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) State Highway Safety Grant Program has used a performance-based planning process for many years. Initially, some States used performance measures as part of program planning on a voluntary basis. In 2012, Congress mandated the use of performance measures for all States.^[1] The statute authorizing NHTSA's State Highway Safety Grant Program currently requires States to submit performance measures in the triennial Highway Safety Plan (HSP). 23 U.S.C. 402(k)(4)(A). NHTSA's regulation governing the grant program requires that the targets for three of the required performance measures—total fatalities, rate of fatalities, and total serious injuries—be identical to the targets that States report to the Federal Highway Administration (FHWA) in the Highway Safety Improvement Program (HSIP) annual report. See 23 CFR 1300.11(b)(3)(ii)(C). In 2021, the “Infrastructure Investment and Jobs Act” (IIJA) ^[2] amended the performance measure provisions to require that all performance targets submitted to NHTSA in the triennial HSP demonstrate constant or improved performance. 23 U.S.C. 402(k)(4)(A)(ii).

NHTSA published a final rule implementing the Highway Safety Grant Program under IIJA on February 6, 2023, at 88 FR 7780. The rule provides direction to States on procedures for meeting the statutory requirements governing their highway safety grant programs and applications. In addition to changing performance targets submitted to NHTSA in an annual HSP to a triennial HSP, the rule implemented the statutory requirement that States submit constant or improved targets for the common performance measures and continued the long-standing regulatory requirement 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).

On June 5, 2023, NHTSA and FHWA issued a rulemaking in which NHTSA amended the uniform procedures implementing the State Highway Safety Grant Program to waive, for fiscal year 2024, the requirement that targets for common performance measures in the triennial HSP be identical to targets in the HSIP. 88 FR 36472. On January 25, 2024, FHWA released a notice of proposed rulemaking concerning its performance measures that addressed and sought comment on this issue. 89 FR 4857. On May 6, 2024, NHTSA and FHWA issued another joint regulation to address the identical targets requirement. 89 FR 37113. In that rulemaking, NHTSA amended the requirements for the Annual Grant Application to provide that States may amend common performance targets in the years between submission of their triennial HSPs only if necessary to submit identical performance targets to FHWA. Id.

II. Waiver of Identical Targets for Common Performance Measures

In this rulemaking, in response to stakeholder questions, NHTSA amends 23 CFR 1300.11 to waive the requirement that the targets for common performance measures submitted in the State's FY 2027 triennial HSP be identical to those in the HSIP annual report submitted August 31, 2026. Although this action affords States flexibility to continue to use non-identical targets for FY 2027, NHTSA encourages State Highway Safety Offices (HSOs) and State DOTs to continue to collaborate as they work together to implement a Safe System Approach and reduce deaths and serious injuries on our roadways.

III. Waiver of Notice and Comment

NHTSA finds good cause to issue, without notice and comment, and to make effective immediately, this waiver of the requirement for identical targets, in accordance with 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3). 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 (5 U.S.C. 553(d)(3)). The safety programs of NHTSA and FHWA are governed by different statutory provisions. IIJA requires States, for purposes of NHTSA's highway safety grant program, to submit performance targets that demonstrate constant or improved performance. 23 U.S.C. 402(k)(4)(A)(ii). FHWA's statute establishing safety performance measures for the purpose of carrying out the HSIP, 23 U.S.C. 150, and its corresponding regulation, 23 CFR 490, do not require constant or improved performance. NHTSA's regulations currently require that this performance target be identical to FHWA's performance target. FHWA is currently undertaking notice and comment rulemaking on the National Performance Management Measures since the passage of IIJA. NHTSA recognizes the importance of allowing ( printed page 60301) time for States to provide comments on the FHWA program, but also recognizes that HSOs must meet the statutory July 1 deadline to submit their triennial HSPs for the NHTSA program. NHTSA further recognizes that State DOTs must meet the August 31 deadline to submit their safety performance targets in their HSIP annual reports. State efforts to develop their FY 2027 triennial HSPs are underway at this time, and it is critical that States be provided certainty about application criteria. With these considerations in mind, NHTSA finds it impracticable and not in the public interest to provide prior notice and opportunity for comment on this amendment to the regulation to clarify that NHTSA waives, for FY 2027, the requirement that the targets be identical. For these same reasons, NHTSA finds good cause to make this amendment effective immediately.

IV. Regulatory Analyses and Notices

A. Executive Order 12866 (Regulatory Planning and Review)

NHTSA has considered the impact of this rulemaking action under Executive Order (E.O.) 12866.^[3] This rulemaking does not meet the criteria of a “significant regulatory action” under E.O. 12866. Therefore, the Office of Management and Budget (OMB) has not reviewed this proposed rule under that E.O.

States must submit performance measures in the triennial HSP to receive a highway safety grant. The revisions made by this rule do not remove the requirement to provide performance measures; instead, it merely allows States to submit performance measures that are not identical to the performance measures submitted to the FHWA. As a result, this action is not expected to impose any costs.

