[Federal Register Volume 88, Number 107 (Monday, June 5, 2023)]
[Rules and Regulations]
[Pages 36472-36475]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-11758]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 490

National Highway Traffic Safety Administration

23 CFR Part 1300

[Docket No. NHTSA-2022-0036]
RIN 2127-AM45


Uniform Procedures for State Highway Safety Grant Programs

AGENCY: National Highway Traffic Safety Administration (NHTSA) and 
Federal Highway Administration (FHWA), Department of Transportation 
(DOT).

ACTION: Final rule.

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SUMMARY: This final rule amends the uniform procedures implementing the 
State Highway Safety Grant Program to waive, for fiscal year 2024, the 
requirement that targets for the common performance measures be 
identical to targets in the State Highway Safety Improvement Plan. This 
final rule makes a corresponding change to a similar requirement in the 
Federal Highway Administration's performance management regulation.

DATES: This final rule is effective on June 5, 2023.

ADDRESSES: This document may be viewed online through the Federal 
eRulemaking portal at www.regulations.gov using the docket number 
listed above. Electronic retrieval help and guidelines are available on 
the website. It is available 24 hours each day, 365 days each year. An 
electronic copy of this document may also be downloaded by accessing 
the Office of the Federal Register's website at: 
www.federalregister.gov and the Government Publishing Office's website 
at: www.GovInfo.gov.

FOR FURTHER INFORMATION CONTACT: 
    For NHTSA: Program issues: Barbara Sauers, Associate Administrator, 
Regional Operations and Program Delivery, National Highway Traffic 
Safety Administration; Telephone number: (202) 366-0144; Email: 
[email protected]. Legal issues: Megan Brown, Attorney-Advisor, 
Office of the Chief Counsel, National Highway Traffic Safety 
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590; 
Telephone number: (202) 366-1834; Email: [email protected].
    For FHWA: Kelly Morton, Office of Safety, (202) 366-8090 or via 
email at [email protected] or Dawn Horan, Office of the Chief 
Counsel, (202) 366-9615 or via email at [email protected]. Office 
hours are from 8 a.m. to 4:30 p.m., E.T., Monday through Friday, except 
Federal holidays.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Waiver of Identical Targets for Common Performance Measures
III. Waiver of Notice and Comment
IV. Regulatory Analyses and Notices

I. Background

    The National Highway Traffic Safety Administration (NHTSA) and the 
Federal Highway Administration (FHWA) share three common performance 
measures in their highway safety programs--total fatalities, rate of 
fatalities, and total serious injuries--and have shared these common 
performance measure for many years. Both NHTSA and FHWA regulations 
require States to submit identical targets for the three common 
performance measures--in NHTSA's triennial Highway Safety Plan (HSP) 
and in FHWA's Highway Safety Improvement Plan (HSIP) annual report. See 
23 CFR 1300.11(b)(3)(ii)(C) and 23 CFR 490.209(a)(1), respectively.
    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 
provided additional grant funds to States and changed several 
requirements to support States in their efforts to strengthen their 
highway safety programs. Among other things, the BIL required that all 
performance targets submitted to NHTSA in the triennial HSP demonstrate 
constant or improved performance. 23 U.S.C. 402(d)(4)(A)(ii).
    NHTSA published a final rule implementing the Highway Safety Grant 
Program under the BIL on February 6, 2023, at 88 FR 7780. The rule 
provides

[[Page 36473]]

direction to States on procedures for meeting the statutory 
requirements governing their highway safety grant programs and 
applications. Among other things, the rule requires States to submit 
constant or improved targets for the common performance measures and 
that these targets be identical to the targets that are reported by the 
State DOT in the HSIP annual report. See 23 CFR 1300.11(b)(3)(ii)(B). 
Stakeholders have raised questions about the interplay between NHTSA's 
and FHWA's current regulations. Additionally, FHWA has not yet 
completed a new regulation implementing any changes to its performance 
measures since the passage of the BIL. Therefore, States have not had 
the opportunity to comment on proposed FHWA requirements that may be 
affected by the NHTSA regulation's requirement for identical targets. 
FHWA will soon release a notice of proposed rulemaking concerning its 
performance measures that will address this issue.\1\
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    \1\ https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202210&RIN=2125-AG06.
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II. Waiver of Identical Targets for Common Performance Measures

