Uniform Procedures for State Highway Safety Grant Programs

AGENCY:

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

ACTION:

Notice of proposed rulemaking.

SUMMARY:

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

DATES:

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

ADDRESSES:

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

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

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

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

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

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

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

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

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

FOR FURTHER INFORMATION CONTACT:

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

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

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. Comments From the Public Meeting and Request for Comments

III. General Provisions

IV. Triennial Highway Safety Plan and Annual Grant Application

V. National Priority Safety Program and Racial Profiling Data Collection

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

VII. Request for Comments

VIII. Regulatory Analyses and Notices

I. Background

We face a crisis on our roadways. NHTSA projects that an estimated 42,915 people died in motor vehicle crashes in 2021. This projection is the largest annual percentage increase in the history of the Fatality Analysis Reporting System. Projections for the first quarter of 2022 are even bleaker; an estimated 9,560 people died in motor vehicle crashes during this period. If these projections are confirmed, this will be the highest number of first-quarter fatalities since 2002. Behind each of these numbers is a life tragically lost, and a family left behind. This crisis is urgent and preventable. NHTSA is redoubling our safety efforts and asking our State partners to join us in this critical pursuit. The programs to be implemented under today's rulemaking are an important part of that effort. Now, more than ever, we all must seize the opportunity to deliver accountable, efficient, and data-driven highway safety programs to save lives and reverse the deadly trend on our Nation's roads.

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

• Maintenance of Effort—Removed the maintenance of effort requirement for the Occupant Protection, State Traffic Safety Information System Improvements Grants, and Impaired Driving Grants;
• Occupant Protection Grants—Expanded allowable uses of funds and specified that at least 10% of grant funds must be used to implement child occupant protection programs for low-income and underserved populations;

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

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

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

• 24-7 Sobriety Programs Grants—Amended allocation formula;
• Distracted Driving Grants—Amended definitions, changed allocation formula, and amended requirements for qualifying laws;

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

• State Graduated Driver Licensing Incentive Grants—Discontinued grant;
• Nonmotorized Safety Grants—Amended the definition of nonmotorized road user and expanded allowable uses of funds;
• Preventing Roadside Deaths—Established new grant; and
• Driver and Officer Safety Education—Established new grant.

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

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

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

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

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

II. Comments From the Public Meeting and Request for Comments

In response to the RFC, the following submitted comments to the public docket on www.regulations.gov: Aaron Katz; American Association of State Highway and Transportation Officials (AASHTO); Accident Scene Management, Inc.; Advocates for Highway & Auto Safety (Advocates); Amado Alejandro Baez; American Ambulance Association; American College of Surgeons, Committee on Trauma; Art Martynuska; Brandy Nannini (on behalf of both Responsibility.org and National Alliance to Stop Impaired Driving); Brian Maguire, Scot Phelps, Daniel Gerard, Paul Maniscalco, Kathleen Handal, and Barbara O'Neill (Brian Maguire, et al.); California Office of Traffic Safety (CA OTS); Center for Injury Research and Prevention at Children's Hospital of Philadelphia (CIRP); Connecticut Highway Safety Office (CT HSO); Covington County Hospital Ambulance Service; David Harden; Drew Dawson; Emergency Safety Solutions, Inc. (ESS, Inc.); Florida Department of Health, Bureau of Emergency Medical Oversight (FL DOH); Governor's Highway Safety Association (GHSA); Haas Alert; Institute for Municipal and Regional Policy at the University of Connecticut (IMRP); International Association of Emergency Medical Services Chiefs (IAEMSC); International Association of Fire Chiefs (IAFC); Joshua Snider; Kathleen Hancock; League of American Bicyclists; Leigh Anderson; Leon County, Emergency Medical Services; Lorrie Walker; Louis Lombardo; Louisiana Bureau of Emergency Medical Services; Louisiana Highway Safety Commission (LA HSC); Love to Ride; Mari Lynch; Minnesota Department of Public Safety (MN DPS); National Association of City Transportation Officials (NACTO); National Association of Emergency Medical Technicians (NAEMT); National Association of State 911 Administrators (NASNA); National Association of State Emergency Medical Services Officials (NASEMSO); National Safety Council (NSC); National Sheriffs' Association; New York State Governor's Traffic Safety Committee (NY GTSC); Oregon Department of Transportation Safety Office (OR DOT); Paul Hoffman; Rebecca Sanders; Safe Kids Worldwide; Safe Routes Partnership; SafetyBeltSafe U.S.A.; Saratoga County, NY Emergency Medical Services (Saratoga County); Scott Brody; Pedestrian Safety Solutions; Tom Schwerdt; Transportation Equity Caucus; Vision Zero Network; Washington Traffic Safety Commission (WA TSC); Wisconsin Bureau of Transportation Safety (WI BOTS); Wisconsin Bureau of Transportation Safety, Division of State Patrol (WI BOTS Patrol); joint submission by the Departments of Transportation of Idaho, Montana, North Dakota, South Dakota and Wyoming (5-State DOTs); and three anonymous commenters. Five of these commenters (5-State DOTs; WA TSC; Brandy Nannini; MN DPS; and CT HSO) expressed general support for GHSA's comments. The WA TSC also expressed support for the comments provided by the MN DPS, CA HSO and NY GTSC.

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

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

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

A. Rulemaking Process

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

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

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

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

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

B. Equity

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

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

Many commenters submitted comments asking NHTSA to place less emphasis on enforcement as a traffic safety countermeasure or to discontinue funding law enforcement altogether. Relatedly, several commenters expressed concern that NHTSA's grant funds provide support for pretextual stops by law enforcement, with several specifically mentioning NHTSA's support for the Data-Driven Approaches to Crime and Traffic Safety (DDACTS) program. The commenters expressed serious and data-driven concerns about the disparate impacts of policing and the incidence of police violence during traffic stops, especially during pretextual stops. ( See id.)

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

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

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

Both the Vision Zero Network and Safe Routes Partnerships stressed the importance of meaningful community engagement in designing equitable traffic safety programs. The BIL added a requirement for States to include meaningful public participation and engagement in State highway safety programs. 23 U.S.C. 402(b)(1)(B). In addition, Title VI of the Civil Rights Act of 1964 (Title VI), as implemented through DOT Order 1000.12C, requires that recipients of Federal funding submit a Community Participation Plan to ensure diverse views are heard and considered throughout all stages of the consultation, planning, and decision-making process. NHTSA agrees with the commenters that increased community engagement can help ensure that State highway safety programs are more equitable, and proposes regulatory provisions to implement BIL's requirement along with the Community Participation requirements from Title VI of the Civil Rights Act of 1964. These requirements will be discussed in more detail in the relevant sections of this preamble. See23 CFR 1300.11(b)(2) and 23 CFR 1300.12(b)(2).

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

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

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

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

C. National Roadway Safety Strategy and the Safe System Approach

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

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

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

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

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

D. Transparency

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

Both Advocates and the NSC submitted comments that broadly supported increased transparency, noting that transparency is vital for the public to measure the success of the highway safety grant program. Several commenters provided recommendations for information that they believe would help allow States and stakeholders to compare programs between States. The League of American Bicyclists recommended that NHTSA require States to provide information in the annual application that will show who receives grant funding and what the funding is used for in a manner that allows comparisons between States. NHTSA agrees, and believes that the project information, including subrecipients and information on the eligible use of funds, that BIL and the proposed regulation require for each project will serve this purpose. See23 U.S.C. 402(l)(1)(C)(ii) and 23 CFR 1300.12(b)(2). The NSC recommended that NHTSA require states to submit, and then release publicly, information on how much funding is used for direct programmatic activities, the short- and long-term impacts of State highway safety programs, and discussion about how community engagement informed the State's proposed use of funds. NHTSA proposes to include some of this information in the proposed regulation. Specifically, NHTSA proposes to require that States identify in the annual grant application the amount of costs attributed to planning and administration. See23 CFR 1300.12(b)(2)(viii). In addition, NHTSA proposes to require that States assess progress towards meeting performance targets and provide a description of how the projects that the State implemented were informed by meaningful public participation and engagement. See23 CFR 1300.35(a) and 1300.35(b)(1). NSC further recommended that at a minimum, States be required to report financial data, information on which regulations they complied with, and project data showing progress and community impact. NHTSA notes that financial data are required of all Federal grant recipients by 2 CFR 200.328 and that requirement is incorporated into NHTSA's proposed regulation at 23 CFR 1300.12(b)(2). NHTSA does not believe it is necessary to require States to provide a list of regulations to which they adhere. Federal grant recipients are responsible for, and States certify to, compliance with all applicable Federal laws and regulations, and States may be further subject to State laws and regulations. Many of those applicable laws and regulations are listed in proposed appendix A. Finally, NSC recommended that annual reports should be made available to the public for comment and that States should be required to incorporate those comments into their triennial HSPs. NHTSA already posts State annual reports online at NHTSA.gov, as is required by the BIL. See23 U.S.C. 402(n)(2)(B). However, NHTSA does not have authority to impose public comment on State annual reports, nor does NHTSA have authority to require States to incorporate any comments on annual reports that they may receive through other channels. That said, States may do so as part of a public engagement process, if they wish.

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

E. Emergency Medical Services

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

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

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

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

F. Other

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

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

III. General Provisions (Subpart A)

A. Definitions (23 CFR 1300.3)

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

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

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

B. State Highway Safety Agency (23 CFR 1300.4)

Today's action proposes updates to the authorities and functions of the State Highway Safety Agency, also referred to as the State Highway Safety Office (State HSO or SHSO). The NPRM explicitly adds the requirement that the Governor's Representative (GR) is responsible for coordinating with the Governor and other State agencies, and clarifies that the GR may not be positioned in an entity that would create a conflict of interest with the SHSO; however, these are not new requirements. Section 402 requires that the Governor of the State imbue the State highway safety agency with adequate powers and that it be suitably equipped and organized to carry out the State's highway safety program. 23 U.S.C. 402(b)(1)(A). Recognizing that Governors delegate this responsibility, NHTSA long ago created the requirement for the Governor to designate a GR. In order to carry out the requirements of Section 402, the GR must have the authority to coordinate with the Governor and other State agencies in carrying out the highway safety program. Conflict of interest restrictions are a fundamental component of Federal grant law. See2 CFR 200.112. Consistent with NHTSA's emphasis on equity considerations in highway safety programs and the BIL's emphasis on meaningful public participation and engagement and identification of disparities in traffic enforcement, the agency proposes to add the requirement that State Highway Safety Agencies be authorized to foster such engagement and include demographic data in their highway safety programs.

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

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

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

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

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

There appears to be some confusion among commenters about the timeframes envisioned by BIL for submissions under this framework. AASHTO and GHSA, supported by many State commenters, recommended that for the first year of each triennial cycle, States only be required to submit a triennial HSP along with appendix B, with no annual grant application. They then agreed that States would submit annual applications in the second and third years. This is inconsistent with the statutory requirement. As laid out in BIL, States must submit both a triennial HSP and an annual application in the first year of a triennial cycle, with only an annual grant application for years two and three. See23 U.S.C. 402. As the many commenters who urged NHTSA to clearly distinguish the two submissions make clear, the triennial HSP and annual grant application fulfill different purposes. As commenters rightly noted, the triennial HSP provides longer-term, program-level planning spanning a three-year period while the annual grant application implements that plan each year through project-level details.

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

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

A. General (23 CFR 1300.10)

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

B. Triennial Highway Safety Plan (23 CFR 1300.11)

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

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

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

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

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

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

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

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

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

In BIL, Congress added a requirement that State highway safety programs result from meaningful public participation and engagement from affected communities, particularly those most significantly impacted by traffic crashes resulting in injuries and fatalities. 23 U.S.C. 402(b)(1)(B). Relatedly, Title VI of the Civil Rights Act of 1964 (or Title VI) prohibits discrimination on the basis of race, color or national origin in any Federal program, including programs funded with Federal dollars. Title VI requires that all recipients of DOT financial assistance ensure that no person is excluded from participation in, denied the benefits of, or otherwise subjected to discrimination under any Federally-funded program or activity nondiscrimination. As implemented through the U.S. Department of Transportation Title VI Program Order (DOT Order 1000.12C), Title VI requires, among other things, that all recipients submit a Community Participation Plan. The purpose of the Community Participation Plan is to facilitate full compliance with Title VI by requiring meaningful public participation and engagement to ensure that applicants and recipients are adequately informed about how programs or activities will potentially impact affected communities, and to ensure that diverse views are heard and considered throughout all stages of the consultation, planning, and decision-making process. Because the public participation and engagement required by BIL and the Community Participation Plan required by Title VI have complementary goals, NHTSA proposes to structure grant requirements so that States can meet both requirements at the same time.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Other commenters expressed support for the BIL's emphasis on constant and improved performance, exhorting NHTSA to ensure that States do not set performance targets that increase fatalities and injuries. As the League of American Bicyclists points out, under the Safe System Approach, redundancies are meant to ensure that even when one component of a system fails, fatalities and injuries can still be reduced. Rebecca Sanders recommended that NHTSA implement consequences, such as reduced funding or directed spending, for States that do not achieve performance targets. NHTSA does not have the authority to withhold funds or direct State expenditure of funds for failure to achieve a performance target. However, the BIL provides that the State's annual grant application must include a description of the means by which the State's countermeasure strategy for programming funds was adjusted and informed by the State's assessment of its progress in meeting its targets in the most recent annual report. 23 U.S.C. 402(l)(1)(C)(iii). NHTSA proposes to implement this requirement by requiring that all States include either a narrative description of the means by which the State's countermeasure strategy for programming funds was adjusted and informed by the most recent annual report, or a written explanation of why the State made no adjustments to the strategy for programming funds. If a State determined in its most recent annual report that it was on track to meet its performance targets, it may simply state that fact. If a State determined that it was not on track to achieve its performance targets, it would be required to explain why it is not necessary to adjust the countermeasure strategy for programming funds in order to meet its targets.

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

Several commenters expressed concern that the new triennial HSP framework created by the BIL will create inconsistencies with the common measures that States also report annually to FHWA for the HSIP. GHSA and the WI BOTS Patrol both recommended that NHTSA require that the common measures be reported annually in the annual application, rather than in the triennial HSP, to maintain alignment with the HSIP. The League of American Bicyclists recommended that NHTSA work with States to ensure the HSP is consistent with the HSIP, including consistent performance measures and countermeasure strategies. The BIL provides that performance measures are submitted with the triennial HSP, so NHTSA does not have discretion to change that. 23 U.S.C. 402(k)(4). However, the BIL also provides that States may submit updates, as necessary, to the triennial HSP in the annual grant application. NHTSA believes it would undermine Congress' intent in providing for more long-term planning and performance management under the highway safety grant program to allow States to frequently adjust performance measures that are intended to be part of a triennial highway safety planning process. Rather, States should adjust their countermeasure strategies for programming funds if they determine that they are not on track to meet their performance measures. However, the agency recognizes the difficulty for States in having measures that are subject to the disparate planning timeframes of the triennial HSP and annual HSIP. Therefore, we propose to allow States to amend the common measures in the annual grant application, but not the other measures. 1300.12(b)(1)(ii). AASHTO stated that the regulation should more clearly vest target establishment authority in the States, arguing that it is inconsistent to require NHTSA approval for performance targets when 23 U.S.C. 150(d)(1) provides States with authority to establish targets for the HSIP without FHWA approval. FHWA previously addressed this comment in its final rule for the National Performance Management Measures: Highway Safety Improvement Program, which set out the parameters of the common performance measures. As the substance of the relevant statutes has not changed, NHTSA incorporates the response FHWA provided at that time. NHTSA emphasizes that the statute requires States to coordinate their highway safety plan with the HSIP and that States certify their compliance with this requirement in Appendix A. See23 U.S.C. 402(b)(F)(vi) and Appendix A. Further, NHTSA does not have discretion to override the statutory requirement that NHTSA approve or disapprove triennial HSPs, including the performance measures contained therein. See23 U.S.C. 402(k)(6).

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

Several commenters provided feedback on other aspects of performance measure data. WA TSC noted that since FARS data are provided by NHTSA, States should not be required to report FARS data back to NHTSA. However, the statute and the regulation require not just data reporting, but analysis of the data. See23 U.S.C. 402(l)(2)(A) and 23 CFR 1300.35(a)(1). A State would be unable to assess its progress in meeting FARS-based targets without reporting the FARS data. NASEMSO recommended that States be required to provide historical data covering a 3-to-5-year period prior to the period covered by the triennial HSP. While NHTSA does not explicitly require States to provide baseline data for performance measures, as a general matter, baseline data will be a key part of State's performance target setting and will usually be provided in the triennial HSP as part of the justification for the target set by the State. WI BOTS recommended that NHTSA allow States to set targets based on an average of the prior 4 years of FARS data plus State data in order to set a target percentage as opposed to a hard number. The comment did not provide enough details for NHTSA to be certain which target the commenter is referring to. In general, with the exception of the required common and minimum performance measures, States have flexibility to determine the appropriate performance measure needed for their programs. Safe Kids Worldwide suggested that States look to tangible events and metrics to measure performance, including FARS data. Drew Dawson and NASEMSO recommended that States consider use of NEMSIS and trauma registry data in performance measures. In order to ensure consistency and to facilitate a nationwide view of progress in traffic safety, the common and minimum performance measures specify the type of data source that States should use. However, for the other performance measures that States select, based on problem identification, States may use any available data source that is appropriate, including NEMSIS and trauma registry data.