B. Executive Order 14192 (Unleashing Prosperity Through Deregulation)

This rulemaking is an E.O. 14192 ^[4] deregulatory action. The rulemaking provides increased flexibility and decreases administrative burden for States by removing the requirement that certain performance measures submitted in the triennial HSP be identical to measures submitted to FHWA in the HSIP annual report.

C. 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 of 1996 (Pub. L. 104-21, 110 Stat. 857) 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, NHTSA certifies that this action will not have a significant impact on a substantial number of small entities and finds that the preparation of a Regulatory Flexibility Analysis is unnecessary.

D. Executive Order 13132 (Federalism)

E.O. 13132, “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 E.O. 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 E.O. 13132, an agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs 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.

NHTSA analyzed this rulemaking action in accordance with the principles and criteria set forth in E.O. 13132. The limited revisions made in this rulemaking provide flexibility to State applicants. NHTSA has therefore determined that this final rule would not have sufficient federalism implications as defined in the E.O. to warrant formal consultation with State and local officials or the preparation of a federalism summary impact statement.

E. Executive Order 12988 (Civil Justice Reform)

With respect to the review of the promulgation of a new regulation, section 3(b)(2) of E.O. 12988, “Civil Justice Reform” (61 FR 4729, Feb. 7, 1996), requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) clearly specifies the preemptive effect; (2) clearly specifies the effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct, while promoting simplification and burden reduction; (4) clearly specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General.

NHTSA has reviewed this rulemaking action and determined that it conforms to the applicable standards in section 3(b)(2) of E.O. 12988, Civil Justice Reform. The issue of preemption is discussed above in connection with E.O. 13132 (Federalism). NHTSA believes that this final rule specifies clearly the waiver of the requirement that certain performance measures submitted to NHTSA in the triennial HSP be identical to those submitted to FHWA in the HSIP annual report and the related technical changes to the regulatory text to reflect the change to the triennial HSP. The amendments do not take effect retroactively. NHTSA notes further that there is no requirement that a recipient submit a petition for reconsideration before they may file suit in court.

F. 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. NHTSA has an existing information collection that covers State submissions under the Highway Safety Grant Program. The OMB Control Number for the information collection is 2127-0760. This rulemaking does not ( printed page 60302) impact existing burden or cost estimates or establish any new information collection requirements.

G. 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 (in 2025, $206 million adjusted for inflation with base year of 1995). This rulemaking would not result in annual State expenditures exceeding the minimum threshold. Further, this rulemaking action updates NHTSA's State highway safety grant program, a voluntary program, and States become eligible in part based on the choice to submit an application.

H. National Environmental Policy Act

The Department has analyzed the environmental impacts of this final rule pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321, et seq.). NHTSA has determined that this rule is categorically excluded pursuant to 23 CFR 771.118(c)(4). Categorical exclusions are categories of actions that the agency has determined normally do not significantly affect the quality of the human environment and therefore do not require either an environmental assessment (EA) or environmental impact statement (EIS). See DOT Order 5610.1D § 9. In analyzing the applicability of a categorical exclusion (CE), the agency must also consider whether extraordinary circumstances are present that would warrant the preparation of an EA or EIS. Id. § 9(b). A DOT Operating Administration (OA) may apply CEs established in another OA's procedures. Id. § 9(f). To do so, the OA “must evaluate the action for extraordinary circumstances identified in the OA procedures in which the CE is established to determine if a normally excluded action may have a significant impact and coordinate with the originating OA to ensure that the CE is being applied correctly.” Id.

This rulemaking, which waives the requirement for certain identical performance measures from the triennial HSP, is categorically excluded pursuant to 23 CFR 771.118(c)(4), “Planning and administrative activities not involving or leading directly to construction, such as: Training, technical assistance and research; promulgation of rules, regulations, directives, or program guidance; approval of project concepts; engineering; and operating assistance to transit authorities to continue existing service or increase service to meet routine demand.” NHTSA has coordinated with the Federal Transit Administration to ensure that this CE is being applied correctly. NHTSA does not anticipate any environmental impacts, and there are no extraordinary circumstances present in connection with this rulemaking.

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

E.O. 13175 (65 FR 67249, Nov. 9, 2000) requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. NHTSA has assessed the impact of this rule on Indian Tribes and determined that this action would not have Tribal implications that require consultation under E.O. 13175.

J. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801, et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule to each House of the Congress and to the Comptroller General of the United States. NHTSA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this rule in the Federal Register . Because this rule does not meet the criteria in 5 U.S.C. 804(2) for a major rule, it will be effective upon publication in the Federal Register .

K. Regulation Identifier Number (RIN)

DOT assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda twice a year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

L. Privacy Act

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to inform its rulemaking process. DOT posts these comments, without edit, to www.regulations.gov, as described in the system of records notice, DOT/ALL-14 FDMS, accessible through www.dot.gov/​privacy. To facilitate comment tracking and response, NHTSA encourages commenters to provide their name, or the name of their organization; however, submission of names is optional. 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, or other entity). For information on DOT's compliance with the Privacy Act, please visit www.transportation.gov/​privacy.

In consideration of the foregoing, NHTSA amends title 23, Code of Federal Regulations, part 1300 as follows:

91 FR 60300