    In this rulemaking, NHTSA amends 23 CFR 1300.11 to insert paragraph 
(b)(3)(iv), which waives, for fiscal year 2024, the requirement that 
performance targets submitted for common performance measures be 
identical to the State DOT targets reported in the HSIP annual report. 
NHTSA also makes a conforming amendment to 23 CFR 1300.11(b)(3)(ii)(C). 
FHWA makes a similar change to its regulation. With these changes, 
State Highway Safety Offices (HSOs) and State DOTs have the flexibility 
to submit non-identical targets for the common performance measures for 
fiscal year 2024. However, States must still submit targets for these 
common performance measures along with the other targets they are 
required to submit, and all targets submitted to NHTSA for all 
performance measures must show constant or improved performance 
compared to the current safety levels, as required by statute. See 23 
U.S.C. 402(k)(4)(A)(ii) and 23 CFR 1300.11(b)(3)(ii)(B)(2).
    While NHTSA and FHWA are affording States flexibility not to submit 
identical targets for fiscal year 2024 highway safety programs, HSOs 
are nevertheless encouraged to continue setting identical targets in 
collaboration with their colleagues in State Departments of 
Transportation as they work together to implement a Safe System 
Approach and reduce deaths and injuries on our roadways.

III. Waiver of Notice and Comment

    NHTSA and FHWA find good cause to issue, without notice and 
comment, and to make effective immediately, this time-limited waiver of 
the requirement for identical targets, in accordance with 5 U.S.C. 
553(b)(B) and (d)(1). The Administrative Procedure Act provides that 
when an agency, for good cause, finds that notice and public comment 
are impractical, unnecessary, or contrary to the public interest, the 
agency may issue a final rule without providing notice and an 
opportunity for public comment (5 U.S.C. 553(b)(B)). For the same 
reason, the rule can become effective immediately. See 5 U.S.C. 
553(d)(1). The safety programs of NHTSA and FHWA are governed by 
different statutory provisions, and FHWA has not completed its notice 
and comment rulemaking on the National Performance Management Measures 
since the passage of BIL. NHTSA and FHWA recognize the importance of 
allowing time for States to provide comments on the FHWA program, but 
also recognize that HSOs must meet the upcoming statutory July 1 
deadline to submit their triennial Highway Safety Plans for the NHTSA 
program and State DOTs must meet the August 31 deadline to submit their 
safety performance targets in their HSIP annual reports. States' 
efforts to develop their triennial Highway Safety Plans are well 
underway at this time, and it is critical that States be provided 
certainty about application criteria. With these considerations in 
mind, NHTSA finds it in the public interest to waive, for fiscal year 
2024 Highway Safety Programs, the regulatory requirement in 23 CFR 
1300.11(b)(3)(ii)(C) that performance targets submitted for the common 
performance measures (fatalities, fatality rate, and serious injuries) 
in the triennial Highway Safety Plan be identical to the targets 
submitted by the State DOT in the Highway Safety Improvement Program 
report, and to make this waiver effective immediately. Likewise, FHWA 
finds it in the public interest to waive the regulatory requirement in 
23 CFR 490.209(a)(1) that the State DOT targets shall be identical to 
the targets established by the State Highway Safety Office for the 
common performance measures, and to make this waiver effective 
immediately.

IV. Regulatory Analyses and Notices

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

    NHTSA and FHWA have considered the impact of this rulemaking action 
under Executive Order 12866 (as amended by Executive Order 14094), 
Executive Order 13563, and the Department of Transportation's 
regulatory policies and procedures. This rulemaking document was not 
reviewed by the Office of Management and Budget (OMB) under Executive 
Order 12866. This action is not expected to impose any costs because it 
makes limited revisions to the uniform procedures implementing State 
highway safety grant programs. This rulemaking has been determined to 
be not ``significant'' under the Department of Transportation's 
regulatory policies and procedures and the policies of OMB.