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

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

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

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

GHSA recommended that NHTSA amend the definition of countermeasure strategy in order to clarify that it includes innovative countermeasures, and to explain how States can justify the use of innovative countermeasures. While NHTSA has amended the definition of countermeasure strategy for programming funds (see definition section for explanation), that definition does not incorporate the considerations GHSA recommends. Instead, NHTSA proposes to make these suggested clarifications directly in the regulatory text of this requirement. As a preliminary matter, NHTSA would like to clarify the distinction between a countermeasure and a countermeasure strategy for programming funds, which consists of a combination of countermeasures along with information on how the State plans to implement those countermeasures, such as funding amounts, subrecipient types, locations, etc. Specifically, NHTSA proposes to require that, for each countermeasure that a State plans to implement as part of a countermeasure strategy, the State provide data and analysis supporting the effectiveness of the countermeasure. NSC recommended that NHTSA require States to provide justification for use of established countermeasures in order to reflect evolving knowledge. However, NHTSA believes that requiring States to provide independent justification for all countermeasures, even ones that have been proven over time, is burdensome without any added gain. Therefore, the agency proposes that for countermeasures that are rated 3 or more stars in Countermeasures That Work, the State need only provide a citation to the countermeasure in the most recent edition of that document. For all other countermeasures including innovative countermeasures, States must provide justification supporting the potential of the countermeasure strategy, which may include research, evaluation, or substantive anecdotal evidence. See23 CFR 1300.11(b)(4)(ii). The WA TSC suggests that NHTSA accept the SSA principles as a justification for choosing countermeasure strategies in the triennial HSP. While NHTSA agrees that the SSA principles are great guiding principles for a State to use in selecting countermeasures, NHTSA notes that principles do not qualify as data and the data analysis required to justify the use of a countermeasure.

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

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

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

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

The BIL requires that the triennial HSP include a report on the State's success in meeting its safety goals and performance targets set forth in the most recently submitted highway safety plan. NHTSA has incorporated this statutory requirement into the proposed regulatory text, adding that the report must contain the level of detail provided in the annual report. See23 CFR 1300.11(b)(5). The agency's intent in doing so is to foster connection between the triennial HSP and the annual reports. We also believe that this will reduce burdens on States by enabling them to import relevant analysis from the annual reports into the triennial HSP and vice versa. So, for example, the FY27 triennial HSP (due July 1, 2026) would be able to incorporate the assessment from the FY24 and FY25 annual reports that were submitted in January 2025 and 2026, respectively, and would include a partial assessment for FY26. NHTSA recognizes that the triennial HSP is due prior to the end of the last fiscal year covered by the prior triennial HSP and will therefore not expect the assessment for the final fiscal year to cover the entire year. The State could then use the partial assessment provided in the FY27 HSP as a starting point to develop its assessment in the FY26 annual report (due January 2027). For the FY24 triennial HSP, NHTSA only expects analysis of the State's progress towards meeting the targets set in the FY23 HSP.

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

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

The BIL retained the previous statutory approval and disapproval requirements. NHTSA proposes to retain the regulatory provisions incorporating those requirements with only one amendment. In order to meet the approval deadline, NHTSA proposes to require that where NHTSA disapproves a triennial HSP, States must resubmit a triennial HSP with any necessary modifications within 30 days from the date of disapproval. 23 CFR 1300.11(c)(4).

C. Annual Grant Application (23 CFR 1300.12)

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

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

The BIL allows NHTSA to set the due date for the annual grant application, subject to the requirement that the deadline must enable NHTSA to provide the grants early in the fiscal year. See23 U.S.C. 402(l)(1)(B) and 23 U.S.C. 406(d)(2). Additionally, the statute provides that NHTSA must review and approve or disapprove annual grant applications within 60 days. 23 U.S.C. 402(l)(1)(D). GHSA recommended that the due date for the annual grant application be different than the July 1 deadline for the triennial HSP, noting that many States do not have project information by July 1. GHSA recommended that NHTSA set a due date of August 31 in order to align with the due date for HSIP annual reports. NHTSA agrees that there should be separate deadlines for the annual grant application and the triennial HSP, in part to lessen the burden on States during the years when both submissions are required. However, NHTSA would not be able to complete approval or disapproval of applications submitted on August 31 until October 30, which does not allow NHTSA to meet the statutory requirement to provide grant funds as early in the fiscal year as possible. NHTSA therefore proposes a deadline of August 1 for States' annual grant applications. 23 CFR 1300.12(a)

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

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

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

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

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

The BIL requires States to submit, as part of their annual grant application, identification of each project and subrecipient to be funded by the State using grants during the fiscal year covered by the application. The statute further provides that States may submit information for additional projects throughout the grant year as that information becomes available. See23 U.S.C. 402(l)(C)(ii).

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

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

The WA TSC also advised NHTSA not to use zip codes as a measure for identifying high priority areas. The WA TSC stated that it would be challenging to account for zip codes for efforts conducted by statewide entities. NHTSA believes that zip codes and other identifying location information are a valuable part of a project description and help ensure that States are implementing programs in the areas that are identified by the State's problem ID. However, NHTSA recognizes that there are many grant-funded activities that are Statewide or, like data system projects, have no physical location. Therefore, NHTSA proposes to include zip codes as an example of information that may be provided as part of a project description, but does not require it for all projects. See23 CFR 1300.12(b)(2)(i).

Brian Maguire, et. al recommended that NHTSA require States to provide the dollar amount of funding dedicated to each of the five objectives of the NRSS, particularly post-crash care. NHTSA believes that such a parsing would be too burdensome and would not provide sufficient benefit as dollar value, alone, does not align with safety improvements.

The Transportation Equity Council recommended that, in order to facilitate comparison, NHTSA provide a sample list of organization and use of fund types that States should include as project information. NHTSA agrees that such a list is useful. Currently, States use categories provided in the Grants Tracking System to identify eligible use of funds. NHTSA also proposes examples of subrecipient types to be provided in 23 CFR 1300.12(b)(2)(iii).

Finally, GHSA notes that the statute allows states to provide project information throughout the grant year. As noted in 23 CFR 1300.12(d), NHTSA intends to implement this at 23 CFR 1300.32 and will discuss the amendment process and comments in more detail there.

4. Section 405 and Section 1906 Racial Profiling Data Collection Grant Applications (23 CFR 1300.12(b)(3) and Appendix B)

The BIL requires States to provide the application for the Section 405 and Section 1906 grants as part of the annual grant application. 23 U.S.C. 402(l)(1)(C)(iv). As in the past, NHTSA incorporates the requirements for the Section 405 and Section 1906 grants in subpart C and appendix B of part 1300. See23 CFR 1300.12(b)(3). The specific requirements and comments for the national priority safety program and racial profiling data collection grants are discussed in more detail in the relevant sections, below.

5. Certifications and Assurances (23 CFR 1300.12(b)(4) and Appendix A)

As under MAP-21 and the FAST Act, NHTSA continues the requirement for States to submit certifications and assurances for all 23 U.S.C. Chapter 4 and Section 1906 grants, signed by the Governor's Representative for Highway Safety, certifying the annual grant application contents and providing assurances that the State will comply with applicable laws and regulations, financial and programmatic requirements and any special funding conditions. 23 CFR 1300.12(b)(4). The certifications and assurances are provided in appendix A to part 1300. NHTSA has proposed general updates to the certifications and assurances in appendix A to reflect current Federal requirements. Specifically, NHTSA has updated the Nondiscrimination certifications to reflect DOT Order 1050.2A, “DOT Standard Title VI Assurances and Non-Discrimination Provisions.” NHTSA also added a certification on conflict of interest, consistent with the requirement in 2 CFR 200.112. Neither certification creates a new requirement for States; instead, the certifications merely make clear the existing requirements that apply.

Finally, NHTSA proposes updates to the Section 402 requirements consistent with statutory changes in the BIL. NHTSA deletes the requirement that political subdivisions of the State be formally authorized to carry out local highway safety programs, consistent with the BIL's removal of that requirement at former 23 U.S.C. 402(b)(1)(B). However, as described below, this does not remove the requirement for political subdivision participation, which remains an important focus. NHTSA updates the certification regarding the traffic safety enforcement program to reflect the new statutory requirements at 23 U.S.C. 402(b)(1)(E). NHTSA adds the requirement that States (with the exception of American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, and the United States Virgin Islands) participate in the FARS. 23 U.S.C. 402(b)(1)(F)(vi). Finally, NHTSA amends the certification regarding automated traffic enforcement systems to reflect the changes in 23 U.C.S. 402(c)(4).

6. Review and Approval Procedures (23 CFR 1300.12(c))

The BIL provides that NHTSA must review and approve or disapprove an annual grant application within 60 days. 23 U.S.C. 402(l)(D). NHTSA proposes to implement this deadline and additionally proposes to provide procedures for NHTSA to request additional information from States if necessary for review. GHSA is correct in noting that the BIL has language specifically allowing the agency to request additional information in order to review the triennial HSP, but no similar language concerning the annual application. GHSA argued that requests for additional information raise the risk of micromanagement. While NHTSA recognizes that the statute sets out a process, with timelines, for the agency to request additional information in the triennial HSP, it does not prohibit such inquiry in connection with the annual application, and we have a long-standing practice of seeking clarifications during review of State grant applications. These clarifications are necessary to ensure that the agency has sufficient information to approve State grant applications. The intent of these requests for clarification is not to micromanage State programs. Rather, without these clarifications States are more likely to be denied a grant or portion of a grant that, with the necessary clarification, would be approved. We therefore propose to provide for clarification in the annual grant application as well, though without the same strict time frames set out by statute for the triennial HSP. See23 CFR 1300.12(c)(1).

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

While Section 402 provides broad flexibility for States to use grant funds to conduct approved highway safety programs, it has long included some specific requirements related to use of funds. NHTSA's grant regulation previously included some, but not all, of these requirements in various parts of the regulation. In addition, the BIL added two new requirements regarding specific uses of grant funds. With this action, we propose to consolidate the statutory funding conditions for Section 402 grant funds into 23 CFR 1300.13 so that State recipients may see these statutory requirements in one place. As part of this effort, NHTSA proposes to delete Appendices C and D and to move those provisions (participation by political subdivisions and P & A costs, respectively) into the main body of the regulatory text. (23 CFR 1300.13(a) and (b)). In addition, NHTSA has added regulatory provisions to incorporate the statutory requirements related to use of grant funds for reducing marijuana-impaired driving, an unattended passengers program, use of funds to check for motorcycle helmet usage, a teen traffic safety program, and the prohibition on the use of grant funds for automated traffic enforcement systems. See23 CFR 1300.13(c-g). States should note, however, that expenditures are still subject to all other relevant Federal funding requirements, including the requirements and cost principles contained in 2 CFR part 200 that all Federal grantees must follow.

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

In moving Appendix D (Planning and Administration (P & A) costs), into 23 CFR 1300.13(a), NHTSA has streamlined the regulatory language by removing duplicative language. The substance of the provision remains the same. Three commenters (GHSA, MN DPS, and WI BOTS) requested that NHTSA increase the percentage of funds that can be allocated to Planning and Administration (P & A) costs from 15% to 18% in order to cover increased costs due to the increase in grant funding provided by BIL, inflation, technological demands, and expenses associated with remote work. NHTSA notes that the significant increase in 402 funding provided by BIL provides a proportional increase in the total dollar value that is eligible to be used for P & A activities. We do not believe that an increase in the percentage of funds that can be used for non-programmatic activities is warranted at this time. However, if commenters provide additional data in support of this request, we will take it into consideration for the final rule.

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

NHTSA's highway safety grant program has included a 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 approved local highway safety programs since the inception of the program with the passage of the Highway Safety Act of 1966. Except for the addition in 1998 of the requirement that 95 percent of funds apportioned to the Secretary of the Interior be expended by Indian tribes, the statutory requirement has been largely unchanged since that time. NHTSA incorporated the requirement into its regulations via regulatory text that has also remained largely unchanged since 1976. NHTSA's regulatory construction of the requirement provided that States could meet the 40 percent required expenditure by political subdivisions either through direct expenditures by political subdivisions or through demonstration that the political subdivision had an active voice in the initiation, development and implementation of approved local highway safety programs. Appendix C to part 1300.

The BIL amended the statutory requirement underlying this provision by removing the requirement that the local highway safety programs funded with these funds be approved by the Governor. The existing grant regulation provides four avenues for States to demonstrate participation by political subdivisions: (1) direct expenditure, (2) active voice participation by the specific political subdivision, (3) active voice participation by other political subdivisions that is incorporated by request of a different political subdivision; and (4) request by a political subdivision as part of an approved local highway safety program. The statutory change would nullify the fourth avenue, significantly altering the construction of the requirement. In addition, NHTSA also received comments from both GHSA and the League of American Bicyclists related to this requirement. GHSA's comments focused on the difficulty States face in documenting active voice participation by political subdivisions in the expenditure of grant funds due to the large number of local subrecipients. It suggested that NHTSA allow States to meet this requirement through documentation at levels above the individual subrecipient level. It also requested that State-sponsored communication efforts, including those related to HVE campaigns, be allowed to count towards the 40 percent requirement. NHTSA recognizes that States face a large task in coordinating with so many political subdivisions; 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 statutory requirement is focused on the expenditure of funds, which is not consistent with GHSA's recommendation to allow compliance with this requirement above the subrecipient level. Similarly, a State-sponsored communication effort, tied to a State HVE campaign, by definition, does not meet the condition that the funds be expended by political subdivisions. However, NHTSA recognizes that the existing regulatory requirement to demonstrate “active voice” participation may be unclear or confusing for States and political subdivisions. As described in more detail below, NHTSA is proposing a new framework for compliance with this local expenditure requirement.

Offering a different perspective, the League of American Bicyclists recommended that NHTSA require additional reporting from States on how they meet the local expenditure requirement, including demonstration of community support for the work performed and proof of coordination. While NHTSA agrees that States must provide evidence that political subdivisions directed the expenditure of funds to qualify under this requirement, requiring additional demonstration of community support in order to qualify for this requirement exceeds NHTSA's statutory authority and could impose an unnecessary burden on the communities it is intended to support.

As a result of the BIL's amendments to this requirement, the new triennial framework for highway safety programs, NHTSA's experience administering this requirement, and comments received through the RFC (addressed below), NHTSA proposes a new conceptualization of this statutory requirement. Under the proposed rule, States would show compliance with the statutory local expenditure requirement either through direct expenditure by political subdivisions ( i.e., the political subdivision is a subrecipient of grant funds) or through expenditures by the State on behalf of the political subdivision. Where a State relies on State expenditures to meet this requirement, it would have to show evidence that the political subdivision was involved in identifying its traffic safety needs and provided input into the implementation of the activity.

While the statute provides that 40 percent of funds must be expended by the political subdivisions (or 95 percent, in the case of tribal governments), NHTSA recognizes that in some cases it may be advantageous for both the State and the political subdivisions to allow States to expend grant funds on behalf of the political subdivisions. This would enable smaller political subdivisions that may have fewer resources to direct grant funds towards their highway traffic safety needs and would also allow political subdivisions to benefit from the economies of scale that a State-run program can provide. In order to provide the most flexibility for political subdivisions and States, consistent with the statutory limitations, NHTSA proposes to allow expenditures by States to count towards the 40 percent local expenditure requirement so long as there is adequate evidence of the political subdivision's role in the process leading to implementation of the activity. States may demonstrate that expenditures meet this requirement in two ways.

First, 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. The State would then enter into projects based on the identification of need and implementation notes by the political subdivision during the planning process. Finally, to ensure that the activities implemented do meet the needs of the specific political subdivision, the State must obtain written acceptance by that political subdivision for the project that the State is implementing.

Second, 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. 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.

During NHTSA's administration of this requirement over time, many States and subrecipients have expressed confusion about which entities qualify as political subdivisions. To resolve this confusion, NHTSA proposes to add a definition of political subdivision to the definitions at 1300.3. In drafting this definition, NHTSA consulted regulatory definitions by other Federal agencies and made adjustments to tailor the definition to the highway traffic safety program.

In order to streamline the regulation, NHTSA proposes to move the Participation by Political Subdivisions regulatory text out of the Appendices and into the body of the regulation at 23 CFR 1300.13(b), along with the other funding conditions for Section 402 grants.

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

The BIL provides new and amended specified uses of Section 402 grant funds. First, the BIL requires States that have legalized medicinal or recreational marijuana to consider implementing programs to educate drivers and reduce injuries and deaths resulting from marijuana-impaired driving. 23 U.S.C. 402(a)(3). Second, the BIL requires each State to use a portion of Section 402 grant funds to carry out a program to educate the public about the risks of leaving a child or passenger unattended in a vehicle. 23 U.S.C. 402(o). Finally, as explained further below, the BIL amended the prohibition on funding automated traffic enforcement systems. 23 U.S.C. 402(c)(4).

