a proper audit trail.

We also, as explained above, made a minor edit to the regulatory text to reflect that not all amendments require approval by the Regional Administrator. Finally, we made a technical amendment to ensure consistent terminology related to the requirement for local expenditure.

C. Annual Report (23 CFR 1300.35)

As explained in the NPRM, consistent with OMB rules that apply to all Federal grants,

NHTSA has long required each State to submit an annual report providing performance and financial information on the State's activities during the grant year. 23 CFR 1300.35. The BIL codified the requirement and specified that the annual report must include an assessment of the State's progress in achieving performance targets identified in the triennial HSP and a description of the extent to which that progress is aligned with the State's triennial HSP. The BIL also provided that the State must describe any plans to adjust the strategy for programming funds in order to achieve performance

targets, if applicable.

See

23 U.S.C. 402(l)(2).

Currently implemented at 2 CFR 200.328 and 200.329 (financial and performance reporting, respectively).

GHSA, supported by the MoDOT, reiterated its prior comment requesting that NHTSA limit the annual report to the components explicitly required by the BIL. As NHTSA explained in the NPRM, the annual report serves many purposes for NHTSA's grant program, including implementing government-wide grant reporting rules issued by OMB. The annual report not only satisfies the requirements of the BIL, but it also serves as the State's required annual performance report, consistent with 2 CFR 200.329. It also satisfies the government-wide requirement that Federal award recipients must submit annual financial reports.

See

2 CFR 200.328.

Finally, the contents of the annual report foster transparency in the results achieved with taxpayer funds.

NHTSA has an exemption that allows the agency to use its own financial reporting, instead of commonly used and OMB-approved Federal Financial Report. 2 CFR 1200.327.

NHTSA sought comment in the NPRM on whether a mandatory template for the annual report would be helpful for States. GHSA stated that the development of annual reports is a longstanding practice that would not benefit from a mandatory template. MN DPS argued that States should be allowed to continue to use their existing templates for annual reports. Based on these comments, NHTSA will not develop a mandatory template for the annual report, but cautions that, while States are welcome to use their own templates, an existing template based on the annual report requirements under the FAST Act will not satisfy the requirements for an annual report under this regulation and will need to be updated. Similar to other grant program submissions, NHTSA expects that the e-grant system that the agency plans to develop may provide a uniform submission format for this requirement in the future.

GHSA, MN DPS, and MoDOT recommended removing the proposed requirement that the annual report include a description of how the projects funded under the prior year annual grant application contributed to meeting the State's highway safety performance targets, and instead only require reporting of overall statewide performance progress. They argued that there is no legal basis to require a project-by-project analysis and that to do so would be burdensome because States have hundreds of individual project agreements. NHTSA agrees that it is not necessary for States to report progress on each project separately, but that the State's assessment must nonetheless cover all activities (which may consist of a group of related projects) implemented by the State during the grant year, including projects carried out via subaward(s). We have amended the regulatory text to clarify that the State's performance assessment must include an analysis of all State activities. § 1300.35(a)(1)(ii). While States must assess the how all projects contributed to meeting the State's performance targets, they may do so by grouping related projects together into a single activity for assessment. Government-wide grant rules require that subrecipients submit performance reports to the State within 90 days of the end of the performance period. 2 CFR 200.329(c)(1). This deadline is intentionally set 30 days prior to the 120-day deadline for State performance reporting so that those results may be incorporated into the overall analysis conducted by the State.

GHSA noted that the proposal requires States to provide an explanation in both the annual grant application and the annual report of how the State plans to adjust countermeasure strategies to achieve performance targets if the State has not met or is not on track to meet those targets. It acknowledged that this duplication is based on the requirements of the BIL, but asked that NHTSA minimize duplication by allowing for high-level strategic planning in the annual report, with project-level plans in the annual grant application. As GHSA acknowledged, the BIL requires States to explain plans to adjust countermeasure strategies in both the annual report and annual grant application. NHTSA does not have discretion to ignore either statutory requirement. However, the two requirements are distinguishable as the State is required to provide

plans to adjust

the countermeasure strategy for programming funds in the annual report, but then to explain how the countermeasure strategy for programming funds was

actually adjusted

in the annual grant application. States have the flexibility to change or adjust their plans in the time between the annual report and the annual grant application, and the nature of their reporting in each of these documents should reflect these nuances.

GHSA provided several arguments for condensing or streamlining the activity report section of the annual report. GHSA requested that NHTSA link the triennial HSP, annual grant applications, and annual reports through implementation of an e-grants system, not through duplicative reporting requirements. Both GHSA and MN DPS requested that NHTSA avoid duplicative reporting requirements and noted that some of the requirements in the activity report duplicate requirements in the annual grant application or vouchers. As explained in more detail below, NHTSA's intent in this rulemaking is to implement the BIL requirements, which include a strong link between the triennial HSP, annual grant applications, and annual reports, while avoiding unnecessary duplication.

GHSA specifically pointed to duplicative project information reporting that it argued is proposed in both 23 CFR 1300.12(b)(2), 23 CFR 1300.33(b) and 23 CFR 1300.35(b)(1)(i), and requested that NHTSA remove the requirement about project information from the annual report and instead require States only to provide an explana

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