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 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 final rule makes limited revisions to the uniform procedures 
implementing State highway safety grant programs, which were previously 
determined to not have a significant impact on a substantial number of 
small entities. The grant programs impacted by this rule will affect 
only State governments, which are not considered to be small entities 
as that term is defined by the RFA. Therefore, we 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 and FHWA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials

[[Page 36474]]

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 
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 agencies have analyzed this rulemaking action in accordance 
with the principles and criteria set forth in Executive Order 13132. 
The limited revisions made by this rulemaking provide flexibility to 
State applicants. The agencies have therefore determined that this 
final rule 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.

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 rule 
would have any retroactive effect. We 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), a person is not required to respond to a collection of 
information by a Federal agency unless the collection displays a valid 
Office of Management and Budget (OMB) control number. This rulemaking 
does not establish any new information collection requirements.

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 
rulemaking would not meet the definition of a Federal mandate because 
any potential 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 and FHWA have considered the impacts of this rulemaking 
action for the purposes of the National Environmental Policy Act. The 
agencies have determined that this rulemaking would not have a 
significant impact on the quality of the human environment and 
qualifies for the categorical exclusion at 23 CFR 771.117(c)(20).

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.

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

    The agencies have analyzed this rulemaking under Executive Order 
13175 and have determined that this 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.

J. 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 FR 19477), or you may visit DOT's 
Privacy Policy website at https://www.transportation.gov/dot-website-privacy-policy.

List of Subjects

23 CFR Part 490

    Bridges, Highway safety, Highways and roads, Reporting and 
recordkeeping requirements.

23 CFR Part 1300

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

    Issued in Washington, DC, under authority delegated in 49 CFR 
1.81, 1.85, and 1.95.
Andrew Rogers,
Deputy Administrator, Federal Highway Administration.
Sophie Shulman,
Deputy Administrator, National Highway Traffic Safety Administration.

    In consideration of the foregoing, NHTSA and FHWA amend 23 CFR 
parts 490 and 1300 as follows:

Title 23--Highways

PART 490--NATIONAL PERFORMANCE MANAGEMENT MEASURES

0
1. The authority citation for part 490 continues to read as follows:

    Authority:  23 U.S.C. 134, 135, 148(i) and 150; 49 CFR 1.85.

Subpart B--National Performance Management Measures for the Highway 
Safety Improvement Program

0
2. Amend Sec.  490.209 by adding a sentence at the end of paragraph 
(a)(1) to read as follows:


Sec.  490.209  Establishment of performance targets.

    (a) * * *
    (1) * * * For fiscal year 2024 only, the performance targets 
submitted under this paragraph are not required to be identical to the 
targets established by

[[Page 36475]]

the State Highway Safety Office for the common performance measures.
* * * * *

PART 1300--UNIFORM PROCEDURES FOR STATE HIGHWAY SAFETY GRANT 
PROGRAMS

0
3. The authority citation for part 1300 continues to read as follows:

    Authority:  23 U.S.C. 402; 23 U.S.C. 405; Sec. 1906, Pub. L. 
109-59, 119 Stat. 1468, as amended by Sec. 25024, Pub. L. 117-58, 
135 Stat. 879; delegation of authority at 49 CFR 1.95.

Subpart B--Triennial Highway Safety Plan and Annual Grant 
Application

0
4. Amend Sec.  1300.11 by:
0
a. Adding ``Except as provided in paragraph (b)(3)(iv) of this 
section,'' at the beginning of paragraph (b)(3)(ii)(C); and
0
b. Adding paragraph (b)(3)(iv).
    The addition reads as follows:


Sec.  1300.11  Triennial Highway Safety Plan.

* * * * *
    (b) * * *
    (3) * * *
    (iv) For fiscal year 2024 only, the performance targets submitted 
for common performance measures under paragraph (b)(3)(ii)(C) of this 
section are not required to be identical to the State DOT targets 
reported in the HSIP annual report.
* * * * *
[FR Doc. 2023-11758 Filed 6-2-23; 8:45 am]
BILLING CODE 4910-59-P