GHSA submitted comments regarding the new requirements related to funding programs related to marijuana-impaired driving and unattended passengers. GHSA noted that all States currently have efforts underway related to drug-impaired driving, so it should not be difficult for them to comply with the new requirement. GHSA asked that NHTSA not specify a required minimum amount that States must expend on unattended passenger awareness because such activities may be tied into larger safety campaigns, so long as States can show that they are implementing a sound countermeasure strategy. NHTSA agrees and does not propose to require a specific monetary amount or specific activities that States must implement to satisfy this requirement. However, States will need to clearly state in their triennial HSPs and annual grant applications which countermeasure strategies and projects address this requirement.

GHSA requested that NHTSA reconsider the decision, formalized in a memo from the Chief Counsel on June 26, 2018, that NHTSA's statutory authority under Section 4007 of the FAST Act prohibits the use of NHTSA grant funds to conduct motorcycle helmet use surveys. As the legislative prohibition has not been rescinded, NHTSA does not have authority to allow NHTSA funds to be used for statutorily-prohibited uses.

The FAST Act prohibited States from expending Section 402 grant funds on automated traffic enforcement systems (ATES) and required each State to either certify that ATES were not used on any public roads within the State or to conduct a biennial ATES survey. The BIL provides a new exception to the prohibition on ATES, allowing States to use Section 402 grant funds to carry out a program to purchase, operate, or maintain an ATES in a work zone or school zone, consistent with guidelines established by the Secretary. The BIL also removed the certification and biennial survey requirement. This action proposes to incorporate these statutory changes. Three commenters (GHSA, Vision Zero Network, and NACTO) requested simplified and updated guidance for the use of ATES. FHWA publishes ATES guidelines in coordination with NHTSA. The agencies are currently in the process of revising the Speed Enforcement Camera Systems Operational Guidelines to reflect the latest automated speed enforcement technologies and operating practices. NHTSA notes that BIL limits the eligible use of ATES to school zones and work zones and State or local laws may provide further clarifications and/or restrictions on their use. NHTSA notes that while the statute sets location restrictions on ATES use associated with school and work zones, it does not condition their use in other ways such as by establishing a specific time or month of use. NHTSA looks forward to seeing how States might strategically employ ATES to support and improve programs, and will work with States that seek to implement these programs in an effective and equitable manner.

While one commenter suggested that pedestrians and bicyclists receive a share of all funding at least equal to the proportion of fatalities on the network (Rebecca Sanders), NHTSA does not have the authority to require this type of funding directive. States determine grant fund expenditures on various highway safety problems within their borders based on data. However, the BIL does designate that seven percent of the National Priority Safety Programs be expended on nonmotorized safety grants, and today's proposal incorporates this requirement.

E. Information and Data for Consideration

The BIL further provides that in order to be approved, a State highway safety program must support data collection and analysis to ensure transparency, identify disparities in law enforcement, and inform traffic enforcement policies, procedures, and activities. 23 U.S.C. 402(b)(1)(E). As an anonymous commenter noted, better records and data are important to efforts to increase safety. NHTSA received many comments relating to data sources that States should be required to consult or report to NHTSA. Some commenters specified particular documents, while most recommended the same data be included in each submission to NHTSA or did not specify. Many commenters tied their suggestions to improved transparency. In addition, many commenters recommended that NHTSA initiate or require States to work toward improved consistency in their data systems. As these comments appear to be broadly focused, we address them here as a group, in the context of the triennial framework as a whole.

GHSA, WI BTS, 5-State DOTs; MN DPS all recommended that NHTSA provide flexibility as to which data sources States are required to consult in order to meet their planning, application and reporting requirements for NHTSA highway safety grant funds. These commenters explained that data system resources and capabilities, including the specific data captured and how it is shared, vary from State to State and that State Highway Safety Offices have limited control over most, if not all, of the data systems involved in assessing highway safety problems. They specifically noted that States are at varying levels of readiness to meet any potential requirement for universal traffic stop data, particularly because it depends on getting buy-in from law enforcement agencies at all levels of government, not just at the State level. ( See id.) These commenters recommended that, instead of setting specific requirements on data sources and data points that States must submit, NHTSA should provide flexibility to States to use the data that are available to them and to allow States to continue efforts to improve data collection and data systems.

Two groups, NACTO and NASEMSO, appear to acknowledge that State data capabilities are not yet at a level to provide all the data that they would like to see reported in State applications and annual reports. NACTO recommended that States work to enhance data collection and reporting procedures, including through requiring all State and local law enforcement agencies to collect and publicly report data for all stops in order to ensure that enforcement actions have a demonstrable public safety impact. Similarly, NASEMSO recommended that States identify the steps that they are taking in preparation for a forthcoming universally unique identifier (UUIS) that would link EMS patient care reports and trauma registry records to crash records. As noted below, NHTSA cannot require States to do so, but these may be eligible uses of grant funds.

NASEMSO recommended that NHTSA require States to provide baseline data from traditional sources such as State crash, vehicle, driver, roadway, and citation & adjudication databases in order to ensure projects are funded in the areas of most need. This is the underlying rationale for the requirement for States to conduct data-driven problem identification in the triennial HSP (see 23 CFR 1300.11(b)(1)). NHTSA notes, however, as described below, that States should consider not only traditional highway safety data sources, but also other data that may provide useful information.

In general, NHTSA seeks to balance the need for data and other information that will help the States and the public understand how and where NHTSA grant funds are being used and the outcomes of the highway safety grant programs being carried out with Federal funds with the need to minimize administrative burdens on both States and their subrecipients so that they can focus efforts on implementing needed highway safety programs. As is described more fully in the sections of this preamble that discuss the proposed requirements for the triennial HSP, annual grant application, and annual report, the information that NHTSA is proposing that States submit in those documents is based on statutory requirements from Section 402 and Section 405, administrative grant requirements in the OMB's Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, and, in limited instances, the agency's experience with fielding requests for information from Congress and auditors. See23 CFR 1300.11, 1300.12, and 1300.35. Except for limited circumstances, including the common performance measures that require the use of FARS data, NHTSA does not prescribe specific data sources that States must provide or consult. Instead, NHTSA proposes that States use the best data available to them to conduct problem ID, set performance targets, and assess their progress in meeting those targets. States are also encouraged to think critically about how all available data can and should be used to analyze their programs beyond the data that is specifically required. Further, NHTSA encourages States to consider ways to improve State data systems in order to increase the data that are available to them in conducting problem ID and setting performance targets. NHTSA encourages States to take full advantage of the State traffic safety information system improvements grants (23 U.S.C. 405(c) and 23 CFR 1300.22) and the racial profiling data collections grants (Section 1906 and 23 CFR 1300.29), which are intended to support those efforts.

Numerous commenters provided specific recommendations for data that NHTSA should require States to submit or otherwise share with the public. While NHTSA proposes to allow States flexibility to use the data sources that will best inform their highway safety work, NHTSA will relay the recommendations of the commenters below so that States may have the advantage of these diverse suggestions.

The League of American Bicyclists and the TEC both recommended that States should collect and report demographic data in order to identify disparities in traffic safety and in the application of countermeasures, including law enforcement. Both groups recommended that States consult demographic data on traffic stops and citations. The TEC further recommended that States consult a variety of data sources, including traffic stops, citation and adjudication systems, and crash records, aggregated by race, income, geography and other relevant factors in order to inform the State's problem identification and to identify traffic safety disparities. The OR DOT similarly recommended that States add human characteristics to existing crash data by including demographic data, such as income and race, in States' problem identification and program planning. Safe Kids Worldwide and Rebecca Sanders recommended that States include age and race in assessments of fatality and injury numbers. NHTSA agrees that demographic information is invaluable to State highway safety problem identification and program planning. We encourage States to think expansively and seek out all available data sources. However, given the broad reach of the highway safety programs, NHTSA does not propose to require States to provide demographic information for all projects, such as a Statewide paid media campaign, though we do encourage States to provide demographic information as part of a project description where it is relevant. ( See23 CFR 1300.12(b)(2))

Other commenters stressed the importance of including data elements relating to the built environment in order to better understand traffic safety needs. The League of American Bicyclists and Rebecca Sanders both recommended that States look at road design, road speed, and the presence of ped/bike facilities. Rebecca Sanders further recommended that States break down crash data by mode ( i.e., driving, bicycling, pedestrian) and severity of injury along with demographic information. The League of American Bicyclists suggested more granularity for assessing data for fatalities and injuries of vulnerable road users; specifically, looking at the percentages of fatalities and injuries that are represented by vulnerable road users and taking note of the presence of ped/bike facilities and lighting. NHTSA agrees that data elements related to the roadways on which crashes occur are a valuable part of State problem identification and program planning, and encourages States to consider all available data to better understand the specific traffic safety problems in the State.

Several commenters recommended that States either consider or be required to use a combination of data from law enforcement crash records, NEMSIS and the State trauma registry, both in recognition of the role that post-crash care plays in State highway traffic safety and to provide a better understanding of all parts of the system that play a role in State fatality and serious injury rates. ( See Brian Maguire, et. al, Drew Dawson, NASEMSO, and an anonymous commenter.) NHTSA agrees that NEMSIS is a valuable resource and encourages States to make use of it.

NASEMSO submitted several recommendations for detailed project-related data that it believes NHTSA should require States to provide. This includes information on trainings funded by the grant, including number of enrollments, number of participants who completed the course, and a delta that shows the knowledge change for participants. NASEMSO also recommended that NHTSA require measures that show the penetration of State programs, such as the percentage of all target organizations that are eligible to apply for grants, the percentage of organizations that actually applied, the percentage of applicants who received a grant, and the percent of awardees who completed their grant activities. Further, NASEMSO recommended that NHTSA seek equipment availability and usage rate information, including the percentage of vehicles or shifts for which equipment was used and the type and frequency of use for all equipment used to link EMS, trauma and crash records data. Brian Maguire, et. al recommended that NHTSA require States to provide data regarding EMS professionals in the annual report. NHTSA agrees that much of this information could be informative for States and their subrecipients in implementing and supporting their programs or projects, and some of this information (such as equipment use) may be required to support allowability of certain uses of funds during the life of the grant. However, NHTSA believes that requiring this level of information in application or annual report documents would unduly burden States and their subrecipients. NHTSA is especially concerned that this level of reporting would severely discourage smaller or less resourced, often community-led groups, including many EMS organizations, from seeking highway safety grant funds from States. We therefore decline to require this level of information in the proposed regulation.

Finally, Rebecca Sanders recommended that States provide information on community outreach and feedback, including use of community perception surveys. States may consider gathering and using this sort of information.

IV. 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, we describe the requirements proposed in today's action for the grants under Section 405—Occupant Protection, State Traffic Safety Information System Improvements, Impaired Driving Countermeasures, Distracted Driving, Motorcyclist Safety, Nonmotorized Safety, Preventing Roadside Deaths, and Driver and Officer Safety Education, and the Section 1906 grant—Racial Profiling Data Collection. The subheadings and explanatory paragraphs contain references to the relevant sections of this NPRM where a procedure or requirement is implemented, as appropriate.

NHTSA received several comments that apply to all Section 405 and Section 1906 grants. GHSA suggested that, in order to decrease burden, NHTSA allow States to certify compliance with Section 405 eligibility requirements that remain static rather than restating information from prior years. NHTSA declines to do so. Congress authorized the Section 405 grants as annual grants with an annual grant application and annual qualification. NHTSA therefore must review full applications for the Section 405 grants every fiscal year. Where specific Section 405 grants allow for a specific criterion to serve as a qualifying criterion in multiple years of grant applications, NHTSA has noted so specifically in that section and laid out what the State must provide to incorporate a prior year response. Most of the Section 405 grant applications, however, require updated information based on current data, updated program plans, or evidence of recent progress.

GHSA urged NHTSA to create a complete qualification checklist for each Section 405 grant program in order to assist States in developing and providing the required information. Appendix B is formatted to serve as the application framework for States and provides a list of application requirements at a high, checklist-style level. However, for full details on application criteria and requirements, NHTSA stresses that States must read the relevant statutory and regulatory text, which provide all application criteria. In rare occasions, the preamble may provide additional clarification, but NHTSA has striven to ensure that the regulation is an easy-to-read, one-stop resource for States to consult in developing and submitting grant applications.

GHSA requested that appendix B be amended to provide States with a checklist of potential reasons for not applying for a grant under Section 405 so that that information can be captured in the grant determination chart that NHTSA publishes online consistent with Section 4010(2) of the FAST Act, as amended by the BIL. The statute requires that NHTSA publish a list of States that were awarded grants, States that applied but did not receive a grant, and States that did not apply for a grant under each section of Section 405. It further requires that NHTSA publish a list of all deficiencies that made a State ineligible for a grant for which it applied. It is not possible for NHTSA to create a list of every reason a State may not apply, nor does the statute require it. We therefore decline to make this change.

Advocates recommended that NHTSA provide States with a full explanation when they fail to qualify for a grant and to provide guidance on how to meet qualifying criteria. As explained above, NHTSA is required to publish a list of all deficiencies that caused a State to fail to qualify for a grant. In addition, NHTSA has been and remains willing to provide technical assistance to States who seek to resolve any deficiencies identified for future grant cycles.

ESS encouraged NHTSA to express the importance of fully investing Section 405 funds for the Congressionally expressed purposes and to streamline and make efficient the administration of the Section 405 grants. Congress authorized the Section 405 grant programs in response to identified National highway safety priority areas and prescribed allowed uses of funds that address those areas. NHTSA encourages States to use all Section 405 grant funds available.

A. General (23 CFR 1300.20)

Some common provisions apply to most or all of the grants authorized under Sections 405 and 1906. The agency proposes changes to only two paragraphs of this section.

1. Definitions (23 CFR 1300.20(b))

The agency proposes to move the definition of personal wireless communications device to 23 CFR 1300.24—distracted driving grants—for ease of reference.

2. Transfer of Funds (23 CFR 1300.20(e))

As described in more detail in the relevant grant programs, below, new grant programs and amendments to existing grant programs have led to more diversity in the statutory formulas that NHTSA applies for award determinations under Section 405 and Section 1906. As a result, NHTSA proposes to add provisions setting out the statutory award determination information in each grant program, as opposed to in this section. Therefore, the agency proposes to retitle this paragraph as Transfer of Funds and to delete paragraphs 1 and 2.

The 5-State DOTs requested that NHTSA continue to transfer any remaining Section 405 grant funds to Section 402. NHTSA will continue to do so consistent with statute. 23 U.S.C. 405(a)(10) and 23 CFR 1300.20(e). Currently, the regulation provides that NHTSA shall distribute remaining funds in proportion to the amount each State received under Section 402 for fiscal year 2009. In this action, NHTSA proposes to update the regulation to require distribution in proportion to the amount each State received under Section 402 for fiscal year 2022. This will ensure that distribution is based on more current population and public road mileage and matches the distribution basis that Congress provided in the new grant programs. See23 U.S.C. 405(h & i).

As in previous authorizations, in the event that all grant funds authorized for Section 1906 grants are not distributed, the BIL does not authorize NHTSA to reallocate unawarded Section 1906 funds to other State grant programs. Rather, any such funds will be returned for use under 23 U.S.C. 403, and do not fall within the scope of this proposal.

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

Under the FAST Act, States were required to provide an assurance that they would maintain their aggregate State-level expenditures (Maintenance of Effort, or MOE). The BIL removed this requirement and with this action, the agency proposes to remove the requirement from the regulatory text as well. This would resolve the comment from the 5-State DOTs requesting that NHTSA remove the MOE requirement.

GHSA requested that NHTSA provide clarity on how the FAST Act's MOE requirement applies to oversight of existing grant funds. Since the BIL amendments take effect for the FY24 grant cycle, FAST Act requirements (including MOE) will continue to apply to FY22 and FY23 grant funds. NHTSA waived the MOE requirement for FY20 and FY21 grant funds consistent with our authority under the CARES Act (Pub. L. 116-136, Division B, 22005(a)).

C. Occupant Protection Grants (23 CFR 1300.21)

The BIL continues the MAP-21 and FAST Act Occupant Protection Grants with three substantive amendments. The BIL removed the maintenance of effort requirement that was in effect under the FAST Act, extended the period of time between occupant protection assessments for the assessment criterion for lower seat belt use states, and expanded the allowable uses of funds under this grant program. This NPRM proposes 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 comments related to the Occupant Protection Grants from four commenters. Several comments related to general program administration. CIRP expressed support for prioritization of child traffic safety through evidence-based interventions. SafetyBeltSafe U.S.A. provided several suggestions for NHTSA's child occupant protection program, including a recommendation that NHTSA increase age and weight limits for child safety seats. NHTSA's Child Car Safety Campaign emphasizes the importance of children riding in a seat appropriate for their age and size and encourages parents to maximize the safety benefits of each seat by having their child remain in each seat up to the manufacturers' maximum weight or height limits. SafetyBeltSafe U.S.A. stated that passenger safety advocates' experience is that 90 percent of families have inadvertent errors in child restraint use, and asked NHTSA to adjust the agency's messaging to reflect this rate rather than the 46 percent rate of misuse currently cited by NHTSA. In 2015, NHTSA conducted the National Child Restraint Use Special Study, a nationally representative survey that applied a consistent definition of “misuse” to find the 46 percent misuse rate. Current data from the National Digital Car Seat Check Form, a free and publicly available resource, finds a 59 percent rate of misuse. NHTSA agrees that families need to be made aware of the frequency of unknowing child restraint misuse, and provides extensive support for child passenger safety programs, including through the Occupant Protection Grant Program and through NHTSA's Child Car Safety Campaign. SafetyBeltSafe U.S.A. also recommended that the agency allow a two-year grant in order to allow more opportunity for community engagement in the occupant protection program. While the NHTSA grant program is, by statute, an annual grant program, States may enter into multi-year agreements with subrecipients subject to the proviso that later year funding is contingent on availability of funds.

