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Billing Code: 4910-59-P

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety Administration 

Federal Highway Administration 

23 CFR Parts 490 and 1300 

Docket No. NHTSA-2022-0036 

RIN 2127-AM45

Uniform Procedures for State Highway Safety Grant Programs 

AGENCY: National Highway Traffic Safety Administration (NHTSA), Federal 

Highway Administration (FHWA); Department of Transportation (DOT). 

ACTION: Final rule. 

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 [INSERT DATE OF PUBLICATION IN THE 

FEDERAL REGISTER]. 

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: barbara.sauers@dot.gov. Legal issues: Megan Brown, Attorney-Advisor, Office of 

the Chief Counsel, National Highway Traffic Safety Administration, 1200 New Jersey 

[NHTSA notes: The Agency is submitting the following document for publication in the Federal Register. While NHTSA has 

taken steps to ensure the accuracy of this version of the document, it is not the official version. Please refer to the official 

version in a forthcoming Federal Register publication, which will appear on GPO’s website (https://www.govinfo.gov/) and on 

Regulations.gov in Docket No. NHTSA-2022—0036 (https://www.regulations.gov/docket/NHTSA-2022-0036/). Once the 

official version of this document is published in the Federal Register, this version will be removed from the Internet and 

replaced with a link to the official version.]
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Avenue SE, Washington, DC 20590; Telephone number: (202) 366-1834; E-mail: 

megan.brown@dot.gov. 

For FHWA: Kelly Morton, Office of Safety, (202) 366-8090 or via email at 

kelly.morton@dot.gov or Dawn Horan, Office of the Chief Counsel, (202) 366-9615 or 

via email at . Office hours are from 8 a.m. to 4:30 p.m., E.T., 

Monday through Friday, except Federal holidays. 

dawn.horan@dot.gov

Electronic Access and Filing 

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 Web site. 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 Web site at: www.federalregister.gov and the 

Government Publishing Office’s Web site at: www.GovInfo.gov. 

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—
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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 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 
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requirement for identical targets. FHWA will soon release a notice of proposed 

rulemaking concerning its performance measures that will address this issue.1

 

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. 

1 https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202210&RIN=2125-AG06
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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 5 U.S.C. § 553(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, 
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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 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 
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(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, 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 and FHWA 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 
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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. 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), 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. 
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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). 
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The agencies have analyzed this rulemaking under Executive Order 13175 and 

have 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.

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 FR19477) or you may visit http://dms.dot.gov. 

List of Subjects 

23 CFR Part 490 

Bridges, Highway safety, Highways and roads, Incorporation by reference, 

Reporting and recordkeeping requirements. 
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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.

 

Issued in Washington, D.C., 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 title 23, Code of 

Federal Regulations, parts 490 and 1300 as follows: 

Title 23 – Highways 
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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. 

PART 490 – NATIONAL PERFORMANCE MANAGEMENT MEASURES

Subpart B – National Performance Management Measures for the Highway Safety 

Improvement Program

2. Amend § 490.209 by revising paragraph (a)(1) to read as follows: 

§ 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 the 

State Highway Safety Office for the common performance measures. 

* * * * * 

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 or authority at 49 CFR 

1.95. 

PART 1300 – UNIFORM PROCEDURES FOR STATE HIGHWAY SAFETY 

GRANT PROGRAMS

Subpart B – Triennial Highway Safety Plan and Annual Grant Application 

4. Amend § 1300.11 by revising paragraph (b)(3)(ii)(C) and adding paragraph (b)(3)(iv) 

to read as follows: 

* * * * * 

(b) * * * 

(3) * * * 
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(ii) * * *

(C) Except as provided in paragraph (b)(3)(iv), * * * 

* * * * * 

(iv) For fiscal year 2024 only, the performance targets submitted for common 

performance measures under paragraph (b)(3)(ii)(C) are not required to be identical to the 

State DOT targets reported in the HSIP annual report. 

* * * * *