1. Qualification Criteria for a High Seat Belt Use Rate State (23 CFR 1300.21(d))

To qualify for an Occupant Protection grant, all States must meet several requirements. As a result of the new triennial HSP framework created by the BIL, NHTSA made some conforming amendments to these requirements. In addition to replacing “planned activities” with “projects,” as described in more detail above, NHTSA also proposes to clarify that the State's occupant protection plan must be updated annually. The Section 405 grants are annual grants, so NHTSA interprets all application requirements to be annual requirements. That said, not all components of the occupant protection plan must be updated annually. A State could rely on the problem ID, performance measures, targets, and countermeasure strategies laid out in its triennial HSP for the period covered by the triennial HSP. In that case, it would only be required to update the projects component of the occupant protection plan on an annual basis.

2. Qualification Criteria for a Lower Seat Belt Use Rate State (23 CFR 1300.21(e))

To qualify for an Occupant Protection Grant, all States must meet several requirements, as noted above. In addition to meeting the requirements applicable to all States, States with a seat belt use rate below 90 percent must meet at least three of six criteria to qualify for grant funds. The BIL amended one of those criteria, the requirement to complete an assessment of the State's occupant protection program by expanding the time period between assessments from three to five years. In this action, the agency proposes to amend the regulatory requirement to reflect this statutory change.

3. Award Amounts (23 CFR 1300.21(f)

As mentioned above, NHTSA proposes to move the award amount provisions from 23 CFR 1300.20 into each individual grant program. NHTSA proposes to incorporate the statutory award allocation provision without change.

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

The BIL made amendments to increase the emphasis on child passenger safety programs aimed at serving low-income and underserved populations. It did so by requiring that all States, including high belt use States, spend at least 10 percent of grant funds to carry out child passenger safety program activities aimed at serving low-income and underserved populations and adding eligible uses for such programs.

Specifically, all States are now required to use at least 10 percent of their occupant protection funds to carry out specified activities related to child passenger safety programs aimed at serving low-income and underserved populations. High belt use rate States may continue to use the remaining 90 percent of their occupant protection funds for any project or activity eligible for funding under section 402. Low belt use rate States must use the remaining 90 percent of their occupant protection funds for eligible occupant protection activities.

GHSA recommended that NHTSA not set out a strict definition of “low-income and underserved populations”, but instead allow States to articulate their rationale for their own definition because data sources and populations may vary from State to State. While NHTSA agrees that data sources and populations vary from State to State, the agency proposes to provide a high-level definition that will provide States with guidance in identifying the specific populations within their jurisdiction.

SafetyBeltSafe U.S.A. and Safe Kids Worldwide submitted comments expressing support for BIL's emphasis on underserved populations and encouraged broader community engagement in child occupant protection. Both commenters suggested increased use of community members as CPS technicians in order to better engage communities, including low-income and underserved populations, in child passenger safety. Safe Kids Worldwide suggested the agency and States work with stakeholders to expand virtual child passenger safety checks. NHTSA encourages States to consider these recommendations when planning their child passenger safety program activities.

SafetyBeltSafe U.S.A. commented that the agency should avoid “siloing” interconnected safety issues such as occupant protection and impaired driving and that occupant protection programs should consider more categories of affected populations, such as pregnant people. NHTSA agrees that traffic safety issues may intersect or be interconnected and that countermeasure strategies may need to go beyond strict program boundaries. Occupant Protection grant funds may be used only for the specified occupant protection uses laid out in statute and should consider all relevant aspects of the State's occupant protection problem ID, including, where applicable, any contributing factors. If the specified uses of Section 405(b) grant funds are too narrow to cover a specific project, States should consider whether Section 402 grant funds may be used.

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

The BIL continues, with some changes, the traffic safety information system improvements grant program originally authorized under SAFETEA-LU and extended through MAP-21 and the FAST Act. The purpose of this program remains to support State efforts to improve the data systems needed to help identify priorities for Federal, State and local highway and traffic safety programs and to evaluate the effectiveness of such efforts, to link intra-State data systems, to improve the compatibility and interoperability of State data systems with national data systems and the data systems of other States, and to enhance the ability to observe and analyze national trends in crash occurrences, rates, outcomes, and circumstances. (23 CFR 1300.22(a)).

As explained in more detail below, 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. It also expanded the allowable uses of funds under this grant program.

Finally, while not addressed in the regulatory text of this NPRM, the BIL also provided authorization for NHTSA to provide technical assistance to States with respect to improving the program attributes of State safety data. States are encouraged to reach out to their Regional Office for more information on the types of assistance available and how to request that assistance.

In response to the agency's RFC, commenters generally expressed support for fully implementing and encouraging BIL's expansion of allowable costs under this grant program. Those comments are addressed under the relevant heading below.

1. Certification (23 CFR 1300.22(b)(1))

The role of the TRCC in the State Traffic Safety Information System Improvements Grant program under this NRPM remains the same as it was under the FAST Act, but the application requirements have been streamlined. The BIL streamlined the application requirements by allowing States to submit certifications relating to the structure and responsibilities of the State traffic records coordinating committee (TRCC) and the contents of the State traffic record strategic plan. NHTSA proposes to adopt those changes in this NPRM. While States are still responsible for ensuring that the TRCC and strategic plan meet grant eligibility requirements, and these requirements may be subject to NHTSA oversight activities, States are no longer required to provide NHTSA with supporting documentation at the time of application.

State must still have a traffic records strategic plan that has been approved by the TRCC and describes specific quantifiable and measurable anticipated improvements in the State's core safety databases. Previously, States requested guidance from NHTSA on traffic records strategic planning. In response, NHTSA developed a practical guide titled “State Traffic Records Coordinating Committee Strategic Planning Guide” (DOT HS 812 773a) that States are encouraged to consult for practical, replicable processes for developing and implementing effective strategic plans.

2. Quantitative Improvement (23 CFR 1300.22(b)(2))

The BIL retained the requirement that States demonstrate quantitative progress in a significant data program attribute of a core highway safety database. This NPRM proposes no substantive changes to this application criteria. However, based on prior questions from States, NHTSA would like to clarify that a State need only submit required documentation demonstrating quantitative improvement in a single data attribute of a core highway safety database.

NHTSA continues to strongly encourage States to submit one or more voluntary interim progress reports to their Regional office prior to the application due date documenting performance measures and supporting data that demonstrate quantitative progress in relation to one or more of the six significant data program attributes. However, Regional office review of an interim progress report does not constitute pre-approval of the performance measure for the grant application.

5. Award Amounts (23 CFR 1300.22(c))

As mentioned above, NHTSA proposes to move the award amount provisions from 23 CFR 1300.20 into each individual grant program. NHTSA proposes to incorporate the statutory award allocation provision without change.

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

Four commenters addressed the use of Section 405(c) grant funds. GHSA expressed support for the expanded use of funds and specifically noted the new provisions allowing purchase of equipment for use by law enforcement for near-real time electronic reporting of crash data. WI BOTS similarly encouraged use of Section 405(c) grant funds to improve citation and crash reporting. GHSA also requested that NHTSA revise the guidance it previously issued on expenditures under the Section 405(c) grant program. The agency will review whether it needs to rescind or revise the guidance after this rule is finalized. Two commenters (FL DOH and NASEMSO) emphasized the importance of BIL's addition of the National Emergency Medical Services Information System (NEMSIS) into the Section 405(c) grant statute and encouraged use of Section 405(c) grant funds to make data quality improvements, expand access, and support applied research using NEMSIS data. The IAFC encouraged NHTSA to promote greater direct access to NEMSIS data by EMS practitioners. The regulation mirrors the BIL's inclusion of NEMSIS as a traffic safety data system.

As the commenters noted, the BIL expanded the allowable uses of grant funds awarded under this paragraph by specifying several additional allowable uses of funds. This NPRM proposes to incorporate the allowable uses of funds directly from the statute. States should note that the statute, as well as this NPRM, provides that these specified allowable uses are only allowable to the extent that they make data program improvements to core highway safety databases (including crash, citation and adjudication, driver, EMS or injury surveillance system, roadway and vehicle databases) in one of the significant data program attributes ( i.e., accuracy, completeness, timeliness, uniformity, accessibility or integration). For example, while the statute provides that States may use grant funds to purchase technology for use by law enforcement for near-real time, electronic reporting of crash data, those purchases must be tied to quantifiable, measurable progress in a program attribute ( e.g., timeliness) of a core highway safety database ( e.g., State crash data system).

E. Impaired Driving Countermeasures Grants (23 CFR 1300.23)

The impaired driving countermeasures grant program was created by the Drunk Driving Prevention Act of 1988 and codified at 23 U.S.C. 410. As originally conceived, States could qualify for basic and supplemental grants under this program. Since the inception of the Section 410 program, it has been amended several times to change the grant criteria and grant award amounts. With MAP-21, the impaired driving countermeasures grant program was consolidated into one grant program with other traffic safety grants and codified at 23 U.S.C. 405. The FAST Act made only targeted amendments to the existing grant program under MAP-21, adding flexibility to a separate grant program for States with mandatory ignition interlock laws and creating a new grant program for States with 24-7 sobriety programs.

With the recent passage of the BIL, additional targeted amendments were made to the program with the most significant changes occurring to the interlock grant program that include additional means of compliance and a use of funds section that adds several additional funding categories.

The average impaired driving fatality rate, the basis for most grant awards under this section, refers to the number of fatalities in motor vehicle crashes in a State that involve a driver with a blood alcohol concentration of at least 0.08 percent for every 100,000,000 vehicle miles traveled (VMT). Rate determinations based on FARS data from the most recently reported three calendar years for a State are then averaged to determine a final rate. These determinations are used to identify States as either low-, mid- or high-range States in accordance with the BIL requirements. The agency expects to make rate information available to the States by January each year. If there is any delay in the availability of FARS data in a given year such that it may have an effect on the awarding of grants, the agency may consider allowing the use of rate calculations from the preceding year.

The BIL continues to use the same definitions for low-, mid-, and high-range States. As the agency has noted previously, the agency will not round any rates for the purposes of determining how a State should be classified among these ranges.

1. Definitions (23 CFR 1300.23(b))

The agency proposes to slightly amend the definition of a 24-7 sobriety program to note that State or local courts can carry out a program, consistent with the BIL. 23 U.S.C. 405(d)(7)(A). The agency also proposes to delete the definitions for alcohol and drugs. These definitions were carried over from prior authorizations and are not applicable to these grant requirements. As a basis for the use of grant funds under this section, the agency has deferred to the applicable State law definitions and how the State applies the terms to define various offenses for many years. No changes to any other definitions are proposed for this section.

2. Qualification Criteria for a Low-Range State (23 CFR 1300.23(d)

States that have an average impaired driving fatality rate of 0.30 or lower are considered low-range States. As noted above, the agency will inform each State that qualifies for a grant as a low-range State. These States are not required to provide any additional information in order to receive grant funds. However, States will continue to be required to provide an assurance that they will use grants funds awarded under this section only for the implementation and enforcement of programs authorized under the statute.

The above requirements that apply to low-range States are the minimum requirements that apply to all States that receive a grant under this section.

3. Qualification Criteria for a Mid-Range State (23 CFR 1300.23(e))

States that have an average impaired driving fatality rate that is higher than 0.30 and lower than 0.60 are considered mid-range States. In accordance with the statutory requirements, States qualifying as mid-range States are required to submit a statewide impaired driving plan that addresses the problem of impaired driving. The plan must have been developed by a statewide impaired driving task force within the three years prior to the application due date. If the State has not developed and submitted a plan that meets the requirements at the time of the application deadline, then it must provide an assurance that one will be developed and submitted to NHTSA by August 1 of the grant year. Consistent with the statute, this assurance-based method of compliance is only available during the first year of the grant, covering fiscal year 2024 grants only. No assurance-based compliance is available after the first year, regardless of circumstance. If the State fails to submit the plan related to the first-year grant, the agency will seek the return of any grant funds that the State qualified for based on its assurance that it would submit the plan by the deadline, and will redistribute the grant funds to other qualifying States under this section.

In accordance with the BIL, the agency has reviewed the requirements associated with the impaired driving task force and statewide impaired driving plan and determined that some changes are necessary. The proposed changes recognize the continuing serious problem of impaired driving on our nation's roadways and the need to ensure that the approaches taken to combat the problem are sufficiently comprehensive.

For the statewide impaired driving plan, the plan continues to be organized in accordance with the general areas laid out in NHTSA's Uniform Guidelines for State Highway Safety Programs No. 8—Impaired Driving. The proposed changes to the plan requirements make clear that program management and strategic direction, as well as community engagement, are specific requirements. Although these components are features of the existing Uniform Guideline and some States have included specific related sections in their existing statewide plans, the agency seeks to reinforce the importance of these areas to the development of a comprehensive approach to the problem of impaired driving. Program management and strategic direction, in part, cover things like the development of management policies and procedures that ensure program activities are equitably and effectively undertaken and that the activities pursued have maximum value to the public. These policies also focus on identifying needs in the State to ensure sufficient funding and staffing exist to support the impaired driving activities identified. In addition, the proposal adds community engagement as a specific part of the prevention section. Although this approach follows the Uniform Guideline, States are free to identify community engagement as a separate section in their plan. A plan that provides for community engagement and seek community-supported enforcement stands a better chance of overall success. It also reinforces the BIL's requirement that States support data-driven traffic safety enforcement programs that foster effective community collaboration. 23 U.S.C. 402(b)(E)(i). Similarly, the activities should strive to include all demographics and engage prevention strategies through a variety of means. Community engagement, for example, should involve groups like schools, businesses, medical professionals, community organizers and coalitions as part of an impaired driving activity.

All qualifying plans also must be developed by a statewide impaired driving task force. As part of a more comprehensive strategy for addressing impaired driving, the proposal increases the number of required members of the task force. In addition to key stakeholders from the State highway safety office, State and local law enforcement, and representatives of the criminal justice system, public health officials, experts in drug-impaired driving countermeasures (such as a DRE coordinator), and specialists in communications and community engagement must be included. Public health officials and experts in drug-impaired countermeasures recognize the increasing prevalence of drug intoxication in impaired driving offenses, while communications and community engagement specialists add expertise on means to ensure that activities are understood and supported at local levels.

NHTSA continues the streamlined approach it took under prior authorizations for the application, only requiring the submission of one document (in addition to any required assurances and certifications)—a Statewide impaired driving plan—to demonstrate compliance with the statute. The plan document should be self-contained, including all required information without the need for appendices or references to information unless it is already contained elsewhere in the impaired driving countermeasures grant application. Within the plan document, there should be three separate sections.

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

In comments submitted to the agency, GHSA indicated that States must include a “statutory authority” to convene the impaired driving task force and recommended that NHTSA provide a means to allow States to use a “non-statutorily established impaired driving task force.” As with the prior regulation, the agency's proposal continues the requirement that a State simply identify the authority and basis for operation of the task force. This requirement does not specify that a task force have a statutory basis and only seeks a narrative statement that explains the authority. For example, if the authority is derived from the Governor's executive powers as opposed to a State law, the narrative statement can describe this basis. The critical aspect is that the State provide a reasonably clear explanation of its authority to operate and the basis to provide guidance to State and local officials on addressing impaired driving issues in the State.

The second section requires a list of task force members that includes names, titles and organizations for each person. The information must allow the agency to determine that the task force includes key stakeholders from the identified areas. The State may include other individuals on the task force, as determined appropriate, from areas such as 24-7 sobriety programs, driver licensing, data and traffic records, ignition interlock, treatment and rehabilitation, and alcohol beverage control. The goal is that the State has identified individuals from different backgrounds that will bring varying perspectives to impaired driving countermeasure activities such that a comprehensive treatment of the problem is assured.

GHSA commented on the requirement to include a list of task force members, indicating that States should be allowed to certify to the list in their HSPs if the information is already included in the impaired driving plan submission. While the agency does not have an issue with an approach where a State provides a cross-reference in one section to identical information found elsewhere in its application, we are not familiar with a specific requirement to provide the task force member information in the HSP. Without more information about the concern, we cannot fully address it in this proposal. The agency notes that with HSPs moving to a triennial requirement, the need to provide similar information in various parts of the application is lessened.

The final section requires the State to provide its statewide plan to reduce and prevent impaired driving. As noted above, the plan is required to be organized in accordance with the Highway Safety Program Guideline No 8—Impaired Driving, and cover the specified areas. Each area is defined within the guideline. Plans that do not cover the required areas are not eligible to receive a grant. States may cover other areas in their plans provided the areas meet the qualifying uses of funds (as identified in the BIL).

4. Qualification Criteria for a High-Range States (23 CFR 1300.23(f))

States that have an average impaired driving fatality rate that is 0.60 or higher are considered high-range States. In accordance with the statutory requirements, a State qualifying as high-range State is required to have conducted a NHTSA-facilitated assessment of its impaired driving program within the three years prior to the application due date or provide an assurance that it will conduct an assessment during the first grant year.

High-range States are also required to submit a statewide impaired driving plan that addresses the problem of impaired driving. The plan must have been developed by a statewide impaired driving task force (both the task force and plan requirements are described in the preceding section under mid-range States). If the State has not developed and submitted a plan that meets the requirements at the time of the application deadline, then similar to a mid-range State, the State must provide an assurance that one will be developed and submitted to NHTSA by August 1 of the grant year in order to receive a grant. Consistent with the statute, these assurances for high-range States are only available during the first year of the grant, covering fiscal year 2024 grants. No assurance-based compliance is available after the first year, regardless of circumstance. If the State fails to submit the plan, the agency will seek the return of any grant funds that it qualified for based on its assurance, and will redistribute the grant funds to other qualifying States under this section.

In addition to meeting the requirements associated with developing a statewide impaired driving plan, the plan also must address any recommendations from the required assessment. The plan also must include a detailed strategy for spending grant funds and include a description of how such spending supports the statewide impaired driving programs and will contribute to the State meeting its impaired driving program performance targets.

High-range States must update the plan in each subsequent year of the grant and then submit the updated statewide plan for NHTSA's review.

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

Under the BIL, a separate grant for States with alcohol-ignition interlock laws has been extended. The BIL made no changes to the provisions that existed in prior authorizations that provided grants to States that adopted and enforced mandatory alcohol-ignition interlock laws for all individuals convicted of a DUI offense. The statute also continues three exemptions from these mandatory interlock requirements. Specifically, a State's law may include exceptions from mandatory interlock use if—(1) an individual is required to drive an employer's motor vehicle in the course and scope of employment, provided the business entity that owns the vehicle is not owned or controlled by the individual; (2) an individual is certified in writing by a physician as being unable to provide a deep lung breath sample for analysis by an ignition interlock device; or (3) a State-certified ignition interlock provider is not available within 100 miles of the individual's residence. The agency's proposal makes no changes to these requirements and the current implementation that mandatory interlock use apply for not less than 6 months (or 180 days).

Under the BIL, two additional bases for compliance have been added to the grant. A State can receive a grant if it restricts driving privileges of individuals 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. 23 U.S.C. 405(d)(6)(ii). Separately, a State can receive a grant by requiring individuals that refuse 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. 23 U.S.C. 405(d)(6)(iii). This grant criterion also requires the State to have a compliance-based 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. Id. The proposed regulation makes some edits to these additional grant criteria, but these are not intended to be substantive changes. The agency intends to implement the statutory language in as clear a way as possible in regulation so that States understand the basis for compliance.

The agency received several comments on the new grant criteria. Brandy Nannini expressed general support for the increased number of grant criteria and the potential that more States might receive awards. A joint comment submitted by GHSA, Responsibility Initiatives, National Alliance to Stop Impaired Driving, Mothers Against Drunk Driving, National Safety Council, and Council of Ignition Interlock Manufacturers (hereinafter “group commenters”) noted the two additional methods of compliance. The group commenters also encouraged NHTSA “to utilize . . . funding to the fullest extent possible.” The proposal would incorporate into the regulation the statutory language of the additional grant criteria with only clarifying changes. The agency plans to provide grant awards to all States that demonstrate compliance.

The group commenters also provided comments on the first new criterion that requires an offender to meet an installation requirement of not less than 180 days before receiving licensing privileges. The group commenters noted that the requirement does not apply to all offenders but simply to “an individual required to show proof of installation of an interlock after conviction. . . .” As noted above, NHTSA proposes to use the statutory language as the basis for compliance determinations. To the degree the group commenters are noting the statutory basis for compliance and urging its use as the basis for determinations, the agency agrees with such an approach. Accordingly, the agency's proposal only applies the requirement to those offenders that are required to use an interlock as a result of their conviction for driving under the influence.

The agency also received comments on the second new criterion. As a general matter, the group commenters noted that the criterion “components are to be read together” and the State must satisfy both requirements to qualify for a grant. The agency agrees that the structure of the criterion has three distinct requirements, and the State must demonstrate compliance with each to receive a grant. The group commenters also noted that the statute is clear “that the State law only requires a sanction be imposed” and that criminal convictions are not necessary. The agency agrees with the observation that the criterion covers more than just the individuals convicted of a refusal and that the installation requirement also covers those administratively sanctioned for test refusal. In order to meet this component, in accordance with the statute, State law must show that for each type of offender required to install an interlock, the interlock period must be for not less than 180 days.

For the compliance-based removal program, the agency received comments from the group commenters and, individually, from GHSA. The group commenters touted the compliance-based removal process as something that “will better ensure that individuals who are at risk of recidivism remain on the ignition interlock until behavior has changed to better ensure public safety.” The group commenters also noted that “this criterion is met if an individual is required to meet a States' compliance based removal standard rather than the requirement that it is mandatory for all individuals who install an ignition interlock.” In accordance with the statute, the agency's proposal does not apply to all individuals who install interlocks, but only to those convicted of the specified offenses and also ordered to use an interlock. State law will need to apply the compliance-based program requirements to those offenders. Under the requirement, the group commenters also requested that “NHTSA should show flexibility and should work with states to define what constitutes a program violation.” GHSA went further in a separate comment to request that NHTSA not limit eligibility for what qualifies as compliance-based removal. GHSA noted that “States have established a range of typical program violations [and] . . . may consider additional violations and future new best practices. . . .” Accordingly, GHSA urges “NHTSA not to limit State eligibility with a restriction that may be difficult to update.” In general, we agree with the approach and do not believe it is necessary to define specifically what constitutes a program use violation under the grant. Accordingly, the agency will defer to the States on program violations. In the application, States must still identify compliance-based removal information, specifying the period of the installation requirement and separate information indicating the completion of a minimum consecutive period of not less than 40 percent of the required period of ignition interlock installation (immediately preceding the date of release of the individual without a confirmed violation of the program use requirements).

6. Grants to States With a 24-7 Sobriety Program (23 CFR 1300.23(h))

The agency's proposal continues a separate grant for States with 24-7 sobriety programs consistent with the statutory requirement. Although the definition of a 24-7 sobriety program has been slightly amended to note that State or local courts can carry out a program, this does not affect the qualifying basis for a grant. 23 CFR 1300.23(b).

The first requirement mandates that a State enact and enforce a law that requires all individuals convicted of driving under the influence of alcohol or of driving while intoxicated to receive a restriction on driving privileges for at least 30 days. The second requirement mandates that a State provide a 24-7 sobriety program. States should continue to submit information identifying a State law or program that authorizes a 24-7 sobriety program in line with the statutory requirement.

GHSA commented that States should qualify on the basis of identifying a State statute authorizing “local 24/7 sobriety programs.” The basis for compliance is a determination of whether the State law or program meets the definition of a 24-7 sobriety program. The entities that carry out the State law or program are not part of the evaluation. A State law could be submitted that authorizes local courts to carry out a 24-7 sobriety program, for example. Provided the State law meets the statutory definition of a 24-7 sobriety program it would be eligible for a grant.

7. Award Amounts (23 CFR 1300.23(i))

As in the explanation for 23 CFR 1300.20, above, in today's action, the agency proposes to move award allocation provisions from the general section of the rule into the specific grant programs. We propose to incorporate the statutory allocation provisions without substantive change.

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

The BIL specifies the eligible uses of the grant funds, and the agency's proposal codifies those uses without change. With the exceptions discussed below, grant funds may be distributed among any of the uses identified in the BIL. The agency has adopted in its proposal the statutory basis for using grant funds depending on whether the State has qualified as a low-, med- or high-range State or is receiving separate grant funds as a State with either alcohol-ignition interlock laws or 24-7 sobriety programs. No changes have been made to these requirements.

The agency received comments related to the specific uses of grant funds that were added in the BIL. Brandy Nannini submitted a comment that expressed support for some of these new grant uses as being important to state success. The comment specifically mentioned the ability to use funds to backfill officers during drug recognition expert (DRE) training and, separately, to purchase new screening and testing technologies. In a related comment, GHSA urged that NHTSA should “allow the use of [grant] funding to temporarily replace officers in DRE training or serving as a DRE instructor” to include “funding for compensation for officers who are not involved in grant-eligible activities.” Under the BIL, a new provision allows grant funding to be used to provide compensation for a law enforcement officer to carry out safety grant activities while another law enforcement officer involved in safety grant activities is away receiving drug recognition expert training or participating as an instructor in drug recognition expert training. This backfill provision allows police agencies to send officers to training without sacrificing overall levels of service. By its terms, however, the statutory provision limits compensation to law enforcement officers that carry out safety grant activities. 23 U.S.C. 405(d)(4)(B)(iii). Regardless of whether “safeguards” could be deployed to limit potential abuse of GHSA's desired approach, the statutory language is clear and does not support compensation for other than safety grant activities. Where the language is unambiguous, the agency must follow the statute as written.

GHSA also provided a comment indicating that “States have expressed a sense of ambiguity whether they can spend federal funds in support of oral fluid testing programs and other leading technological applications to address impaired driving that may often not yet be considered `proven effective countermeasures.' ” GHSA recommends that NHTSA allow funds to be used to test and implement new allowable initiatives. Under the BIL, a new provision allows funds to be used for “testing and implementing programs, and purchasing technologies, to better identify, monitor, or treat impaired drivers, including . . . oral fluid-screening technologies.” 23 U.S.C. 405(4)(xi). On that basis, States are allowed to use funds for such expenditures. However, all requirements associated with grant expenditures under this regulation and 2 CFR part 200 would apply to such uses. Because such expenditures have the potential to result in wasteful uses of Federal taxpayer funds, States should expect NHTSA to apply the uniform administration requirements to such activities, including such general concepts as reasonableness, allowability, and allocability of any proposed funding. In addition, States are reminded that equipment only purchases are not permitted and any such purchases would need to be carried out as part of an approved traffic safety activity that meets all associated requirements. Further, the statute explicitly states that these technologies are eligible as part of “developing and implementing programs.” Accordingly, the agency will not approve the purchase of any technologies that are not part of a State's activities to develop and implement an eligible program.

The National Sheriffs' Association recommended that NHTSA consider funding to encourage State legislation related to stricter penalties for impaired driving. NHTSA notes that this is not a specified allowable use of funds under the BIL and that Federal grant funds may not be spent on lobbying.

F. Distracted Driving Grants (23 CFR 1300.24)

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

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. At least 50 percent of the Section 405(e) funds are available to States that include distracted driving awareness as part of the driver's license examination, and not more than 50 percent of the Section 405(e) funds are available to States for distracted driving laws.

1. Distracted Driving Awareness Grant (23 CFR 1300.24(c))

The basis for a Distracted Driving Awareness Grant (“Awareness Grant”) is the requirement that the State test for distracted driving awareness as part of the State driver's license examination. 23 U.S.C. 405(e)(2). Typically States have a battery of questions that are randomly assigned to an examinee in a “regular” or “normal” driver's license examination. If distracted driving awareness is included as part of the battery of random questions, the State may be eligible for an Awareness Grant. To demonstrate this requirement, NHTSA proposes that the State submit at least one sample distracted driving question from its driver's license examination as part of its application.

In a letter to NHTSA, GHSA interpreted the changes in the BIL as automatically distributing 50 percent of the section 405(e) funds to all States but limiting State expenditure to the authorized uses under Section 405(e)(8). This interpretation is not supported by the statutory language. The Section 405(e)(2) Grant Program specifies that NHTSA “shall provide a grant . . . to any State that includes distracted driving awareness as part of the driver's license examination of the State.” This provision would have no meaning under GHSA's interpretation of automatic distribution of the distracted driving grant funds. For this reason, NHTSA believes that that at least 50 percent of the distracted driving grant funds are to be allocated to States that include distracted driving awareness as part of the State's driver's license examination.

2. Distracted Driving Law Grant (23 CFR 1300.24(d))

The BIL sets out three different types of laws for which a State may qualify for a Distracted Driving Law Grant (“Law Grant”): (1) prohibition on texting while driving; (2) prohibition on handheld phone use while driving; and (3) prohibition on youth cell phone use while driving. 23 U.S.C. 405(e)(3)(B). In its letter, GHSA interpreted the changes in the BIL as allocating the “remaining 50%” among States with a qualifying distracted driving law for banning texting, banning handheld use, or banning teen cell phone use. GHSA further claimed that States are eligible for an “extra 25% of their apportionment” if the State prohibits a driver from viewing a device while driving. NHTSA agrees with GHSA that a State can qualify for a grant under Section 405(e) with a either law banning texting while driving, handheld use while driving, OR youth cell phone use while driving. However, the agency does not agree that States are eligible for an extra 25 percent for prohibiting viewing while driving. Such an interpretation is not supported by the language of the statute. Section 405(e)(3)(B)(iv) states that “the allocation under this subparagraph to a State that enacts and enforces a law that prohibits a driver from viewing a personal wireless communications device (except for purposes of navigation) shall be 25 percent of the amount calculated to be allocated to the State under clause (i)(I).” This language does not provide an additional or extra allocation. A further point against such an interpretation is that it might not be executable. For example, if all States qualified for a primary distracted driving law grant, each State would receive 100 percent of the allocated amount, and no additional funds would be available to distribute an extra 25 percent to States that also prohibit viewing while driving.

While this statutory language is not without ambiguity, the agency believes that in order to give meaning to all provisions in Section 405(e)(3), a State may be eligible for 25 percent of the State's allocation if the State law prohibits viewing a personal wireless communications device and does not meet the criteria for a law banning texting while driving, handheld use while driving, OR a youth cell phone use while driving. The BIL appears to set out a structure to incentivize States with higher grant awards to enact and enforce stricter distracted driving laws, e.g., 100 percent for primary texting compared to 50 percent for secondary texting. By allocating grant funds to a State with a law that only prohibits viewing while driving, the statute limits that allocation to the smallest amount, i.e., 25 percent. As a result, a State may qualify for 100 percent for a primary texting, handheld or youth law; 50 percent for a secondary texting, handheld or youth law; or 25 percent for a law prohibiting the viewing of a personal wireless communications device.

Accordingly, the agency proposes making a grant to a State for a conforming law that prohibits one of the following: (1) texting while driving; (2) handheld phone use while driving; (3) youth cell phone use while driving; or (4) viewing while driving. The agency further proposes that a State that is able to meet more than one of these eligibility requirements would be approved for the award that results in the highest grant amount. The statute prescribes in detail the criteria for a conforming law, including definitions and exceptions. As discussed below, the agency proposes to adopt the criteria, including definitions and exceptions, without change.

i. Definitions (23 CFR 1300.24(b))

The statute defines the terms driving, personal wireless communications device, text, and text message. While the definition of driving remains unchanged, the BIL changed the definition of personal wireless communications device adding the following to the existing definition: “a mobile telephone or other portable electronic communication device with which a user engages in a call or writes, sends, or reads a text message using at least 1 hand.” 23 U.S.C. 405(e)(1)(B). It is the agency's understanding that this language captures a subset of devices that is already covered under the existing language ( i.e., a device through which personal wireless services are transmitted). Therefore, this amendment would not substantively change the devices covered by the existing definition. The BIL also changed the FAST Act's term for “texting” to “text” and also added “manually to enter, send, or retrieve a text message to communicate with another individual or device” to the essentially unchanged definition. 23 U.S.C. 405(e)(1)(E). Similarly, the added language includes a smaller subset of behaviors that were already included under the original language ( i.e., to read from, or manually to enter data into, a personal wireless communications device); and this addition would not substantively change the definition of “text”. Finally, the BIL added a new definition for “text message.” 23 U.S.C. 405(e)(1). NHTSA proposes to adopt these statutory definitions without change.

ii. Prohibition on Texting While Driving (23 CFR 1300.24(d)(1))

The BIL retained much of the FAST Act requirements for a conforming law prohibiting texting while driving. In order to qualify, the statute provides that the State law must prohibit a driver from texting through a personal wireless communications device while driving; must establish a fine for a violation of the law; and must not provide for an exemption that specifically allows a driver to use a personal wireless communications device for texting while stopped in traffic. The BIL changed the FAST Act requirement for a minimum fine by striking “minimum.” To implement this change, the agency deletes the existing requirement for a minimum fine of $25, which the agency implemented in the MAP-21 and FAST Act rulemakings. NHTSA proposes to adopt the statutory language without change. Finally, the agency notes that the BIL removes primary enforcement of the texting law from the qualification requirements, and as discussed above, allows the State to receive 100 percent of its allocation if the State's conforming law is enforced as a primary offense.

iii. Prohibition on Handheld Phone Use While Driving (23 CFR 1300.24(d)(2))

The prohibition on handheld phone use while driving is new under the BIL. The statutory language is clear that the State law must prohibit a driver from holding a personal wireless communications device while driving in order to satisfy this component for a conforming law prohibiting handheld phone use while driving. The State law must also satisfy two additional components for a qualifying law, the same as those for a prohibition on texting while driving law—establish a fine for a violation of the law and not provide an exemption that specifically allows a driver to use a personal wireless communications device for texting while stopped in traffic. NHTSA proposes to adopt these provisions without change.

iv. Prohibition on Youth Cell Phone Use While Driving or Stopped in Traffic (23 CFR 1300.24(d)(3))

As with the prohibition on texting while driving law, the BIL retained much of the FAST Act requirements for a conforming law prohibiting youth cell phone use while driving. However, the BIL amended the requirement for a youth law by striking the reference to the State Graduated Driver Licensing Incentive Grant, which was repealed. Instead, the State law must now prohibit a driver from using a personal wireless communications device while driving if the driver is under 18 years of age or in the State's learner's permit or intermediate license stage in order to qualify for a grant. Graduated driver licensing, also known as a multi-stage licensing process, is a three-phase system for beginning drivers consisting of a learner's permit, an intermediate or provisional license, and a full license. A learner's permit allows driving only while supervised by a fully licensed driver. An intermediate or provisional license allows unsupervised driving under certain restrictions, such as nighttime or passenger restrictions. While the graduated driver licensing program differs from State to State, the agency does not intend to define any specific requirements for the learner's permit or intermediate license stages. In order to satisfy this component, the State law must prohibit a younger driver in the State's learner's permit or intermediate license stage from any use of a personal wireless communications device while driving. Note that the State law must not provide an exemption for hands-free use. Similar to the texting law discussed above, the BIL also strikes “minimum” from the fine requirement and removes primary enforcement from the qualification requirements, and the agency proposes to adopt these changes without change.

v. Prohibition on Viewing a Personal Wireless Communications Device While Driving (23 CFR 1300.24(d)(4))

As discussed above, the statute is not specific regarding the allocation for a State that enacts and enforces a law that “prohibits a driver from viewing a personal wireless communications device (except for purposes of navigation).” The BIL incentivizes States to enact and enforce three different types of laws (prohibition on texting while driving, handheld phone use while driving, and youth cell phone use while driving), with higher grant amounts for the strictest of these laws, e.g., States with primary enforcement laws receive 100 percent of their allocation and States with secondary enforcement laws receive 50 percent of their allocation. The agency believes that by awarding a still smaller percentage of the State's allocation (25 percent) for a law that prohibits a driver from viewing a personal wireless communications device, Congress intended that lower threshold to result in an award only when a State could not meet the higher threshold of any one of the other three laws identified in the statute. For this reason, the agency proposes that a State law that simply prohibits viewing a personal wireless communications device (except for navigation purposes) would meet the requirements for this grant. The agency proposes that no other elements, e.g., fine, restricted exceptions, applicable to the other distracted driving laws would apply for this grant.

3. Award Amounts (23 CFR 1300.24(e))

For both grants, the BIL specifies how grant funds are allocated among the States—based on the proportion that the apportionment of the State under section 402 for fiscal year 2009 bears to the apportionment of all States under section 402 for that fiscal year. 23 U.S.C. 405(e)(3). In determining the grant award under each distracted driving grant, NHTSA proposes to apply the section 402 apportionment formula for fiscal year 2009 as if all States qualified for grants and then make awards to qualifying States based on the application of the formula.

4. Use of Funds (23 CFR 1300.24(f))

The BIL made no changes to the use of funds for a distracted driving grant. However, NHTSA proposes to amend the language for demonstrating conformance with MMUCC. In 2020, NHTSA mapped States' conformance with the most recent MMUCC. Instead of requiring States to complete the NHTSA-developed MMUCC Mapping spreadsheet within 30 days, NHTSA proposes to require States to submit its most recent crash report with the distracted driving data element(s) within 30 days of award. NHTSA can then confirm whether the State's distracted driving data element(s) conform(s) to the most recent MMUCC.

G. Motorcyclist Safety Grants (23 CFR 1300.25)

In 2005, Congress enacted SAFETEA-LU, which authorized the Motorcyclist Safety Grants under section 2010. This grant program has largely remained unchanged since it was established, despite several revisions to the National Priority Safety Programs (23 U.S.C. 405).

Under BIL, Congress amended the Motorcyclist Safety Grants by increasing the number of criteria available for a state to qualify for a grant to seven from six and made a minor terminology change to “crash” from accident in two paragraphs. A State is eligible under the new criterion if a State has a helmet law that requires the use of a helmet for each motorcycle rider under the age of 18. 23 U.S.C. 405(f)(3)(C). With the addition of this criterion, States qualify for a grant by meeting two of the following seven grant criteria: Motorcycle Rider Training Course; Motorcyclists Awareness Program; Helmet Law; Reduction of Fatalities and Crashes Involving Motorcycles; Impaired Driving Program; Reduction of Fatalities and Crashes Involving Impaired Motorcyclists; and Use of Fees Collected from Motorcyclists for Motorcycle Programs. The BIL made no additional amendments to the Motorcyclist Safety Grants. Today the agency proposes amendments to 1300.25 to incorporate these changes and to update references to planned activities in the annual HSP for the new triennial framework. We discuss the new Helmet Law criterion in further detail below. NHTSA received no comments related to the Motorcycle Safety Grants.

1. Helmet Law Criterion (23 CFR 1300.25(c))

To be eligible for a Motorcyclist Safety Grant under this criterion, the BIL requires that a “State shall have a law requiring the use of a helmet for each motorcycle rider under the age of 18.” SeePublic Law 117-58, section 24105(a)(6). We interpret this to require a mandatory helmet law for all riders under 18 years of age with no exceptions. This view is based upon language of the statute and the existing definition “motorcycle” in § 1300.25. The express language of the statute requires a State that seeks to qualify under this criterion to have a mandatory helmet law for all individuals under 18 that ride on a motorcycle. Under § 1300.25, a motorcycle means “a motor vehicle with motive power having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground.” 23.CFR 1300.25(b). Under today's proposed action, a State law that exempts any individual under age 18 or any vehicle meeting the definition of a motorcycle, such as a moped or a low speed vehicle, from its helmet law would not qualify under the criterion. To demonstrate compliance with this criterion, a State will have to submit, in accordance with part 7 of appendix B, the citation to the State law that requires the use of a helmet for each motorcycle rider under the age of 18.

2. Award Amounts (23 CFR 1300.25(l))

As described above, NHTSA proposes to address award amounts in the grant-specific sections. NHTSA therefore proposes to incorporate the statutory award distribution formula and limitation for the motorcyclist safety grant in the regulatory text at 23 CFR 1300.25(l).

H. Nonmotorized Safety Grants (23 CFR 1300.26)

The FAST Act introduced the nonmotorized safety grant as part of the National Priority Safety Programs, recognizing the need for a stand-alone safety grant for roadway users outside the motor vehicle. The BIL changed the nonmotorized safety grant to help address the recent exponential rise in pedestrian and bicyclist fatalities and the growing use of low-powered or nonmotorized personal transportation devices such as e-scooters and electric bicycles (which it defines as non-motorized). Pedestrian and bicyclist fatalities have continued to rise, from 14 percent of total motor-vehicle-related traffic fatalities in 2009 to approximately 19 percent today. Further, micromobility, which includes such vehicles as e-scooters, e-bikes and other low-speed personal transporters, is a mode of transportation that both holds promise for users with physical challenges and offers more affordable mobility. However, micromobility is changing rapidly and growing in use, and States are struggling to keep pace with these emerging modes of transportation and their safety implications.

Research-driven and innovative countermeasures and strategies that address safety and accessibility problems can significantly differ for pedestrians, bicyclists, or micromobility users. States often make significant roadway infrastructure improvements, such as raised crosswalks, narrowing lanes, separated bike lanes, or pedestrian refuge islands, to create safe, accessible and equitable transportation for nonmotorized users. However, behavioral safety countermeasures, such as outreach, education, community engagement, enforcement, and data analysis are essential for a comprehensive approach to nonmotorized road user safety. The Section 405(g) grant aims to address the unique needs of nonmotorized roadway users with non-infrastructure investments.

1. Eligibility Determination (23 CFR 1300.26(b))

Similar to the grant under the FAST Act, States are eligible for a nonmotorized safety grant under the BIL if the State's nonmotorized road user fatalities in the State exceed 15 percent of the total annual crash fatalities in the State, based on the most recent final FARS data. However, while the FAST Act specified combined pedestrian and bicyclist fatalities, the BIL expands the definition of nonmotorized road user to a pedestrian; 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. NHTSA plans to adopt this definition without change. Using FARS data, NHTSA proposes to calculate the percentage of each State's annual nonmotorized road user fatalities in relation to the State's annual total crash fatalities, using Statistical Analysis System (SAS) software and truncating the calculation. Consistent with the statute, all States that exceed 15 percent will be eligible for a grant.

The agency proposes to inform each State that is eligible for a grant prior to the application due date.

2. Qualification Criteria (23 CFR 1300.26(c))

To qualify for a grant under this section, NHTSA proposes to change the self-certification as the application for a nonmotorized safety grant under the previous regulation and require States to submit a list of project(s) and subrecipient(s) information the State plans to conduct in the fiscal year of the grant consistent with § 1300.12(b)(2). NHTSA believes that this aligns the application requirements for the nonmotorized safety grants with the other highway safety grants.

3. Use of Funds (23 CFR 1300.26(d))

The BIL makes significant amendments to the use of funds for the nonmotorized safety grant program. Under the FAST Act, the statute 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. This not only presented challenges to the States in terms of identifying narrowly defined projects in communities where the greatest need exists, but also failed to address the unique needs of each community's nonmotorized crash problem. As noted by several commenters, the BIL expands the eligible uses to the safety of nonmotorized road users, as defined by the statute. See GHSA; League of American Bicyclists. Activities related to State traffic laws on nonmotorized road user safety continue as allowable uses under the statute, but the broadened eligible use of funds will 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.

The Safe System Approach intentionally broadens the focus of addressing highway safety problems, such as nonmotorized road user safety, to more systemic, community-level strategies. Using the Safe System Approach and a comprehensive problem identification process as guiding principles, each community's nonmotorized safety grant project within each State's highway safety program will likely be unique. State highway safety offices are well-positioned to ensure nonmotorized safety grant funds are directed to the communities most overrepresented in crashes from their State-level data analysis. However, pedestrian, bicycle and micromobility safety programs cannot be developed as a one-size-fits-all approach. In order to be effective, States should customize their approach to meet each community's specific needs, based on problem identification that involves not only crash and exposure data, but also demographic analysis, observational surveys and community assessments. Depending on the specific community's problem identification, for instance, States may use grant funds for expanded eligible uses, such as Walking Safety Assessments, nonmotorized community traffic safety programs, costs related to outreach, and staffing a pop-up bicycle lane.

Several organizations and members of the public commented on the use of funds for the nonmotorized safety grant. One commenter, Tom Schwerdt, recommended that designs need to be changed to get cyclists and pedestrians out of the roadway. The BIL specifies eligible uses for the nonmotorized grant funds, and the statute does not allow them to be used for infrastructure designs. However, States may use grant funds to raise public awareness and provide education to inform road users of infrastructure designed to improve nonmotorized road user safety. See League of American Bicyclists. The League of American Bicyclists also commented that NHTSA and States should engage community groups to build support for infrastructure safety improvements that will influence road user behavior and address systemic racism that has led to disparities and roadway fatalities, including to nonmotorized road users. Under the expanded eligible use of funds for nonmotorized grants, States may use grant funds for the safety of nonmotorized road users, including engaging with community groups. In addition, NHTSA is engaging with other Department of Transportation modal administrations and outside stakeholders on ways to influence road user behavior and address disparities in roadway fatalities. While Love to Ride suggested that the agency list specific eligible uses of funds, NHTSA does not believe that such an approach would serve the interests of the flexibility afforded by the statute, and proposes instead to adopt the broad statutory language. NHTSA notes that many of these uses, such as training (virtually or in-person), are allowable uses of funds under the nonmotorized grant program and Section 402 grants.

I. Preventing Roadside Deaths Grants (23 CFR 1300.27)

The BIL created a new Preventing Roadside Death grant program, authorizing grants to prevent death and injury from crashes involving motor vehicles striking other vehicles and individuals stopped at the roadside. The purpose of the new grant program is to support State efforts to decrease roadside deaths involving vehicles and pedestrians on the side of the road. NHTSA proposes a new § 1300.27 to implement the Preventing Roadside Death grant program.

The agency received several comments that acknowledge the safety risk posed by disabled vehicles and supported the Preventing Roadside Death grant program for both first responders and civilians. ESS submitted comments that underscore the prevalence of deaths and injuries and the increased harm that results to individuals and first responders when a vehicle is disabled on the side of the road. It demonstrated that roadside crashes disproportionately affect low-income and African American communities.

1. Definitions (23 CFR 1300.27(b))

The BIL did not define terms in section 23 U.S.C. 405(h). In order to provide clarity, today's proposal includes definitions for digital alert technology, optical visibility, and public information campaign. The agency developed these definitions based on what we consider common understanding of the terms. We seek comment on these proposed definitions.

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

As directed by the BIL, a State is eligible for a Preventing Roadside Death grant if it submits a plan that describes the method by which the State will use grant funds according to the eligible uses identified in the statute. 23 U.S.C. 405(h). Consistent with the BIL, NHTSA proposes that States submit a plan that requires information familiar to States and is consistent with the type of information States provide in other plans provided to NHTSA. Accordingly, we propose that the State's plan, at a minimum, list the eligible use(s) selected, identify the specific safety problems to be addressed, and specify the performance measures and targets, and the countermeasure strategies and projects that implement those strategies, that the State will use to address those problems. We seek comments on the proposed criteria to be included in the State's plan and whether additional information should be included in the plan.

3. Award Amounts (23 CFR 1300.27(d))

The agency incorporates the statutory award allocation provision into the regulation.

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

The BIL specifies with particularity how States may use Preventing Roadside Death grant funds. 23 U.S.C. 405(h)(4). Today, we propose to adopt the BIL language without change.

NHTSA received several comments related to use of funds under this grant program. ESS notes that the statute authorizes the use of funds to “pilot and incentivize measures, including optical visibility measures, to increase the visibility of stopped and disabled vehicles” (23 U.S.C. 405(h)(4)(E)) and encourages the agency to promote the grant to address the disabled vehicle safety issue. Another vendor, Haas Alert, encourages NHTSA to address impediments that exist for a State to apply for a grant such as contract administration costs and the inability of private industry to subcontract with States. Meanwhile, Paul Hoffman encourages the agency to promote enforcement and educational activities under the Preventing Roadside Death grant. The International Association of Fire Chiefs also encourages driver education to improve first responder safety. The use of grant funds authorized by Congress in BIL, and incorporated by the agency into the proposed rule, covers all of the activities (and also supports data collection activities) that were raised by commenters. As is typical of all Federal grants, States must adhere to 2 CFR part 200 requirements when administering grant funds awarded under the Preventing Roadside Deaths grant. These requirements apply to all Federal grantees and address contract administration and subrecipient requirements. NHTSA notes that Federal rules do not prohibit States from contracting with private entities.

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. 23 U.S.C. 405(i). As described below, States may also qualify for a grant under this section if they can demonstrate that they have taken meaningful steps toward full implementation of such programs.

1. Definitions (23 CFR 1300.28(b)

This NPRM proposes to adopt the definition of “peace officer” directly from the statute. 23 U.S.C. 405(i)(1). NHTSA also provides a definition for driver education and driving safety course to clarify the types of courses/programs that can qualify for the grant.

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

The BIL provides that States may qualify for a driver and officer safety education grant in one of two ways: (a) 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; 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. 23 U.S.C. 405(i)(4). We discuss these qualification criteria in more detail below.

i. Driver and Officer Safety Law or Program (23 CFR 1300.28(d))

The BIL provides that one way a State may qualify for a grant under this section is with a law or program requiring that driver education and driver safety courses provided by educational and motor vehicle agencies of the State include instruction and testing materials relating to law enforcement practicing during traffic stops, covering the role of law enforcement, duties and responsibilities of peace officers, the legal rights of individuals, best practices for civilians and peace officers during interactions, consequences for failure to comply with the law or program, and information regarding how to file complaints or compliments relating to a police officer. 23 U.S.C. 405(i)(4)(A). NHTSA incorporates the requirements for the State's law or program directly from the statute. NHTSA proposes regulatory text to provide clarity to States regarding how to demonstrate compliance with the requirements, whether applying with a legal citation or with documentation, including a certification from the GR and course materials demonstrating that the State is implementing a compliant program.

ii. Peace Officer Training Programs (23 CFR 1300.28(d)(2)

The BIL provides that another way a State may qualify for a grant under this section is by having either a law or program requiring that the State develop and implement a training program for peace officers and reserve law enforcement officers with respect to proper interaction with civilians during traffic stops. 23 U.S.C. 405(i)(4)(B). NHTSA proposes to incorporate those requirements without change. NHTSA proposes regulatory text to provide clarity to States regarding how to demonstrate compliance with the requirements, whether applying with a legal citation or with documentation, including a certification from the GR and course materials demonstrating that the State is implementing a compliant training program.

iii. Qualifying State (23 CFR 1300.28(e))

If a State is unable to apply for a grant under the two options described above, the BIL provides a third, though time-limited way, for a State to qualify for a grant under this section. The BIL allows a State that has not fully enacted or adopted a compliant law or program to qualify for a grant if it can demonstrate that it has taken meaningful steps toward full implementation of such a law or program, including establishment of a timetable for implementation. 23 U.S.C. 405(i)(7). States may only receive a grant under this section for 5 years. Id. In this NPRM, NHTSA proposes that States applying under this criterion provide, at a minimum, either (1) a proposed bill that has been introduced, but not yet enacted into law, or (2) official planning or strategy document(s) that identify the actions the State has taken and still plans to take to develop and implement a qualifying law or program. States must also provide a timetable demonstrating that the State will implement the law or program within 5 years of first applying as a qualifying State.

3. Matching (23 CFR 1300.28(f))

The BIL provides that the Federal share of the cost of carrying out an activity funded through a grant under this program may not exceed 80 percent. 23 U.S.C. 405(i)(3). NHTSA proposes to implement this requirement without change.

4. Award Amounts (23 CFR 1300.28(g))

The BIL specifies that grant funds under this section shall be allocated in proportion to the apportionment of that State under Section 402 in fiscal year 2022. 23 U.S.C. 405(i)(6). The BIL further specifies, however, that NHTSA shall withhold 50 percent of grant funds that would be allocated under that formula from States that qualify as a “qualifying State” ( i.e., that are not yet implementing a qualifying law or program). 23 U.S.C. 405(i)(7)(B). It further provides that the withheld funds must be distributed to the States that qualified with fully implemented laws or programs. Id. NHTSA proposes to adopt this allocation structure without substantive change.

5. Use of Grant Funds (23 CFR 1300.28(h))

The BIL laid out specific allowable uses of grant funds under this grant program. Specifically, BIL provides that States may use driver and officer safety education grant funds for the production of educational materials and training of staff and for the implementation of a qualifying law or program. 23 U.S.C. 405(i)(5). This NPRM proposes to incorporate the uses of funds directly from the statute without change.

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

Section 1906 of SAFETEA-LU established an incentive grant program to prohibit racial profiling. The BIL continues the intent of the Section 1906 grant program, 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. BIL revised several aspects of the Section 1906 Program.

1. Award Amounts (23 CFR 1300.29(c))

For Section 1906, the BIL, like the FAST Act, does not specify how the grant awards are to be allocated. Under the FAST Act, NHTSA allocated Section 1906 grant awards in the same manner as the Section 405 grants. However, as described elsewhere in this preamble, the BIL diversified the allocation formulas for the Section 405 grants so that there is no longer a default formula. In order to ensure the most up-to-date distribution of funds, NHTSA proposes to apply the same formula that Congress developed for the two new Section 405 grants under BIL (Section 405(h) and 405(i)) to the Section 1906 grants. Accordingly, NHTSA proposes to allocate grant funds in proportion to the apportionment of the State under Section 402 for FY 2022.

The FAST Act placed two limitations on States' ability to receive grant funds under Section 1906. The BIL removed the limitation that provided that a State may not receive a grant by providing assurances for more than 2 fiscal years. The BIL amended the other limitation, which provided a 5 percent maximum amount limitation on a State's total grant award. Specifically, the BIL specified that the total amount provided to a State that qualifies using official documentation may not exceed 10 percent of the amount made available to carry out this section in that fiscal year; and that the total amount provided to a State that qualifies by providing assurances may not exceed 5 percent of the amount made available to carry out this section in that fiscal year. The agency proposes to incorporate these revisions into the regulatory text.

2. Use of Grant Funds (23 CFR 1300.29(d))

The BIL extended 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. This NPRM proposes to incorporate those uses directly from the statutes. States should note the specific allowable uses of the grant funds are only allowed to the extent that they carry out the intent of the grant program, which is to reduce the disparate impact of racial profiling during traffic stops and to encourage States to maintain and allow public inspection of statistical information on the race and ethnicity of the driver for all motor vehicle stops on Federal-Aid Highways. For example, States may conduct outreach to law enforcement agencies that is geared toward data collection, evaluation of data reports, and implementation of changes to address issues found in data reports.

Several commenters (Institute for Municipal and Regional Policy (IMRP), GHSA, and TEC) expressed broad support for the 1906 grant program and the expanded use of funds authorized by the BIL. Specifically, both IMRP and the Vision Zero Network submitted comments recommending the use of 1906 grant funds for efforts beyond data collection and analysis, such as police training programs, community outreach and engagement, collection and analysis of pedestrian data. The League of American Bicyclists called for NHTSA to encourage States to apply the 1906 Program not just to traffic stops of motor vehicle drivers, but to traffic stops of pedestrians and bicyclists. As stated above, NHTSA proposes to incorporate the new statutorily allowed use of funds provision that allows use of funds to develop and implement programs to reduce the impact of racial profiling during traffic stops. Traffic stops of nonmotorized road users, including pedestrians and bicyclists, may potentially be included in the data collection as they are a component of traffic safety. However, States should be aware that statutory use of funds provision is limited to traffic stops, so any stop of a nonmotorized road user that is covered by the program would have to occur in that context.

Multiple commenters expressed strong support for the BIL's provision that ten percent of the amount available to carry out Section 1906 may be used by NHTSA to provide technical assistance to States. IMRP recommended that NHTSA hire a technical consultant to help more States develop a meaningful program under the 1906 guidelines. Similarly, the League of American Bicyclists suggested that NHTSA identify a third party to actively promote the Section 1906 Program to States that qualify and requested that NHTSA highlight best practices for 1906 programs. NHTSA intends to provide needed technical assistance and will take these comments into consideration as it determines what technical assistance would be most useful to States.

Finally, the IMRP called for the data collected under the 1906 Grant Program to be submitted to a national data repository to help NHTSA and other Federal and State partners access data to continue furthering research on practices to achieve a safe, fair, and equitable traffic enforcement system. While NHTSA appreciates the value such a repository would provide, the BIL does not provide NHTSA with the authority to require States to submit such data and no such national data repository currently exists.

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

Subparts D, E and F provide post-award requirements for NHTSA's highway traffic safety grant program. This includes rules governing the administration and closeout of the grants, as well as consequences for non-compliance with grant requirements.

A. Nonsubstantive Changes

With the exception of the sections discussed below, NHTSA proposes only nonsubstantive changes to the regulatory requirements in subparts D, E, and F. The nonsubstantive changes are limited to updating references to the annual HSP to adjust for the new triennial framework and providing updated citations resulting from OMB's revisions to the Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, 2 CFR part 200.

B. Updated Administrative Procedures of Note

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

1. Equipment (23 CFR 1300.31)

NHTSA proposes to add a sentence to make clear that equipment may only be purchased if necessary to perform eligible grant activities or if specifically authorized as an allowable use of funds. 23 CFR 1300.32(b). This is not a new requirement; the proposed addition merely incorporates and makes clearer a long-standing requirement into NHTSA's grant rule.

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

Under the FAST Act, NHTSA provided a regulatory procedure for States to submit amendments to the annual HSP. Under the BIL, States must, at a minimum, be allowed to amend the annual grant application to provide updated project and subrecipient information. See23 U.S.C. 402(l)(1)(C)(ii). In addition, although the annual grant application allows an opportunity for States to update the triennial HSP once a year, NHTSA recognizes that States may need to provide updates to the triennial HSP more frequently. See GHSA. For instance, a State might identify a new traffic safety problem or a change in conditions, such as a natural disaster, could occur such that a State's planned countermeasure strategy needs to be adjusted mid-grant-year. As a result, States may have a need to submit amendments to either the triennial HSP or the annual grant application or both. However, because the annual grant application includes a section that provides for updates to the triennial HSP, NHTSA proposes that a State may amend either the annual grant application or the triennial HSP through an amendment to the annual grant application. With this action, NHTSA proposes to provide procedures for amendments to annual grant applications at 23 CFR 1300.32.

GHSA commented that NHTSA should maintain the current HSP amendment process for annual grant applications, but should also allow HSP amendments to be submitted between application submissions. As noted above, NHTSA agrees. GHSA specified that NHTSA should not require States to provide formal quarterly submissions of HSP amendments, but should continue to require States to amend the annual grant application prior to beginning project performance. NHTSA agrees. The agency proposes very limited revisions to the existing regulatory text in order to update the text for the BIL's triennial framework. We replace all but one reference to the HSP ( see § 1300.32(c)) with annual grant application to clarify that all amendments, even amendments updating the triennial HSP will be submitted as amendments to the annual grant application. Historically, most amendments relate to project-level details. We update § 1300.32(b) to require States to provide complete and updated project and subrecipient information prior to beginning project performance. NHTSA also proposes to add language to remind States that approval of an amendment to the annual grant application does not constitute approval of the project; States remain independently responsible to ensure that projects constitute an appropriate use of highway safety grant funds.

The CT HSO and GHSA both expressed concern about the amount of time it currently takes NHTSA to approve amendments, with GHSA recommending that NHTSA respond to HSP amendments within 5 business days and resolve amendments within 30 days. NHTSA appreciates the feedback and strives and will continue to strive to respond promptly to States. However, some amendments present novel issues or complexities, and NHTSA's ability to resolve amendments is dependent on receiving all information required to adequately assess the request.

WI BOTS requested clarification regarding the types of substantive changes to the triennial HSP and annual grant application that would require amendments. States are required to provide project and subrecipient information for all projects funded during the grant year; the BIL provides that States may submit this information throughout the grant year as the information becomes available. See23 U.S.C. 402(l)(1)(C)(ii). States must, therefore, provide updated project information as it becomes available, and at a minimum prior to beginning project performance. NHTSA will not approve a voucher for payment if the voucher is inconsistent with project and subrecipient information in the annual grant application. In addition, if a State adds a new project to the annual grant application, but that project cannot be linked to an existing countermeasure strategy for programming funds in the triennial HSP, the State will have to submit an amendment updating the triennial HSP to provide the required information to support the countermeasure strategy.

3. Vouchers and Project Agreements (23 CFR 1300.33)

NHTSA proposes two limited changes to the requirements relating to vouchers and project agreements. First, NHTSA proposes 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 is 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.

In addition, NHTSA proposes to extend the deadline for States to submit a final voucher from 90 days to 120 days, consistent with the extension for closeout provided in 2 CFR 200.344.

4. Program Income (23 CFR 1300.34)

The agency deleted the regulatory provision on program income in the last rulemaking, opting instead to rely on the OMB Uniform Administrative Requirements to address program income. However, in the years since finalizing the last rule, NHTSA has found that the removal increased confusion for grantees about which rules relating to program income apply to NHTSA grant funds. Accordingly, NHTSA now proposes to reinstate the regulatory language on program income, targeted at the use of program income within NHTSA's grant programs. The proposed language is modelled on the prior regulatory language, but has been updated to reflect updates to 2 CFR 200.307 and 2 CFR 1201.80.

5. Annual Report (23 CFR 1300.35)

The most significant change to the administrative requirements for NHTSA's grant program is the BIL's codification of the annual report. 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 at 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 provides that the State must describe any plans to adjust the strategy for programming funds in order to achieve performance targets, if applicable. See23 U.S.C. 402(l)(2).

The NSC commented that States should be required to provide regular annual information on programs, including participants, use of funds, and updates on tracked performance measures. NHTSA notes that the annual report fulfills these functions. NASEMSO suggested that NHTSA require annual report content to be provided in a well-structured format, including qualitative explanations related to obstacles and successes in order to assist with future planning in the State and to serve as a resource to other States. NHTSA agrees that a well-structured format will make annual reports more accessible to stakeholders, the public, and other States in terms of allowing ease of reading and comparison between State reports. The agency has therefore proposed a structure for the report that provides for two sections: a performance report and an activity report. In the past, NHTSA has provided States with a voluntary template for reporting. NHTSA seeks comment on whether States find this helpful and whether they would support NHTSA creating a mandatory template. If yes, NHTSA also seeks comments on the substance of the template.

GHSA noted that the BIL provides 120 days for States to submit an annual report after the end of the fiscal year and requested that NHTSA implement that provision. NHTSA has done so. In addition, GHSA noted that the BIL's codification of the annual report is limited to performance reporting and requested that NHTSA remove all aspects of the prior annual report that are not explicitly required by the BIL. GHSA opined, however, that NHTSA could retain the requirement to report HVE activities because it places a low burden on States who already collect that information.

NHTSA notes that the annual report serves many purposes for NHTSA's grant program. As provided in the BIL, it serves as the State's required annual performance report, consistent with 2 CFR 200.329. In order to satisfy the requirements of 2 CFR 200.329, NHTSA proposes to also require States to describe how the projects funded under the grant contributed to meeting the States' performance targets. States are also required, as a condition of receiving Federal grant funds, to submit annual financial reports. See2 CFR 200.328. Because the BIL requires States to update project information provided in the annual grant application throughout the year, NHTSA believes that the updated project information in the annual grant application provides the information that is required financial reporting and therefore does not propose to require duplicative information in the annual report. However, as a result it is vital that States provide updated project information in the annual grant application no later than 120 days after the close of the fiscal year, to match the deadline for the annual report.

Additionally, because NHTSA has implemented several grant requirements through certifications and assurances, it is important for grant oversight that NHTSA get year-end information to ensure that States have met those assurances. As a result, NHTSA proposes the activity report section of the annual report. As part of the annual activity report, NHTSA proposes to require States to provide a description of all projects and activities funded and implemented for each countermeasure strategy, including the total amount of Federal funds expended and the zip codes in which projects were performed (or identification as a State-wide project), an explanation of reasons for projects that were planned but not implemented, and a description of how the projects were informed by the meaningful public participation and engagement described in the State's triennial HSP. The intent of the requirement to provide location information via zip code is for NHTSA to understand where the funding is being utilized compared with the State's problem ID and performance targets. The agency seeks comment on whether there is a better metric to achieve this same goal. The agency requires an explanation as to why projects were not implemented in order to understand why the State has veered from the projects it identified to apply for the grant. The agency proposes to require the State to provide a description of how projects were informed by meaningful public participation and engagement in order to ensure that the public participation and engagement described in the State's planning process in the triennial HSP impacted the State's highway safety program in implementation, not just planning. See23 U.S.C. 402(b)(1)(B). See also the discussion about Meaningful Public Engagement, above. NHTSA also proposes to require the State to describe the evidence-based enforcement program activities, including discussion of the community collaboration efforts and data collection and analysis required by the BIL. See23 U.S.C. 402(b)(1)(E). Finally, NHTSA proposes to retain the requirement that States submit information regarding mobilization participation.

6. Appeals of Written Decision by the Regional Administrator (23 CFR 1300.36)

GHSA requested two amendments to the regulatory appeal process at 23 CFR 1300.36 that provides the process for formal appeals of the written decisions of NHTSA Regional Administrators to the NHTSA Associate Administrator, Regional Operations and Program Delivery. GHSA requested a requirement that NHTSA responses to State appeals be made in writing, not via an informal email or in a phone call. NHTSA agrees. A formal written appeal that meets the requirements of section 1300.36 is entitled to the same level of response as required of the appeal. We propose regulatory text to clarify that NHTSA must reply in writing. Second, GHSA requested that NHTSA amend the regulation to allow States to appeal decisions of the Associate Administrator to the Administrator. The agency declines to accept this recommendation. The Associate Administrator is delegated authority to exercise the powers and perform the duties of the Administrator with respect to the grants to States under chapter 4 of title 23. See49 CFR 501.8(i). As such, the Associate Administrator has the authority to issue determinations on grant appeals on behalf of the agency.

7. Disposition of Unexpended Balances (23 CFR 1300.41)

NHTSA proposes to extend the deadline for submitting a final voucher from 90 days to 120 days in order to align with the timeframe for closeout in 2 CFR 200.344. GHSA requested that NHTSA ensure that notifications regarding unexpended funds under 23 CFR 1300.41(b)(2) be sent to the State highway safety office director, not solely to the Governor's Representative. NHTSA notes that the GR is required to be responsible for the State's highway safety program and must therefore maintain communication with the SHSO director. That said, NHTSA will be mindful to include all appropriate contacts in communications with the State.

VII. Request for Comments

Historically, NHTSA was unable to request comments on regulations implementing these grant programs in connection with new authorizations due to lead-time constraints. As BIL afforded the necessary lead-time, the agency was pleased to issue the earlier RFC and associated public meetings as the first step in this process, and the comments we received informed today's notice. NHTSA is equally pleased to now request comments on all aspects of this NPRM from all interested stakeholders. This section describes how you can participate in the process.

How do I prepare and submit comments?

Your comments must be written in English. To ensure that your comments are correctly filed in the docket, please include the docket number NHTSA-2022-0036 in your comment. Your comments must not be more than 15 pages long. NHTSA established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments, and there is no limit on the length of the attachments. If you are submitting comments electronically as a PDF (Adobe) file, we ask that the documents please be scanned using the Optical Character Recognition (OCR) process, thus allowing NHTSA to search and copy certain portions of your submissions. Please note that pursuant to the Data Quality Act, in order for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at https://www.gpo.gov/fdsys/pkg/FR-2002-02-22/pdf/R2-59.pdf . DOT's guidelines may be accessed at https://www.transportation.gov/dotinformation-dissemination-qualityguidelines .

Tips for Preparing Your Comments

When submitting comments, please remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

• Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

• Make sure to submit your comments by the comment period deadline identified in the DATES section above.

How can I be sure that my comments were received?

If you submit your comments to NHTSA's docket by mail and wish DOT Docket Management to notify you upon receipt of your comments, please enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.

How do I submit confidential business information?

If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under FOR FURTHER INFORMATION CONTACT . When you send a comment containing confidential business information, you should include a cover letter setting forth the information specified in 49 CFR part 512.

In addition, you should submit a copy from which you have deleted the claimed confidential business information to the Docket by one of the methods set forth above.

Will NHTSA consider late comments?

NHTSA will consider all comments received before the close of business on the comment closing date indicated above under DATES . To the extent practicable, we will also consider comments received after that date. If interested persons believe that any information that the agency places in the docket after the issuance of the NPRM affects their comments, they may submit comments after the closing date concerning how the agency should consider that information for the final rule. However, the agency's ability to consider any such late comments in this rulemaking will be limited due to the time frame for issuing a final rule. If a comment is received too late for us to practicably consider in developing a final rule, we will consider that comment as an informal suggestion for future rulemaking action.

How can I read the comments submitted by other people?

You may read the materials placed in the dockets for this document ( e.g., the comments submitted in response to this document by other interested persons) at any time by going to https://www.regulations.gov. Follow the online instructions for accessing the dockets. You may also read the materials at the DOT Docket Management Facility by going to the street address given above under ADDRESSES .

IX. Regulatory Analyses and Notices

A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 13563, and DOT Regulatory Policies and Procedures

NHTSA has considered the impact of this rulemaking action under Executive Order 12866, Executive Order 13563, and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed under Executive Order 12866 or Executive Order 13563. This action establishes revised uniform procedures implementing State highway safety grant programs, as a result of enactment of the Infrastructure Investment and Jobs Act (IIJA, also referred to as the Bipartisan Infrastructure Law or BIL). While this Notice of Proposed Rulemaking (NPRM) would establish minimum criteria for highway safety grants, most of the criteria are based on statute. NHTSA has no discretion over the grant amounts, and its implementation authority is limited and non-controversial. Therefore, this rulemaking has been determined to be not “significant” under the Department of Transportation's regulatory policies and procedures and the policies of the Office of Management and Budget.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601 et seq.) requires agencies to evaluate the potential effects of their proposed and final rules on small businesses, small organizations, and small governmental jurisdictions. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the proposed rulemaking is not expected to have a significant economic impact on a substantial number of small entities. The Small Business Regulatory Enforcement Fairness Act (SBREFA) amended the RFA to require Federal agencies to provide a statement of the factual basis for certifying that an action would not have a significant economic impact on a substantial number of small entities.

This NPRM is a rulemaking that will establish revised uniform procedures implementing State highway safety grant programs, as a result of enactment of the Infrastructure Investment and Jobs Act (IIJA, also referred to as the Bipartisan Infrastructure Law or BIL). Under these grant programs, States will receive funds if they meet the application and qualification requirements. These grant programs will affect only State governments, which are not considered to be small entities as that term is defined by the RFA. Therefore, I certify that this action will not have a significant impact on a substantial number of small entities and find that the preparation of a Regulatory Flexibility Analysis is unnecessary.

C. Executive Order 13132 (Federalism)

Executive Order 13132 on “Federalism” requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” 64 FR 43255 (August 10, 1999). “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, an agency may not issue a regulation with Federalism implications that imposes substantial direct compliance costs and that is not required by statute unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments or the agency consults with State and local governments in the process of developing the proposed regulation. An agency also may not issue a regulation with Federalism implications that preempts a State law without consulting with State and local officials.

The agency has analyzed this rulemaking action in accordance with the principles and criteria set forth in Executive Order 13132. First, we note that the regulation implementing these grant programs is required by statute. Moreover, the agency has determined that this NPRM would not have sufficient Federalism implications as defined in the order to warrant formal consultation with State and local officials or the preparation of a federalism summary impact statement. Nevertheless, NHTSA notes that it has consulted with States representatives through public meetings, continues to engage with State representatives regarding general implementation of the BIL, including these grant programs, and expects to continue these informal dialogues.

D. Executive Order 12988 (Civil Justice Reform)

Pursuant to Executive Order 12988 (61 FR 4729 (February 7, 1996)), “Civil Justice Reform,” the agency has considered whether this proposed rule would have any retroactive effect. I conclude that it would not have any retroactive or preemptive effect, and judicial review of it may be obtained pursuant to 5 U.S.C. 702. That section does not require that a petition for reconsideration be filed prior to seeking judicial review. This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

E. Paperwork Reduction Act

Under the procedures established by the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.), Federal agencies must obtain approval from the OMB for each collection of information they conduct, sponsor, or require through regulations. A person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. The Information Collection Request (ICR) described below has been forwarded to OMB for review and comment. In compliance with these requirements, NHTSA asks for public comments on the following proposed collection of information for which the agency is seeking approval from OMB.

Agency: National Highway Traffic Safety Administration (NHTSA).

Title: State Highway Safety Grant Programs.

Type of Request: New collection.

OMB Control Number: Not assigned.

Form Number: N/A (Highway Safety Plan and Annual Plan).

Requested Expiration Date of Approval: Three years from the approval date.

Summary of Collection of Information: On November 15, 2021, the President signed into law the “Infrastructure Investment and Jobs Act” (the Bipartisan Infrastructure Act, or BIL), Public Law 117-58, which reauthorized highway safety grant programs administered by NHTSA. Specifically, these grant programs include the Highway Safety Program grants (23 U.S.C. 402 or Section 402), the National Priority Safety Program grants (23 U.S.C. 405 or Section 405), and a separate grant on racial profiling restored (with some changes) from a previous authorization (Sec. 1906, Pub. L. 109-59, as amended by Sec. 4011, Pub. L. 114-94, or Section 1906). The BIL requires NHTSA to award these grants to States pursuant to a rulemaking.

The BIL alters the structure of the Section 402 grant program, replacing the current annual Highway Safety Plan (HSP), which serves as both a planning and application document, with a triennial HSP and an annual grant application. The BIL also removes one grant program and adds two new grant programs (preventing roadside deaths and driver and officer safety education), but otherwise does not significantly change the structure of the Section 405 grants. The statute provides that States must submit two documents to apply for Section 402, Section 405 and Section 1906 grants: a triennial Highway Safety Plan (HSP), which serves as a planning document, and an annual grant application. It further codifies an annual report that States must submit at the end of the grant year.

The information collected under this proposed rulemaking is to include a triennial HSP consisting of information on the highway safety planning process, public participation, performance plan, countermeasure strategies, and a performance report. See23 CFR 1300.11. It also includes an annual grant application consisting of updates to the triennial HSP, project and subrecipient information, applications for Section 405 and Section 1906 grans, and certifications and assurances. See23 CFR 1300.12. After award of grant funds, States are required to update the project and subrecipient information ( see23 CFR 1300.12 and 23 CFR 1300.32) and to submit an annual report, assessing performance and verifying compliance with assurances provided in the grant application. See23 CFR 1300.35. In addition, as part of the statutory criteria for certain Section 405 grants (occupant protection and impaired driving countermeasures), States may be required to receive assessments of their State programs in order to receive a grant. As part of the assessment process, States must provide information and respond to questions.

Description of the Need for the Information and Use of the Information: As noted above, the statute provides that the triennial Highway Safety Plan and annual grant application are the basis for State applications for the grants identified each fiscal year. This information is necessary to determine whether a State satisfies the criteria for grant awards. The annual report tracks progress in achieving the aims of the grant program. The information is necessary to verify performance under the grants and to provide a basis for improvement.

Description of the Likely Respondents: This collection impacts the 57 governmental entities that are eligible to apply for grants under the NHTSA Highway Safety Grant Program (the 50 States, the District of Columbia, Puerto Rico, American Samoa, Guam, the Northern Mariana Islands, the U.S. Virgin Islands, and the Bureau of Indian Affairs on behalf of Indian tribes). These respondents will hereafter be referred to as “State respondents.” This collection also impacts the subject matter experts and administrative assistants who are involved in performing assessments for the grant program. NHTSA estimates that there will be approximately 260 assessor respondents per year.

Frequency: The triennial Highway Safety Plan (HSP) is a planning document for a State's entire traffic safety program and outlines the performance targets and countermeasure strategies for key program areas as identified by State and Federal data and problem identification. The annual grant application provides project level information and applications for the Section 405 and Section 1906 grants. By statute, States must submit, and NHTSA must approve, the triennial HSP and annual grant application as a condition of providing Section 402 grant funds. States also are required to submit their Section 405 and Section 1906 grant applications as part of the annual grant application. States must submit the triennial HSP once every three years and an annual grant application every fiscal year in order to qualify for grant funds. As described above, assessments may be required for a State to apply for certain Section 405 grant programs and are submitted once every five years. In addition, States provide an annual report evaluating their progress under the programs.

Estimate of the Total Annual Reporting and Recordkeeping Burden Resulting from the Collection of Information: NHTSA calculates the estimated burden hours for all State applicant respondents and for the non-State subject matter experts and administrative assistants who conduct assessments for the States.

The estimated burden hours for the collection of information for State applicants are based on all eligible respondents for each of the grants:

• Section 402 grants: 57 (fifty States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the Secretary of the Interior);
• Section 405 Grants (except Motorcyclist Safety Grants) and Section 1906 Grant: 56 (fifty States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands); and
• Section 405, Motorcyclist Safety Grants: 52 (fifty States, the District of Columbia, and Puerto Rico).

We estimate that it will take each State respondent approximately 320 hours in the first year of a triennial cycle and 100 hours per year for the second and third years of the triennial cycle to collect, review and submit the required information to NHTSA for the Section 402 program. We estimate that it will take each respondent approximately 270 hours to collect, review and submit the required information to NHTSA for the Section 405 and Section 1906 program every year. We estimate that it will take each respondent approximately 88 hours per assessment to collect, review and submit the required information for the Section 405 assessments. We further estimate that it will take each respondent approximately 80 hours to collect, review and submit the required information to NHTSA for the annual reports every year.

Based on the above information, the total estimated annual burden hours averaged over the triennial cycle for all State respondents is 30,704 hours annually. The total estimated annual burden hours for all respondents in the first year is 39,064 hours; and the total estimated burden hours for all respondents in the second and third years of the cycle is 26,524 per year.

The estimated annual burden hours averaged over the triennial cycle for each State respondent is 523.3 hours, with no more than 176 additional hours if the respondent submits two assessments in a given year. The estimated annual burden hours for each respondent in the first year of the triennial cycle is 670 hours and the estimated annual burden hours for each respondent in the second and third years of the cycle is 450 hours per year. To estimate annual burden hours for each respondent, the agency has added the burden hours for the Section 402 Program, the Section 405 and Section 1906 Program and the annual reports. For each Section 405 assessment submitted by a respondent (no more than 2 assessments in a five-year period), an additional 88 hours should be added.

Assuming the average salary of individuals responsible for submitting the information is $55.17 per hour, the estimated cost averaged over the triennial cycle for each respondent is $28,870.461, with up to an additional $9,709.92 if the respondent submits two Section 405 assessments); the estimated total cost averaged over the triennial cycle for all State respondents is $1,693,939.68 per year.

These estimates are based on every eligible respondent submitting the required information for every available grant every year. However, not all States apply for and receive a grant each year under each of these programs. Similarly, under Section 405 grants, some requirements allow States to submit a criterion covering multiple years, allowing States to simply recertify or resubmit existing materials in subsequent years. Considering the agency's steps to streamline the submission process, these estimates represent the highest possible burden hours and amounts for States submitting the required information.

In addition to State applicant respondents, NHTSA estimates that there will be a total of 78 additional subject matter expert and administrative assistant respondents per year. These respondents (65 subject matter experts and 13 administrative assistants) conduct the Section 405 assessments for States and are recruited by NHTSA or the State and paid for their time. As stated above, NHTSA estimates that there will be a total of 13 assessments conducted in a year (9 assessments for Section 405 occupant protection grants, and 4 assessments for Section 405 impaired driving countermeasures grant). For these assessments, NHTSA estimates that the subject matter expert assessors spend 80 hours of time on each assessment and that the administrative assistants spend 46 hours on each assessment. Therefore, NHTSA estimates the total annual burden for the subject matter experts and administrative assistants who conduct State assessments to be 6,032 hours per year.

To calculate the estimated cost associated with the subject matter expert assessors and administrative assistants, NHTSA uses the amounts paid for these services. For assessments, the State pays each subject matter expert a flat rate of $2,700, and each administrative assistant a flat rate of $2,100. The total estimated costs associated with burden hours for all assessment respondents is $202,800.

Total Estimated Burden: Accordingly, NHTSA estimates the total annual burden hours, averaged over a triennial cycle, for all respondents to be 36,736 hours and the associated estimated total cost averaged over a triennial cycle for all respondents to be $1,896,739.68.

Comments are invited on:

• Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility.
• Whether the agency's estimate for the burden of the information collection is accurate.
• Ways to enhance the quality, utility, and clarity of the information to be collected.
• Ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.

Please submit any comments, identified by the docket number in the heading of this document, by any of the methods described in the ADDRESSES section of this document. Comments are due by October 31, 2022.

F. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in expenditures by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted annually for inflation with base year of 1995). This NPRM would not meet the definition of a Federal mandate because the resulting annual State expenditures would not exceed the minimum threshold. The program is voluntary and States that choose to apply and qualify would receive grant funds.

G. National Environmental Policy Act

NHTSA has considered the impacts of this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that this NPRM would not have a significant impact on the quality of the human environment.

H. Executive Order 13211

Executive Order 13211 (66 FR 28355, May 18, 2001) applies to any rulemaking that: (1) is determined to be economically significant as defined under Executive Order 12866, and is likely to have a significantly adverse effect on the supply of, distribution of, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. This rulemaking is not likely to have a significantly adverse effect on the supply of, distribution of, or use of energy. This rulemaking has not been designated as a significant energy action. Accordingly, this rulemaking is not subject to Executive Order 13211.

K. Executive Order 13175 (Consultation and Coordination With Indian Tribes)

The agency has analyzed this NPRM under Executive Order 13175, and has determined that today's action would not have a substantial direct effect on one or more Indian tribes, would not impose substantial direct compliance costs on Indian tribal governments, and would not preempt tribal law. Therefore, a tribal summary impact statement is not required.

L. Plain Language

Executive Order 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

• Have we organized the material to suit the public's needs?
• Are the requirements in the rule clearly stated?
• Does the rule contain technical language or jargon that isn't clear?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?
• Would more (but shorter) sections be better?
• Could we improve clarity by adding tables, lists, or diagrams?
• What else could we do to make the rule easier to understand?

If you have any responses to these questions, please include them in your comments on this NPRM.

M. Regulatory Identifier Number (RIN)

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The BIL requires NHTSA to award highway safety grants pursuant to rulemaking. (Section 24101(d), BIL; and 23 U.S.C. 406). The Regulatory Information Service Center publishes the Unified Agenda in or about April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

N. Privacy Act

Please note that anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR19477) or you may visit http://dms.dot.gov.

List of Subjects in 23 CFR Part 1300

• Grant programs—transportation
• Highway safety
• Intergovernmental relations
• Reporting and recordkeeping requirements
• Administrative practice and procedure
• Alcohol abuse
• Drug abuse
• Motor vehicles—motorcycles

For the reasons discussed in the preamble, under the authority of 23 U.S.C. 401 et seq., the National Highway Traffic Safety Administration proposes to amend 23 CFR chapter III by revising part 1300 to read as follows:

PART 1300—UNIFORM PROCEDURES FOR STATE HIGHWAY SAFETY GRANT PROGRAMS

Authority: 3 U.S.C. 402; 23 U.S.C. 405; Sec. 1906, Pub. L. 109-59, 119 Stat. 1468, as amended by Sec. 4011, Pub. L. 114-94, 129 Stat. 1512; delegation of authority at 49 CFR 1.95.

Subpart A—General

Subpart B—Triennial Highway Safety Plan and Annual Grant Application

Subpart C—National Priority Safety Program and Racial Profiling Data Collection Grants

Subpart D—Administration of the Highway Safety Grants

Subpart E—Annual Reconciliation.

Subpart F—Non-Compliance.